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Supreme Court Justice, Ruth Bader Ginsburg; Education Secretary Betsy DeVos' new policy rules; CNN Heroes; Aired 4-5p ET

Aired September 02, 2018 - 16:00   ET

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.

[16:00:00] FREDRICKA WHITFIELD, CNN ANCHOR: -- Sunday, I'm Fredricka Whitfield.

Right now the final good-bye to Senator John McCain. We just saw this, the military honoring the late senator with this Missing Man Formation flyover. These Navy F-18 jets, and -- four of them and then one peeling off, the final salute to a fallen pilot.

After a week of public mourning and celebration of McCain's life, his family and close inner circle friends are now or have been saying their last final good-byes at a private burial service at the U.S. Naval Academy which just wrapped up moments ago.

His final resting place right next to his long-time friend and naval classmate, Admiral Chuck Larson. It was a pact the two men made decades ago, a true testament to the senator's loyalty and pride in his roots. Chuck Larson's wife telling CNN Chuck has his wingman back now.

CNN's Brian Todd is outside the U.S. Naval Academy. You saw, felt it, heard it firsthand that flyover taking place. Describe it for us.

BRIAN TODD, CNN CORRESPONDENT: Right, Fredricka. Just when we were talking to you on the air in anticipation of this and kind of recapping the ceremony these four F-18 fighter jets flew right over our heads. My team and I looked right above and I was looking at it live on the air when they flew right above us, and one of them peeled off. And really usually, very often they peel off to the side, but this is one, this pilot peeled off almost directly above. He just made a cut straight up. It was a really powerful moment.

You know, this -- this may been, you know, easily one of the most powerful symbols in a week of just incredible symbolism and incredible moments that we've lived through in saying good-bye to Senator John McCain. There really is something about a flyover, you just can't take your eyes off of it. Everybody watches it and for those few seconds that you're witnessing it, you really just become very moved by it. It is a wonderful sendoff, a wonderful symbol for a naval aviator and certainly John McCain's family and those who knew him can appreciate that the most.

You talked about Admiral Chuck Larson. They got their wings together at the Pensacola naval station back in the late '50s, early '60s. And they made a pact about 20 years ago or so to be buried together. Admiral Larson came back to his wife one day and said, by the way, I've just got be a burial place here at the Naval Academy cemetery and by the way John is going to be next to me, and I think that they arranged for their spouses to be there as well.

So again just a great story and a very powerful moment that we're living through right now, this final sendoff to a great American pilot, senator and just a great public servant.

WHITFIELD: Mm-hmm. What an emotional finality. All right. Thank you so much, Brian Todd.

President Trump will get a second opportunity to make a lasting impact on the United States Supreme Court when his nominee Brett Kavanaugh goes before the U.S. Senate for confirmation hearings this week. It will be the second such showdown over a justice since the president took office in January of 2017.

This is as the White House says it's using executive privilege to hold back more than 100,000 pages of documents related to Kavanaugh's time as a lawyer in George W, Bush's administration. Senate minority leader Chuck Schumer calls the decision a Friday night document massacre, in reference to Watergate, and Democrats claiming Republicans are trying to force through Kavanaugh's nomination without the proper scrutiny.

Let's go to CNN White House correspondent Boris Sanchez for more on the Trump administration's reasons for blocking these documents.

Boris, what's the explanation?

BORIS SANCHEZ, CNN WHITE HOUSE CORRESPONDENT: Hey, there, Fred. Yes, William Burke, the attorney who's been charged with overseeing the release of these documents, wrote a letter to Senate Judiciary Committee chairman Chuck Grassley on Friday essentially explaining why he chose to hold back more than 100,000 pages worth of documents related to Brett Kavanaugh's time here at the White House.

His justification was constitutional privilege, which actually says in that letter that former President George W. Bush who Kavanaugh worked for asked him to be as transparent as possible in this process. The Democrats, though, do not feel that has happened. You saw the tweet from Minority Leader Chuck -- Schumer, I should say, beyond that you have deputy press secretary Raj Shah putting out a statement this weekend about the release of these documents saying that there have not been more transparency for other Supreme Court nominees of the 400,000 or so pages that have already been released are substantial.

Further, there are questions about where Brett Kavanaugh stands on a number of key hot button issues, namely abortion and "Roe v. Wade," something that the Trump administration has repeatedly promised to overturn. Senator Lindsey Graham of South Carolina was asked about where he expects Brett Kavanaugh to stand on that issue on "STATE OF THE UNION" earlier today speaking to Dana Bash. Listen to what he said.

(BEGIN VIDEO CLIP) SEN. LINDSEY GRAHAM (R), SOUTH CAROLINA: Well, here's what I hope he'll do. If there's a case before him that challenges "Roe v. Wade" that he would listen to both sides of the story, apply a test to overturn precedent.

[16:05:07] Precedent is important, but it's not invalid. I'm dying to see if he believes that "Citizens versus United" can be overturned. The bottom line here is there's a process to overturn a precedent and I think he understand that process. He will apply it. And if it were up to me states would make these decisions, not the Supreme Court. But it is a long-held precedent of the court. It will be challenged over time and I hope he will give it a fair hearing.

(END VIDEO CLIP)

SANCHEZ: The confirmation hearing for Kavanaugh begin on Tuesday. So far President Trump has not weighed in on that this weekend -- Fred.

WHITFIELD: All right. Thank you so much, Boris Sanchez. Appreciate it.

All right, with me now is CNN contributor and former general counsel for the Federal Election Commission, Larry Noble.

Larry, very good to see you.

LARRY NOBLE, FORMER GENERAL COUNSEL, FEDERAL ELECTION COMMISSION: Good to see you.

WHITFIELD: Let's start off with the reminder of why this is such an important Supreme Court nomination. So Kavanaugh is replacing Anthony Kennedy who cast a swing vote on several major cases. Talk to us about the significance and the level of importance of a confirmation of a Kavanaugh.

NOBLE: This is critically important to the court because Justice Kennedy was a swing vote on many important issues including abortion, marriage equality, some campaign finance cases, and really what you get here with Kavanaugh is Trump's opportunity to switch the court to a very conservative court and to take these decisions that have been 5-4 in the direction of upholding abortion rights, upholding campaign finance laws or certain campaign finance laws, and switching it around.

You know, when they talk about precedent, precedent when you're dealing with the Supreme Court is good only as long as the Supreme Court says it's good. When you have five justices who say we no longer want to file that precedent, the precedent is gone. So I think it's disingenuous for people to say well, we expect him to look at these cases very closely, and we expect them to follow precedent.

I think the expectation is that in fact he will be now the swing vote to undo much of what Kennedy stood for and what much of the rest of the court stood for. So I think we're going to see if he does -- if he is confirmed, and I suspect he will be, I think we're going to see some major changes in the Supreme Court jurisprudence. WHITFIELD: So confirmation hearings beginning Tuesday, customarily

the U.S. Senate wants full transparency, but now we know reportedly there's this 100,000, you know, documents the White House refuses to release, you know, executive privilege is the protection in which they can do that. At the same time, this was at the urging of George W. Bush's, you know, lawyer William Burke, right, who really was encouraging this, and I'm quoting now from a "New York times" article saying that these documents reflect deliberations, candid advice concerning the selection and nomination of judicial candidates, the confidentiality of which is critical to any president's ability to carry out this core constitutional executive function."

So is this more so a protection of a prior administration as opposed to this White House feeling like it is protecting its candidate?

NOBLE: Well, we don't know without knowing what's in the documents, but my suspicion is, it's protecting this candidate. They can release these documents if they want. They should release these documents. They are really rushing this through, and the concern is what do these documents show about the type of advice he gave George W. Bush and where he stands on various issue because while he was advising George W. Bush, there are a lot of important issues that came up that will come before the court.

So I think, you know, the whole idea here is to try to rush this through as fast as possible. They obviously want to get it through before the election. And they are not only shortcutting the process, they are depriving senators and the public from really a full vetting of Kavanaugh.

WHITFIELD: And so with the president or at least people around him under investigation, the special counsel probe which has resulted in something like 39, you know, indictments and some of including some guilty pleas, how much of that do you think or questions about those things will be, you know, peppered, you know, to Kavanaugh? What is the expectation of how he can answer these questions without really undermining decisions that may potentially come or challenges that may potentially come to the U.S. Supreme Court?

NOBLE: Right. The classic thing that they do is that they'll say that I'm not going to make any statement about how I would rule on anything or discuss any open questions, but the problem with Kavanaugh right now is that he has expressed a belief in writings and in opinions in what you'd call a strong executive branch, a strong presidency, and that the president has a lot of authority.

And even though he was involved with the impeachment of Clinton, he now said that he doesn't think the president should be really subject to the civil suits, and he thinks the president has a lot more authority than a lot of other people do.

[16:10:01] He doesn't really necessarily believe in total checks and balances. He doesn't necessarily believe in independent agencies. And that's really critical when you have a president under investigation. If he thinks the president has really this tremendous amount of authority to protect himself and is not subject to investigation, then what you removed in the Supreme Court is one of the checks on the president.

If the Supreme Court just rubber stamps whatever the president wants in terms of stopping an investigation or eliminating an investigation, then we really have a serious problem. And that's actually my major concern is right now we have a Congress that doesn't seem to be really inclined to investigate the president, and if we have a Supreme Court who says that the Department of Justice really can't investigate the president, because it is either outside their authority or because the president can shut it down any time he wants, then the president goes on unchecked. And leaving Donald Trump unchecked is a really concerning thing.

WHITFIELD: Leaving any president unchecked, right?

(LAUGHTER)

NOBLE: Any president. But any president unchecked is a concerning thing, but you have a president here by his own words has said that he doesn't necessarily believe in the norms that other presidents have followed. And we have not had another president who's attacked his own Department of Justice, the FBI, the intelligence community the way this president has. So that -- you know, and when you have a president that's attacking everything around him, you want to make sure you have the other safeguards that the Constitution provides in terms of checks and balances.

WHITFIELD: Larry Noble, thank you so much. Appreciate it.

NOBLE: Thank you. Thank you.

WHITFIELD: All right. President Trump preparing to hit the campaign trail this week. Coming out swinging as we inch closer to the November midterms but will his political endorsements pack as much of a punch this time around? We will discuss coming up.

(COMMERCIAL BREAK)

[16:15:49] WHITFIELD: All right. President Trump heads to Montana for a campaign rally this Thursday. The president is expected to give an update on his economic policies and promote Republican candidates ahead of the midterms including GOP Senate candidate Matt Rosendale.

Joining me now right now to discuss this and other big political headlines, Alice Stewart, Republican strategist and former communications director for Ted Cruz, and Democratic strategist Howard Franklin.

Good to see you, guys.

ALICE STEWART, CNN POLITICAL COMMENTATOR: Great to be here.

HOWARD FRANKLIN, DEMOCRATIC STRATEGIST: Good afternoon.

WHITFIELD: OK. So Trump is in, you know, fairly comfortable territory, Montana, and winning it by 20 points. Rosendale's Democratic challenger, Senator Jon Tester, is running for a third term and considered one of the more vulnerable incumbents.

So, Alice, do Republicans have a real standing chance here?

STEWART: It is positive for Republicans, and every race whether they were talking congressional or Senate or governor's race, it is a case by case basis. And I always shy away from saying a one-size-fits-all with regard to predicting races, but the reality is, if the economy is going strong and we get Republican enthusiasm going, we'll be in good shape.

The key is voter enthusiasm, as you all both know midterms, it's all about getting out your base to vote, and a recent poll shows that 76 percent of Hillary Clinton voters are committed and only 67 percent of Trump voters. So we have to turn those numbers around. We have to make sure and get them enthused, and get them out there, not just on the economy but really reminding them hey, if you don't turn out to vote, Democrats could be in charge.

WHITFIELD: Wow, then that's particularly important when you've got this new ABC News-"Washington Post" poll showing the president's disapproval rating hitting a new high point at 60 percent. And despite his almost daily attacks on the Russia investigation, 63 percent of people support the job that Robert Mueller has been doing.

So do you balance those two? I mean, potentially how could this impact turnout for Montana or perhaps even midterms?

STEWART: Well, the key is -- we keep seeing these rallies that the president has been out, the turnout is around the corner, and they will come out there and they support him. The key is making sure that he energizes them and gets them out to vote.

I've traveled the country over the past several weeks talking with Republican voters. Many of them, his base, they are not fazed by the Russia investigation, they are not fazed by payoffs to porn stars and Playmates. They are not fazed by a lot of what we talk about in Washington, New York, here in Atlanta.

(CROSSTALK)

WHITFIELD: What his sentiment on even John McCain, the handling of, the not being invited because a good bit of his base does honor, respect love John McCain. Might this have been, you know, an area in which people felt conflicted, Trump supporters?

STEWART: There are people -- were conflicted on that. John McCain is a war hero, he is an American hero, he is someone that should be revered and honored and respected. A lot of Republicans did have a little heartburn over the way that the president responded to this. Having said that, at the end of the day, it is about policy. It is about jobs, it is about the economy. And as long as that is strong, Republicans are in good shape.

WHITFIELD: OK. So, Howard, so now you've got President Trump, you know, immediately, you know, taking to Twitter on all of this saying that it was inaccurate, talking about the polling ahead of the 2016 election, and, quote, "they will never learn." He called it a suppressional poll.

FRANKLIN: Suppressional poll. So, you know, the credibility of American pollsters aside, I mean, we saw an upset in Florida. Obviously Donald Trump was the beneficiary of an upset just over -- or just less than two years ago. So yes, putting polling aside, the fact that he's only going to places where he's already going to get a warm reception, and he's already challenging the likely incumbent who's a Democrat says a lot about where he is welcomed in this country.

And I think more to the point, when you are acknowledging how much his megaphone approach has really drowned out the message, Republicans should be shouting from the rooftops. They got, you know -- they put conservatives on the high court. They've been able to pass a tax cut. And for whatever reason he has made us think about everything except for that. And you got both Houses of Congress and the White House, you should have a pretty clear message about what you've been the last two years.

WHITFIELD: So why is that?

FRANKLIN: I think --

WHITFIELD: What's the psychology be on that?

FRANKLIN: He's the disruptive president. I don't think there's anything to -- you know, to be intonated or to be taken from what he's doing because there isn't necessarily a playbook.

[16:20:07] I think he's flying by the seat of his pants, and thus far it has worked. But when he was the singular candidate he was able to succeed. Now he's got candidates up and down the ballot, depending on him to raise money, to raise, you know, the enthusiasm of the Republican Party, I think he's going to be finding himself in a tough spot.

WHITFIELD: And then, Alice, you know, boy, how perplexing is Texas, you know, Donald Trump, Ted Cruz were a nemesis, you know, and now it's -- Donald Trump will be heading to Texas campaigning for Ted Cruz.

You once worked in the Ted Cruz camp, how does something like this come about?

STEWART: This is something that -- where the president realizes or the Republicans realize he has popularity, and he can energize people, and really connect with the base. It is valuable the candidate that isn't running for office and it's valuable to Republicans overall. And look, I was in the midst of the back and forth with President Trump and Senator Cruz on the presidential campaign trail, but politics is hard.

And when you're running in a high stakes, very heated presidential campaign, all bets are off. You do anything and everything you can to the win, and that is -- WHITFIELD: But not to sound like, you know, it was playground stuff,

but, you know, the president started it, right? I mean, didn't he start it? You know, with the Lying Ted and then going after his wife, and then even placing blame that Ted Cruz's dad had something to do with the assassination of JFK. I mean, that is deep, heavy stuff, and for Ted Cruz to now embrace or be -- or see it as an attribute for the president to campaign for him, it's confusing.

FRANKLIN: I mean, that speaks to whether or not this Beto O'Rourke challenge is a real one, right? And the polling there, and the president may try to discount it, but the polling there says that Beto is closing in and a point or two behind and pretty much most of the recent -- you know, recent segments that have been done, they looked at how close this race is running, so with another two months to go, I think this could be a nail biter, and would you have ever expect a nail biter statewide in Texas?

STEWART: Well, and here's the thing. RealclearPolitics has Ted up by over 4.5 points. And here's the key thing. Beto O'Rourke has not been vetted, not been tested, he has gotten the red carpet treatment from media. Now we're finding out he --

WHITFIELD: He looks like the nice guy.

STEWART: He is -- I am sure he is a very nice guy. That means that now we know that he fled the scene of a DUI back in '98, and there are going to be a lot of other stories that look into his past because he hasn't had the true vetting by the voters and the more they learn about him, they are going to realize he doesn't truly represent the values of Texas which is certainly strong on immigration, strong on reducing federal government regulations, big on jobs and also the Supreme Court. Texas is a red state. They're not going to go -- they're not going to go blue certainly because --

(CROSSTALK)

WHITFIELD: Usual politics can get dirty, campaigning can get dirty. Look at Florida, however, right now with, you know, so much race- baiting whether it's robocalls or whether it's, you know, the Republican nominee using the word monkey, you know, in reference to the Democratic, you know, nominee. How ugly, how bad, how will, you know, the electorate respond to that ultimately?

FRANKLIN: Yes, imagine at this point, I mean, we've been able to put up with 19 months of President Trump from his megaphone on Twitter saying whatever he liked to say, whenever he'd like to say about whomever he disagrees with. I'm hoping, I expect that some level the voters are tuning some of this out, but certainly, Florida is a multicultural melting pot of a state. It's not a state where you don't have lots of black and brown voters who know what those dog whistles mean, who've heard them in campaigns before.

WHITFIELD: But like anywhere turnout for a midterm, that's the challenge.

FRANKLIN: That's exactly right. That's what the challenge has been in Florida for many years. I think the same thing is true. In Texas, the one thing that's not in question is, are the voters there to push this blue wave across the state, most states, and I think they both are there.

STEWART: And the key Florida has got some big races, not -- they got of course the Senate race, they've got the governor's race, they have a lot of -- there are a lot of good reasons for people on both sides of the aisle to come out and vote. But the key is strong candidates. DeSantis is a good candidate. He made a bad mistake. He should not have said that word.

WHITFIELD: Should he apologize?

STEWART: I think he should. If I was advising that campaign, I would say, you know, I apologize, it was a bad choice of words. I truly don't feel like he meant it the way it's being perceived.

WHITFIELD: Because they feel it's beneficial not to apologize.

STEWART: That's --

FRANKLIN: That's the question.

STEWART: That's the question, but I don't think he meant it the way it's being perceived. I feel like he should apologize and put this behind him. But his policies are right for Florida. And I think that's --

WHITFIELD: Yes. That's one of those words that, you know, you just don't -- that seems awfully intentional. I think that would be the interpretation by most.

FRANKLIN: Makes you feel that way about it.

WHITFIELD: All right. Alice, Howard, good to see you. Thanks very much. Appreciate it.

FRANKLIN: Thank you

WHITFIELD: All right. Another twist in the tale of the president and his attorney general, but as Jeff Sessions and President Trump's feud intensifies, who will Republicans side with heading into the November elections? We'll break it all down coming up.

(COMMERCIAL BREAK)

[16:29:23] WHITFIELD: Republican members of Congress have been privately pleading with President Trump not to fire U.S. Attorney General Jeff Sessions at least not yet. The concern is that the president and the party could face potential fallout ahead of the midterm elections. Trump has recently stepped up attacks on his own attorney general tweeting about how Sessions hasn't served him well and has no control over the Department of Justice. Even saying this in a recent interview.

(BEGIN VIDEO CLIP) DONALD TRUMP, PRESIDENT OF THE UNITED STATES: I'd just like to have Jeff Sessions do his job, and if he did, I'd be very happy, but the job entails two sides, not one side.

(END VIDEO CLIP)

WHITFIELD: Trump's criticism of course has been aimed at Sessions' decision to recuse himself from the Russia investigation.

Let me bring back CNN contributor Larry Noble and Julian Zelizer is a CNN political analyst and professor at Princeton University.

Good to see you both. Good to see you both. All right, so Julian you first, when it comes to Sessions, you know, what is potentially at stake, because (Inaudible) there is, you know, reportedly Papadopoulos and his, you know, last minute appeal to try to get a reduced sentence, a filing that infers that Sessions may have purgered himself when it comes down to that whole, you know, Trump Tower meeting.

Might this give the President yet a new reason, if he were to fire him -- that he has untrustworthy or something?

JULIAN ZELIZER, POLITICAL ANALYST, CNN: Sure. But a lot of the Republicans are not eager to do this. They're worried that going into the midterms, if he does, this, it will cause the kind of the firestorm that almost ensures the blue wave that people are talking about. It will also tie up potentially the Supreme Court nomination process, which is really what Republicans want to focus on.

And finally, back to Mueller, the obstruction issue is front and center it seems from what we are hearing. And so this could end up playing directly into that part of the investigation. So there are many reasons not to do it. I don't know if that will stop President Trump, but certainly, the rationales for not doing it are there.

WHITFIELD: And then Larry, what about all this talk about deadlines, deadlines for the Robert Mueller, you know, investigation to wrap up. Rudy Giuliani is saying, you know, we're giving you, you know, until Labor Day September. It has to happen before -- I mean is there a deadline. Is there a rule or is it just a custom that the special, you know counsel would not make a decision or reveal anything that could potentially influence an election like the midterm?

LARRY NOBLE, FORMER GENERAL COUNSEL, FEDERAL ELECTION COMMISSION: Right. There is no rule. It is a custom and it is a consideration of the Department of Justice. That when you are within 60 days of an election, you want to try to avoid doing anything that may affect that election, but it doesn't mean that you can't do something, and they obviously have to weigh the importance of what they're doing.

Obviously, Rudy Giuliani would love to have this investigation wrapped up as soon as possible and would love to just bring it to a close. And every defense attorney would love to be able say the investigation of my client is going to end on such a date. It does not work that way. So there is no such rule. WHITFIELD: And Julian, I mean there is not supposed to be a professed

allegiance that the U.S. Attorney General has for the President. However, when you are hear Lindsey Graham, who, you know, months ago, you know, had said there would be holy hell to pay if the President were to get rid of a Jeff Sessions, and then he has only revised his thinking, saying well, the two don't get along. And so it would understandable if the President were to do something after the election.

I mean what is the message there that you would have a senator, such as a Lindsey Graham say something like that? Does this help empower the President?

ZELIZER: Absolutely. This is the same message that most Senate Republicans have been sending the President throughout the presidency on all issues. They condemn him on the one hand for certain statements or threats, but then they kind of waiver. And basically, don't do much to show that they would stand firm if the President did something like trying to remove Attorney General Sessions.

I think that when you have someone like Senator Graham say that, it does get into his head and might undercut those Republican fears about the political consequences of firing Sessions.

WHITFIELD: And then Larry, if you are Sessions, what do you do with all of this swirling around you?

NOBLE: Well, you know, it is weird defending Sessions, because he has done things that are very questionable. And as the Papadopoulos statement showed that the real serious questions about what he did with the Russians and whether or not he approved or tacitly approved the idea of meeting with Putin. So, you know if you are Sessions right now, obviously he wants to hold to his job and the reaction maybe a difference between him deciding to resign versus being forcing the President to fire him.

WHITFIELD: Yeah.

NOBLE: Because there is a vacancy act, which allows the President to the replace somebody who resigns. But it is not clear that it allows the President to immediately replace somebody without Senate approval if the person is fired. And so this may come into play. Now if Sessions' relationship with Trump is really that bad, he may decide to force Trump to fire him. And that is my guess that he would decide to force Trump to fire him after the election.

And I agree with Julian. It's going to after the election, because I don't think they want the political fallout from it right now.

WHITFIELD: Yeah. It's fascinating, continues to be confusing, because yes, there were lot of people who have been very critical of Jeff Sessions, and some of those same people who are kind of rallying, because, you know, of the sequence of events that have transpired in the last year and a half, almost two now.

(CROSSTALK) WHITFIELD: Yeah. Go ahead.

ZELIZER: I just want to say very quickly, Fredricka, that, you know, it is not that people are defending Jeff Sessions, what they're trying to do is keep a wall up against Trump going after Mueller and after Rosenstein. It is not about Jeff Sessions. If you could replace him with somebody who would take that job seriously, not look at it as two sides but look at it as one side, which is justice, then I think people would say, fine, let Sessions go.

[16:35:07] WHITFIELD: Right. It is the institutions that people -- some have been trying to protect. All right, Larry Noble, Julian Zelizer, thank you so much. Appreciate it.

ZELIZER: Thank you.

NOBLE: Thank you.

WHITFIELD: All right. We will be back.

(COMMERCIAL BREAK)

WHITFIELD: Welcome back. Litigator, role model, dissenter, U.S. Supreme Court Justice, Ruth Bader Ginsburg, has earned many titles and accolades during her ground-breaking career. And now, the new CNN original film, RBG, takes an intimate look at the personal and professional life of Justice Ginsburg who has developed an impressive legal legacy, while becoming quite the unexpected pop culture icon.

(BEGIN VIDEO CLIP)

[16:40:09] UNIDENTIFIED FEMALE: Just the thought they might catch a glimpse of her is overwhelming. I have a mug of hers in my room that says history in the making.

UNIDENTIFIED FEMALE: (Inaudible) I just ordered tons of merch.

UNIDENTIFIED FEMALE: The notorious RBG.

(CROSSTALK)

UNIDENTIFIED FEMALE: I think it is easy to take for granted the position that young women can have in today's society, and that's a lot in thanks to Justice Ginsburg's work.

UNIDENTIFIED FEMALE: Who is more disdained or told to go away than an older woman? But here is an older woman who people really want to hear everything that she has to say.

(END VIDEO CLIP)

WHITFIELD: And joining me now is Dahlia Lithwick, a Senior Editor at Slate and host of the podcast, Amicus. Good to see you. I think it is really fascinating to the hear these young ladies, you know, speak with such admiration for Justice Ginsburg, and at the same time looking at the video of the people waiting, you know, for her to arrive on any college campus across the country, and then to see the way that justice almost seems like she is shy and reserved. But then you listen to her, and you are like she is a force.

DAHLIA LITHWICK, SENIOR EDITOR, SLATE MAGAZINE: It is true. She is such an improbable hero, because she really is so controlled and so careful. Every word she chooses is so careful. And the whole arc of her career has been incrementalist and institutionalist. This is not like a ninja warrior, and yet you're right. She's turned it into this 85 year old a rock star.

And I think it's because in a way, she is kind of the anti-Trump. She's so careful, so intellectual, so careful for institutions that women have just flocked to her.

WHITFIELD: But this is not like an epiphany for her. I mean when you say, you know, she is opposite of Trump, but she has been this way. I mean she is consistent. But what it is about now that if it is a now thing that suddenly, you know, there this moniker, you know, not Notorious BIG, but Notorious RBG, you know, and that there is following that has galvanized so many people. I mean they get t- shirts. There are, you know, mugs. I mean what is it about now?

LITHWICK: You know she is so funny. She loves this. She said I'm 85 years old and suddenly everybody wants to take a picture with me. And I think it is because, you know, her mother always said when she was a child, her mother said, be lady-like and never show anger. And she devoted her whole career to using the law, right? She didn't march in the 60s. She used the law.

And she was so spectacularly careful to never offend and never insult. And something started happening even before Trump, where she started writing these scorching dissents and these blistering, blistering opinions. She just torqued in her late 70s and became a warrior after a whole career of being incredibly controlled. And I think people love that. It speaks to us somehow.

WHITFIELD: Yeah. And those qualities that you describe, they are real consistencies it seems, you know, from the very start, you know, the real nucleus of her, you know, coming to be. And then among those consistencies, I can't help but notice, not to be superficial, but I love that this ponytail thing has been going on the whole time, you know.

It kind of also speaks to a, you know, a pulled together kind of controlled thing. But it is love, because you see that there is something about her that has remained the same throughout.

LITHWICK: There is an amazing line. There is a new biography of her and it's about to come out. And one of the lines in it is that she has never changed. Judge Harry Edwards who sat with her on the D.C. Circuit said she is exactly the person she has always been, and we just kind of have come to appreciate her. And I think that ponytail is so emblematic.

WHITFIELD: Oh, my goodness. And we all are waiting with faded breaths. Dahlia Lithwick, thank you so much, don't miss the new CNN film RBG tomorrow Labor Day, 9:00 p.m. Eastern and Pacific right here on CNN.

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[16:45:00] WHITFIELD: Advocacy groups are criticizing Education Secretary Betsy DeVos' new reported rules for how colleges handle sexual assault and harassment on campus. The proposed policies first reported by the New York Times bolster the rights of those accused and narrow the definition of sexual harassment. Survivors fear this could lead to less reporting of attacks.

And we have a response from the Department of Education, saying we are in the midst of a deliberative process. Any information the New York Times claims to have is premature and speculative, and therefore we have no comment. All right, joining me right now, the Executive Director of End Rape on Campus and a survivor of campus sexual assault, Jess Davidson.

Jess, good to see you, so let's talk about this definition that is being reported, and we will comment on what is being reported despite the DOE says, you know, what is out there is not complete. So it says, quote, unwelcome conduct of sexual nature to a higher standard. That is the old definition. The new draft defines it as unwelcome conduct on the basis of sex that is so severe, pervasive, and objectively offensive that it denies access to an educational program. So in your view, you know, by whose definition is severe, pervasive, and objectively offensive.

[16:50:12] JESS DAVIDSON, EXECUTIVE DIRECTOR, END RAPE ON CAMPUS: Thank you so much for having me on, Fredricka. That definition of sexual harassment is extremely concerning and will prevent many survivors from believing that would happen to them is worthy of accommodation from their institution. Yale University actually just put a very interesting report that they had their all-time highest amount of reports of sexual violence this past semester.

And just looking at my notes here, of all the reports that happened from January 1st to June 30th, 65 of them were sexual assaults, and 63 were sexual harassment. And that was under the previous definition, the firs first one that you gave. So we know from the anecdotes like this that a lot of students who come forward for Title IX remedy are coming forward for sexual harassment and sexual assault, because they feel that experiencing sexual harassment is preventing them from experiencing the equal access to their education that Title IX grants them.

That second definition that we have is so high that it essentially required the student is already losing access to their education in order to come forward at all. That's devastating, and is go going to push a lot of survivors at least out of the best education that they can get, might even push them out of school altogether.

WHITFIELD: So while the Department of Education is saying we're still working on it, and what the New York Times has reported is not necessarily accurate, and we are, you know, full. It's incomplete. Is there a need for a change in policy that would offer greater specificity if that's what the DOE might be arguing, that what has been on the books is too vague, and that there needs to be more crystallized language. Does that make matters better or worse in your view?

DAVIDSON: Well, I think that what we have here is a problem with the fact that the department rescinded old guidance from 2011 and 2014, put in interim guidance that left a lot of questions unanswered and is now going through a long process to provide us with new guidance. That has not been done in a way that in my opinion, thoroughly engages stakeholders. I was at a meeting about a year ago with Secretary DeVos, where she spent 90 minutes with survivors and advocates, and 90 minutes with the accused as well as 90 minutes with colleges and universities.

Those 90 minutes I'm fairly certain are the only 90 minutes that she has ever spent with survivors. She has had no other meetings with survivors of sexual assault. This is a complicated issue. It takes a really long time to understand. I have been doing this work for years, and I am still learning new things. So I don't think that she could've learned everything that she needs to, to make an informed decision in those 90 minutes.

And what that tells me is that this department does not care about engaging survivors of sexual assault. They don't care about hearing them. They're ignoring repeated requests for meetings. This isn't about engaging stakeholders to come up with a great process. This is about making campuses a safer place to get away with sexual assault, and making it easier for universities.

WHITFIELD: So what do you want to see before there is a comprehensive new definition, you know, or structure in which campuses should be respecting -- how do you want to see this process go about at this point? I know you have mentioned that there have been meetings that you have proposed, others have proposed, and it has not happened, but this is perhaps another plea in which you can make to try to be engaged or be involved? What would it be?

DAVIDSON: Absolutely. So the great thing about this policy, once it comes out as a final rule, the Department of Education must invite the public to comment and they must listen to the comments that the public makes. And so everybody has an opportunity to participate and notice and comment, and to speak out about -- and stop this policies they'd like to.

There are a couple of elements that the policy, that I think absolutely need to go. The first is that it would...

(CROSSTALK)

WHITFIELD: Well, quickly.

DAVIDSON: Very quickly.

WHITFIELD: Well, we have to leave it right there. I think you did propose at least three things there that you are hoping could help move the ball forward on that with the Department of Education. Jess Davidson, thanks so much. Appreciate it. DAVIDSON: Thanks for your time.

WHITFIELD: All right. We will be right back.

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[16:55:01] WHITFIELD: All right. When this week's CNN Hero first earned his pilot's license on a whim, he had no idea what he'd end up doing with it. Twice a month, Paul Steklenski spends his own money to fly dogs from high kill shelters in the south to the no kill shelters in the north. Check out his life saving and very adorable missions of love.

(BEGIN VIDEO CLIP)

UNIDENTIFIED MALE: You just look like my Tessa. I try to greet every passenger before we load them onto the aircraft to spend a few moments with them. You ready to go? So they can see me, they can smell me. Load the airplane up and then we'll make stops along the eastern coast. I'm quite certain that things are about to change. He is so calm right now. And they know things are getting better and they're not going to end up in the pound.

(END VIDEO CLIP)

WHITFIELD: All right. To see more of how Paul gives his paw-sengers the first class treatment, go to CNNheroes.com right now. All right, thanks so much for being with me this Sunday. I'm Fredricka Whitfield. The news continues right now with Ana Cabrera.