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Don Lemon Tonight
Justice Ruth Bader Ginsburg Has Died At 87. Honoring Justice Ginsburg's Legacy. Aired 11p-12a ET
Aired September 18, 2020 - 23:00 ET
THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.
[23:00:00]
IRIN CARMON, CO-AUTHOR, NOTORIOUS RBG: She really -- she got that joke, and she really enjoyed the fact that young people where seeing her as a pop star.
DON LEMON, CNN HOST: I've got to say like, that in this moment, I don't want to let anyone down and I know how this is important to everyone, especially for women. I am being told by my good friend Katie Curic that I'm saying her name wrong. And she said emphasis on Ren.
CARMON: That's OK. I want to tell you the story about the workout for a second.
LEMON: Go on, please.
CARMON: On the lighter side. I always love to tell the story, because when I interviewed her on camera on 2015. I actually asked her if it was true (inaudible) I have video evidence of that. I asked her if it was true she could do 20 push-ups, (inaudible). And she thought -- she was so precise, she was the most factual, and just (inaudible) person I have ever encountered in my life.
And she said, yes, but, we do 10 pushups and I take a breath and do 10 more. And I just thought that defined her so much, because. You know, occasionally she needed to take a breath to have good friends, to go to the opera, to enjoy life. That she was always there for round two of the 10 pushups that got her to 20. It was that tenacity and perseverance I think that captured the imagination of millions of people that looked up to her.
LEMON: Listen, I thank you for coming on this evening. And paying tribute to her. And I thank you for all of your words and for doing this film. We really appreciate it and I'm sorry that I mispronounced your name. And I'm grateful to Katie for correcting me. So, thank you both. Sorry for your loss.
CARMON: Thanks, Don.
UNIDENTIFIED FEMALE: Thanks, Don.
LEMON: Thank you. Make sure you tune in tomorrow night at 10:00 Eastern for the CNN films documentary, RBG. And this is CNN Tonight, I'm Don Lemon, its 11:00 p.m. here on the
East Coast. Our historic breaking news tonight, the death of Justice Ruth Bader Ginsburg, she passed away at her home in Washington today, surrounded by family after a long battle with cancer. Justice Ginsburg, was 87 years old. She was nominated to the high court in 1993 by President Bill Clinton.
President Trump, honoring her tonight, saying, renowned for her brilliant mind, and her powerful dissents at the Supreme Court. Justice Ginsburg demonstrated that one can disagree without being disagreeable towards ones colleagues, or different points of views. Her opinions including well-known decisions regarding the legal equality of women and the disabled have inspired all Americans and generations of great legal minds.
The Chief Justice, John Roberts, saying the nation has lost a jurist of historic stature. And that the court has lost a cherish colleague. In PR's reporting just days before her death, Ginsburg dictated this statement to her granddaughter, Clara Spera, with the bluntness she was known for, and I quote here. My most fervent wish is that I will not be replaced until a new president is installed.
CNN Senior Congressional correspondent is Manu Raju, who is up on Capitol Hill for us this evening. And he brings us the very latest. Good evening to you. Let's talk about, unfortunately, we have to talk about the bitter politics, as our colleague Dana Bash said, Mitch McConnell making it very clear, Manu that the Republican majority will try to replace Justice Ginsburg this year. Does he have the votes to do this?
MANU RAJU, CNN SENIOR POLITICAL REPORTER: That is going to be the big question that we are going to be looking at for the next few months here. Whether or not he can prevent more than three Republican Senators from breaking ranks. Right now, that majority is 53-47. If he loses more than three, that nominee will not be confirmed.
There are already several Senators who are resistant about moving forward. Some have change their views over the last several weeks and months. So, it is still uncertain whether or not they would have the votes to move forward.
What appears to be the case, talking to Republicans tonight and also from just looking at the past confirmation proceedings, typically, they take two to three months to happen. Which means that there probably is not enough time to push through a nomination before the election.
But, there is the chance of getting someone confirmed in a post- election, lame ducks session of Congress, between November and January. And that's when -- no matter what happens in November, Republicans will still be in charge of the Senate, from the two months from November to January. And also, President Trump, will still be president, until a new president, or he goes through his second inauguration in the end of January.
So, the question is going to be, whether or not the Republicans move ahead either before the election or in the lame duck session. McConnell making clear that he wants to move ahead, but he will make that decision about timing based on the votes and one other thing, Don, the number of Republicans are indicating that they want to move ahead before the election because of the concerns that they have that there could be an election year disputes in the courts, and that it could eventually wind up in the Supreme Court.
[23:05:10]
Rather than avoid a 4 4 deadlock, have a ninth justice to break a tie. Of course, that was the case in 2016, when it was a 4-4 Supreme Court, and when Mitch McConnell held open the Supreme Court for a seat that President Obama had put forward. Nevertheless, Mitch McConnell making clear, he is moving forward and he's going to move forward this year, Don.
LEMON: It's all too much. It's really all too much. I mean, it is unbelievable the amount of news and then, you have all of this happening on the same night that we break the news to the world, really. That Justice Ginsburg has passed away. A lot of Republicans, Manu, are in tough reelection campaigns. How is this going to factor in?
RAJU: It's going to be a big question. None of these Republicans need conservative voters to get behind them and to see them breaking ranks and angering their conservative base on such a significant issue, which is the makeup of the Supreme Court, would seem to be unlikely in some of these cases.
I think you could expect some of these -- a lot of these Republican Senators in tough races, to side with the president, to side with Mitch McConnell, and push forward, and to confirm a nominee. Now, one Republican Senator who is up for reelection in difficult race, Susan Collins of Maine, indicated that she is unlikely -- she does not want to confirm a nominee before November. She indicated that if Biden wins, she would also be opposed and naming and confirming a nominee in a lame duck session.
But it is still unclear if there are enough Republicans, siding with her, that would prevent the president and Mitch McConnell from moving ahead with his nomination. Getting someone confirmed to the bench. So, expect that to be the discussion and the intense focus on Capitol Hill here over the next few months.
LEMON: As you were speaking, I'm looking for some of my quotes here from Lindsey Graham and others and you know, Mitch McConnell, Lindsey Graham, Chuck Grassley and so forth. But let's go, this is 2016 that I want you to respond to. This is Senator Lindsey Graham went out of his way to insist that if the stay ever came, Manu, that he would be consistent and not support a Supreme Court nominee in an election year. We are going to play it and then I'll get your response.
(BEGIN VIDEO CLIP)
SEN. LINDSEY GRAHAM (R-SC): I want you to use my words against me. If there is a Republican president in 2016, and a vacancy occurs and the last year of the first term, you can say, Lindsey Graham said let's let the next president, whoever it might be, make that nomination. And you could use my words against me, and you would be absolutely right.
We are setting a precedent here today, Republicans are. That in the last year, at least of a lame duck eight year term, I would, it's going to be four-year term, that you are not going to feel a vacancy of the Supreme Court, based on what we are doing here today. That is going to be the new rule.
(END VIDEOTAPE)
LEMON: OK, so, listen. Over the last year, Manu, there has been a lot of hypocrisy and gone unchecked and just flagrantly out there, nobody really cares. Senator Graham is in a tough reelection fight of his life right now, do you think you he's going to keep his word?
RAJU: Well, he said he'll change his tune since then. I've actually spoken to him a few different times about this very topic in recent months and including in late July, when I asked him would you move forward with the Supreme Court nominee, if vacancy were to arise before the election.
Of course, he is the Senate judiciary committee chairman, he said, we'll see what the market would bear. We will see if there is enough support to move forward. I would like to confirm one. So, he still wants to confirm a nominee, despite those comments from 2016.
LEMON: OK, that's 2016, but I think I have one in 2018 if I'm correct. Correct me if I'm producers, but Lindsey Graham on October 2018 said, if an opening comes in the last year of a president's term and the primary processes had started, we will wait to the next election. And I've got a pretty good chance of being the judiciary chairman, pull the tape. So he said it on 2016, he said it again in 2018. And you are saying recently he has told you something else? He's change his mind?
RAJU: Yes, absolutely. Recently he has made it clear that he's open to moving ahead. He wants confirm someone and he'll see as he told me in late July, will see what the quote market would bear. In other words, we will see whether there's enough support to move forward.
And I can tell you, if President Trump is pushing for a nomination to be confirmed, Mitch McConnell is Lindsey Graham is in a difficult reelection race himself. And conservatives of South Carolina almost certainly will be on the same page as the president in the Senate majority leader.
LEMON: Well, that answers the question, doesn't it? Thank you very much. Let's go to CNN's Jim Acosta now, our chief White House correspondent, Jim Acosta standing by. Jim, hello to you. I want to talk to you about the --
JIM ACOSTA, CNN SENIOR WHITE HOUSE CORRESPONDENT: OK, thanks.
LEMON: -- Jim, can you hear me? We don't have Jim Acosta? If not, we'll go to CNN's Jessica Schneider, Jessica Schneider until Jim gets ready. [23:10:04]
Jessica Schneider is outside of the Supreme Court. Jessica, I appreciate you joining us. Earlier, when we join you, when we saw you before there were folks standing outside of the Supreme Court? They had gathered after they had heard about the death of Ruth Bader Ginsburg. Tensions were higher, earlier this evening, tell me about the scene now.
JESSICA SCHNEIDER, CNN JUSTICE CORRESPONDENT: Still a massive crowd out here, Don. You know, about three hours after we heard about the passing of Justice Ginsburg, the crowd out here remains strong. You know, we had that little bit of flare-up of tension with some hecklers who came through the crowd, shouting things, but since then, it is died down.
It is quite peaceful now. It's quite quiet and there is actually spontaneous applause that is erupting every once in a while. But everyone out here, very peaceful, really out here to honor to the life of Justice Ginsburg. You know, she served more than 27 years on this court. Chief Justice John Roberts, when he had released the statement earlier tonight when the court announced Justice Ginsburg passing.
I mean, he called her among other things, a jurist of historic stature, he called her a tireless and resolute champion of justice. Really, Ruth Bader Ginsburg, personified tireless, Don. It was just last night, that the National Constitution Center actually honored Justice Ginsburg with a liberally medal. The Justice did not attend the big event in the award ceremony, instead they had a video that was played where Kate Mckinnon was part of the tribute.
Of course Kate McKinnon, A cast member on Saturday Night Live, who portrays the notorious RBG. She's been known in popular culture. But Justice Ginsburg wrote a letter for that ceremony and she gave her thanks, she directed worth $100,000 that she was going to get from that medal. It was going to go toward. So she worked up until the end, Don. She was worked up until the end when she was battling cancer here in the final months of the term here and really all the people out here tonight, are just honoring her. They are silent, they are peaceful right now and they just have such kind words to say about her, Don.
LEMON: Jessica Schneider, thank you so much. Reporting from outside of the Supreme Court. Let's try CNN's Jim Acosta, again, our chief White House correspondent. There you are. Jim, you can hear me now?
ACOSTA: Hi, Don, I certainly can. That's right.
LEMON: So, I understand the president made a statement -- I read in just moments ago, but we are learning tonight that he is no interest in Justice Ginsburg final request and intends to quickly proceed with this nomination?
ACOSTA: That's right. I mean, that is what we are hearing from our sources, both inside the White House, and advising the campaign. I talked to a couple of Trump campaign advisers earlier this evening. One of those adviser said President Trump is going to follow the constitution, period. And you know, that tells you exactly what you need to know right now and that is this he intends to fill this vacancy on the Supreme Court.
Now, I did talk to a source close to the president. Somebody who speaks to the president frequently, earlier this evening. And this source said that you know, the president has been, quote, salivating. The word used by the source to replace Ruth Bader Ginsburg if this seat becomes open on the Supreme Court, the source going on to say that the president is keenly interested in the federal (inaudible) Court Judge Amy Coney Barrett. She is beloved inside the conservative movement. That would be a homerun for the conservative movement is she would get in the high court.
And so, obviously you are going to see a lot the president's allies up on Capitol Hill, like-minded conservatives, who are going to be pushing that kind of Supreme Court pick. But as we had been discussing throughout the evening, Don. There is such a thing as a reality of election year politics. And we are now in the nitty-gritty of the campaign, and the question becomes, can the president pushed through a highly charged picked like that when you have moderate Republicans who are fighting for reelection? People like Susan Collins up in Maine. People like, Tom Tillis down in North Carolina. Cory Gardner in Colorado and so on.
That all changes the calculus of this in real-time. But talking to people who talk to the president, who advises campaign inside the White House. He has every intent of moving very quickly and putting somebody on the Supreme Court. He told Hugh Hewitt, the conservative broadcaster back in August. Absolutely, I would like to put somebody on the Supreme Court, if a vacancy would happen.
And he said, he went to on to say, the Democrats would do it. Perhaps not fully remembering the history of Merrick Garland when back in 2016 the Democrats were in the opposite situation. President Obama had a vacancy on the Supreme Court when Antonin Scalia passed away, put up Merrick Garland and then the Republicans blocked it in the Senate. You are just going to hear and see video clips played over and over again of Lindsey Graham and other Senators who said, we are going to abide by the Merrick Garland rule if this ever happens again.
All of that is going to go out the window, because they see a golden opportunity here, Don. And that is to tilt this high court in a rightward direction and a far-right direction for a generation to come. And I think that is why you are going to see this become, I think, be vaulted in to the top two or three issues of this campaign along with the coronavirus and the economy, Don.
[23:15:21]
LEMON: Jim, let's talk about the process here. Because we have some reporting that this will be held all of this will be led, I should say, by White House counsel Pat Cipollone with heavy involvement from Mark Meadows, who is the Chief of Staff. What do you know about that?
ACOSTA: Yes, we are hearing that. I mean, that has been in the work for some time. Keep in mind that it's not as though they are going to show up at the office on Monday with a blank you know, white board in an office and say, OK, now, what do we do next? They have been gaming this out for some time. The president in the last couple of weeks put out sort of his dream team of possible picks for the Supreme Court, throwing out names like Ted Cruz, Tom Cotton, and so on.
And so, yes, of course, Pat Cipollone the White House council, lawyers inside the administration, also allies of the White House, you know, in the conservative movement around Washington. They have been feeding names to this White House, one has to think that there's been some initial vetting that has occurred for some of these picks and keep in mind, Amy Coney Barrett who I mentioned before, she was mentioned and you know, as a, on a short list the last time around when Brett Kavanaugh was picked for the Supreme Court.
One has to think, if they have to move quickly, Don, that they are going to go back to that short list along with some other names, you know, to, you know, give the likes of Josh Holly and Tom Cotton and Ted Cruz, you know, sort of a, like, you know, a nod, a wink and a nod like yes, we thought of you, but we are going to go back to some of the names like Amy Coney Barrett and so that the conservative movement would like to see.
And Don, as you know, this is a god send for President Trump. This is a stroke of luck for President Trump that he has had before. This is a Jim Comey like stroke of luck for President Trump in the remaining weeks of this campaign, because it's going to energize and animate that conservative religious conservative base that he needs to turn out in November.
LEMON: Jim, you know, I was speaking to a conservative friend as I was coming in to work and the news had broken, and they said, elections have consequences. This is what people talk about, the consequences of an election for those who are apathetic about going to vote. For those who may have even voted for a third party candidate.
He said to me, you get what you deserve. And you get who you vote for, or who you don't vote for, depending in this situation. So, this is a prime example of the importance of voting. This is what the presidential process, voting in a presidential election, this is really the big outcome. If he gets to decide. He or she gets to decide who is on the Supreme Court.
ACOSTA: Absolutely. Don. That is absolutely right. And I think, you know, you have to hand it to conservative. I think they have understood this part of the equation better than progressive had. And they have voted like the Supreme Court is at stake. In just about every election. You know at the federal and you can argue at the state level. When it comes to judicial nominees, you know, they have been thinking about how to deal with the courts. And how to pack the courts.
I mean, this has been a mission of Mitch McConnell for some time now. And he is faced with perhaps the holy grail of all holy grails from a Supreme Court standpoint, and that is to permanently lock in a conservative majority for a generation. Potentially that is what is at stake now, obviously, you know, this is a night to remember, Ruth Bader Ginsburg, for all of us who have little girls out there, Ruth Bader Ginsburg is who you want your daughter to grow up to be just like some day.
And we will all remember Ruth Bader Ginsburg as being a pioneer and a champion and a hero for women. But you can't overlook just the magnitude of what we are facing in the coming weeks here. President Trump is going to, make no mistake, exploit this as much as he can both politically and you know, for the sake of being able to pack the court and tilt the court in his direction in the Republican Party's direction for years to come.
LEMON: Jim Acosta, chief White House correspondent. Ji, thank you very much.
With me once again now, CNN's chief legal analyst Jeffrey Toobin and our senior legal analyst, Laura Coates. Good to see you both again. So, Jeffrey, this is what Mitch McConnell said, this was in May.
[23:20:00]
(BEGIN VIDEO CLIP)
UNIDENTIFIED MALE: (Inaudible).
SEN. MITCH MCCONNELL (R-KY), MAJORITY LEADER: We fill it.
(LAUGHTER)
(END VIDEO CLIP)
LEMON: I couldn't hear. Sorry, what did he say? Did anybody -- I'll fill it. OK. So he, has already said that, the Trump nominee will get a full vote on the Senate floor. And we are learning that Pat Cipollone, Mark Meadows will shepherd this process through. What are your thoughts?
JEFFREY TOOBIN, CNN SENIOR LEGAL ANALYST: Well, if it succeeds, it will be the greatest act of political hypocrisy in American history. The fact that they stop Merrick Garland with nine months to go before the election and jammed through a nominee with less than two months to go. Just shows that the words of Senators mean nothing. And all they care about is temporary political advantage.
You know, Mitch McConnell has 53 votes. He is a master of the Senate. I have learned in covering the Senate. You don't make much money voting against Mitch McConnell. But his power is not absolute here. And the egregiousness of his hypocrisy, might actually force some Senators to revisit their support for what he did four years ago.
And this is going to be a big issue in these Senate campaigns as well as in the presidential campaigns. And good luck to these Senators explaining why they stop Merrick Garland and want to jam through a Trump nominee.
LEMON: Listen, Jeffrey, not to be contrarian here, but you know -- TOOBIN: Please.
LEMON: I sit here every week night and beyond and talk about these things and you do as well. Did we really need this to point out the hypocrisy that has come out of Washington and the Senate over the past four years?
TOOBIN: Well, you know, look, I think -- you know, you make a fair point there. This is an unusually specific example of hypocrisy with unusually high stakes. You know, I think everybody knows the difference between February and September. And they know the stakes of a Supreme Court nomination.
And they also know, you know, that this is not some abstraction. This is about whether abortion is still going to be legal in much of the country. This is about, whether affirmative action is going to be legal. This is about whether campaign finance is regulated at all in the United States. Or is completely deregulated in the citizen's united kind of way. I mean, the stakes here are very clear. And you know, elections have consequences as your friend pointed out. And we will see how the voters react to this. You know, I'm out of the prediction business after 2016. But --
LEMON: Everyone sitting here right now on this show is out of the prediction business right now.
TOOBIN: Well, we should be.
LEMON: Laura, you have been standing by very patiently, thank you very much. So, everyone remembers the battle over Merrick Garland's nomination. There's (inaudible), there's a law battle over Kavanaugh as well. Now comes this. What (inaudible) is a Neil Gorsuch on so on, what do you see ahead?
LAURA COATES, CNN INTERNATIONAL LEGAL ANALYST: Turbulence, you know, the masks are going to come down soon from the sky at this point talking about an (inaudible).
LEMON: We could use them in this moment.
COATES: And I could tell you, one of the things -- we could --
LEMON: We could use masks.
(CROSSTALK)
COATES: We could. We could use masks in more than one capacity. We continue to wear your masks people. But I got to tell you, what is so ironic about all of this is that, somebody who was a good predictor, somebody who was quite (inaudible), was Justice Ruth Bader Ginsburg, because she foresaw a great deal in her dissents. She actually would include among her dissent calls to action.
For example, she is one of the key dissenters for the very Supreme Court case that dismantled the voting rights act of 1965. Jiving the preclearance (inaudible), because she was keenly aware of just how important elections were and why it was important to not disenfranchise anyone.
Over the summer, she had a case involving Iowa and said, you are putting to paraphrase her every American in the predicament of either choosing their health or exercising their Democratic right to actually vote in this country. So she was well aware of the power and she'd often look to Congress to correct the things that were a problem in the Supreme Court cases.
And now, we have the buck returning to Congress. And now we are seeing that Congress in the end. The very chamber that she has looked to do say, I would like you to correct as a matter of checks and balances in democracy, could actually undo a lot of the precedent that she had up to now. It's startling and I have to say, one of the reasons, Don, that she has become so iconic.
[23:25:03]
Particularly among younger women in this country, is because they saw her as a vehicle and a representative of what was promised when we talk about equality. What was promised about this nation having justice be blind, what was promised about all these aspects? And they saw it dwindling away, one by one, case by case. And so, if we are talking about the hypocrisy of the Senate that might be you know, coming up very soon, well, look, you have to look at the legacy of Ruth Bader Ginsburg who was able to predict this hypocrisy and relied on the checks and balances. It's time for the other branches of government to step up and afford those say in checks and balances. If they don't, it won't be a republic, because we can't keep it any longer.
LEMON: Laura --
TOOBIN: Don, if I can just add one point about one important moment where Ruth Bader Ginsburg was not (inaudible), because people asked her, when Barack Obama was president and she was already in her 80s, why don't you retire and let Obama, a Democrat, pick your successor. And she said, we don't have to worry about that, Hillary Clinton is going to be president next.
LEMON: Yes. So, you are doing as we call, kitchen table talk. And that's what I have heard from -- some say, you know, I don't understand why she did not retire then and let someone else. But listen, that is neither here nor there, here we are in this moment. Laura, just real quickly, if I can ask you, you are not just, you know, a legal analyst on this network. You an American, a woman who participates in this democracy. What does this do for women you think in the election if you can offer your analysis on that? Does this galvanize women? Especially -- I know you, you have children, you live in the suburbs. What do you think, what do you see coming here?
COATES: Well, it should light a fire that should have already been burning for every single person, democracy is not a spectator sport. And if you actually are concerned, not only about who will be in the Oval Office, but who will surround Capitol Hill, who will sit in the judiciary building not just in Washington, D.C., but all the way down to your individual states. That you have to be concerned about the administrations that you choose.
And I certainly hope that everyone watching, what they are seeing right now, understand the importance of the trickledown theory of administering as a part of the executive branch of government. It's not just one person that controls. That's a monarchy, it's everyone who will surround it and everyone who can get a lifetime appointment at the federal level or for the Supreme Court. So, I look at this as an opportunity for people to galvanize around becoming more all the more informed about who they vote for, who do you want to make the decisions that will have an impact on your life, about your body, about your children's education, your children's bodies, your children's futures and everyone in this nation.
That's the question that you are really asking, not just who will be in the Oval Office, but who will wear the robe. Who will hit the gavel, who will do all of those things? And that of course includes the state and local as well. It's an election like no other, but every single time you have the opportunity to speak and exercise your vote, you should be taking the reins with both hands and with a fist and if you don't do it, you will find yourself always in the dissenting position and not having the platform that Justice Ginsburg once had.
LEMON: And you cannot complain if you did not participate in the process. Thank you very much.
COATES: Welcome.
LEMON: Thank you. Thank you, Jeffrey, as well. I appreciate it.
Dana Bash is our chief political correspondent and she joins us again. Dana, hello to you. Justice Ginsburg deaths setting up a massive fight on Capitol Hill. You got the Senate majority leader Mitch McConnell already saying that Trump's nominee will get a vote, how do you see this playing out? Because it's going to be an ugly fight. Let's just be honest.
DANA BASH, CNN CHIEF POLITICAL CORRESPONDENT: Absolutely, and it already in unfortunately. Look, we are appropriately mourning and talking about the unbelievable life, and all the milestones all of the, not just ceilings, glass ceilings that she went through with her, by herself, but she carved out places in the glass ceiling with her legal mind for women across the board in this country.
But, the reality is, that we are fewer than 50 days before an election with now, eight Supreme Court justices, and a vacancy and the fact that this is such a polarized time.
[23:29:58]
And there is so much baggage with the notion of what to do with a vacancy in the -- close to the election baggage because of Mitch McConnell's own actions four years ago in saying, no, no, no, President Obama were not going to even give a hearing to your nominee because we're so close to an election. All of that is playing in in a really, really remarkable way. We should also say that, you know, she doesn't get a vote, but the fact that that she said to her granddaughter that she wanted a statement out there, that she does not want this president to be the one to replace her, you know, that's got to weigh on some of the senators who are really kind of in a political pickle on how to approach this in the short term.
LEMON: Yeah. Dana, I think it's important. I want to get this in to you. Senator John Thune, the number two GOP senator, backing McConnell. Here is what he says tonight.
He said, "I believe Americans sent a Republican president and Republican Senate to Washington to ensure we have an impartial judiciary that upholds the Constitution and the rule of law. We will fulfil our obligation to them. As Leader McConnell has said, President Trump's Supreme Court nominee will receive a vote on the floor of the U.S. Senate."
Now, I want you to compare that to what John Thune said in 2016. OK, everyone listening. "The American people deserve to have their votes heard on the nomination of the next Supreme Court justice, who could fundamentally alter the direction of the Supreme Court for a generation. Since the next presidential election is already underway, the next president should make this lifetime appointment to the Supreme Court."
That is -- that is -- that is a definition of hypocrisy.
BASH: And we are going to see --
LEMON: Extreme hypocrisy.
BASH: And we are going to see it over and over again when we see and hear Republicans, including you played for Manu the sound bites from Lindsey Graham, talking not just in 2016 but also in 2018, about the fact that he will not -- he said, you can use my words against me.
There will not be somebody who will be approved in the last year of a term of the president. And you can bet, as Manu said and I totally agree with him, now that he is judiciary chairman and he is in a very, very tight race in ruby red South Carolina, if he does anything to make his base mad, which is the Trump base, he is probably toast politically.
So, it's almost impossible to think that he will not go back on these words he dared everybody to use against him.
LEMON: Well, he has said -- Manu said that he said, when he asked him, I think, again this year, he said he wants to see --
BASH: Yeah, exactly.
LEMON: -- what the market bears. So that means -- yes. And plus, he is in a tight re-election and it's very conservative state.
BASH: Yeah. LEMON: But go on.
BASH: The other argument that we are starting to hear from Republicans who obviously want this vacancy to be filled sooner rather than later because they don't know what's going to happen in the election is, well, wait a minute, if there are only eight justices on the Supreme Court, then what happens if the presidential election is contested (INAUDIBLE) 2000? What do you do you with an evenly divided court?
LEMON: Come on, Dana.
BASH: I'm telling you, this is happening. Ted Cruz has already said that.
LEMON: Gosh.
BASH: I'm not -- I'm not making this up.
LEMON: You know why I'm saying that.
BASH: Ted Cruz has already said that and it is going to happen -- it is going to happen more and more. The point is that there are going to be arguments that they are going to pull out of you know where and they are going to make it over and over again.
But they have a lot of backup from a base who understands that this is, they believe, rightly so since this is -- whatever happens is a lifetime appointment to the highest court in the land, that this is a long-term strategy not just -- which is from their perspective more important than just taking the hit on short-term hypocrisy.
LEMON: This is all the marbles right here. This is it. Thank you, Dana. I appreciate it.
BASH: Thanks, Don.
LEMON: We all saw the courage of Justice Ruth Bader Ginsburg in fighting cancer. She could have chosen to retire, but she knew the stakes and she stayed on the court.
So I want to bring in now CNN medical analyst Dr. Jonathan Reiner. Doctor, good evening to you. I really appreciate you joining us. You have expertise on this. So, thank you so much.
You know, she died of complications from pancreatic cancer. She had a long history of struggling with different cancers starting with colon cancer in 1999. It is tough. It is a tough battle for everyone. Never mind someone of her age.
JONATHAN REINER, CNN MEDICAL ANALYST, DIRECTOR OF CARDIAC CATHETERIZATION PROGRAM AT GEORGE WASHINGTON UNIVERSITY HOSPITAL: Yeah, she had colon cancer in 1999.
[23:34:54]
REINER: Ten years later, 2009, she was diagnosed with pancreatic cancer, which is a supremely lethal disease typically because it's usually diagnosed very late. But amazingly, she lived for 11 years after that. No one lives for 11 years after pancreatic cancer diagnosis. But Justice Ginsburg did.
You know, my father used to say that it's one thing to have a disease and it's another thing to let the disease have you. And her really myriad illnesses over her career on the court never had her.
You know, there were obstacles to get around, move on to greater things, and that's what she did. So she was an inspiration, inspiration to my girls, my two Jewish girls, who look to her as an inspiration, particularly my younger daughter who is a law student now.
So it is a big loss. But she personified resilience in the face of illness. Resilience is a really classic American attribute. So, tonight, we celebrate her life. I think celebration of her life is a better sentiment now than mourning her loss.
LEMON: Yeah. You know, over the summer, she had a recurrence and tried immunotherapy. But that was unsuccessful, doctor.
REINER: Yeah. Immunotherapy is the hope for the future. It's giving more time to people with advanced cancers in situations where just a few years ago there was nothing to do. But, in every illness, there is a point of no return. And Justice Ginsburg got there this year.
We are really good sometimes in medicine with trying to prolong life. We are not so good sometimes with preparing people for death. And, you know, the further I have gotten into my career, the more I have struggled with end of life situations with patients.
There's a time to let go and every person gets there. And the true doctors know how to manage that. And I think it's apparent that the justice received fabulous care and she lived out the full measure of her years.
LEMON: Dr. Reiner, thank you.
REINER: My pleasure.
LEMON: We will be back -- we will be back, excuse me, with more of our breaking news, the death of Justice Ruth Bader Ginsburg.
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[23:40:00]
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LEMON: Justice Ginsburg's passing sets off a historic fight in the Congress over whether to fill the vacancy just 46 days before the election.
Let's discuss the stakes with CNN's senior political commentator Jennifer Granholm and former presidential adviser Mark McKinnon. Good evening to both of you.
JENNIFER GRANHOLM, CNN SENIOR POLITICAL COMMENTATOR: Good evening.
LEMON: Sorry that we have to meet under this circumstance this evening. Mark, Mitch McConnell said tonight that President Trump's nominee to replace Ginsburg is going to receive a vote on the Senate floor. Do you see a scenario where four Republicans refuse to vote?
MARK MCKINNON, CNN POLITICAL COMMENTATOR: Well, rest in peace, Justice Ginsburg. You've earned it. It was a life well lived and showed what a difference one woman can make, and it really made change in our politics and our lives.
Don, here is the situation. This is ironic. It is literally before going on -- coming on your show tonight. I was going to talk about how this race structurally hadn't changed really over a year, and that there was little that could happen that would change the equation. That was what I was thinking about four hours ago, and now the equation has changed.
This is going to be -- you know, by the way, Donald Trump didn't want to be talking about COVID. We are not talking about COVID anymore. We are going to be talking about Supreme Court maybe from now until Election Day.
So the key question that you're asking is, are there three or are there four votes of Republican defections. Now, couple things, I think, are going to happen. One is I don't think they can get it done before the election. Actually, they want to get it done before the election. They will take a couple of those senators on the bubble off the hook, maybe. The heat is going to be pretty intense in any case.
But if it is thrown into the lame duck which I think is more likely scenario, I think we got Lisa Murkowski who already said she won't vote.
Here is the key thing to this. The election in Arizona is a special election. So if McSally loses that race, then the Democratic senator automatically gets sworn in. So, that will be a loss of a republican vote right there. So, that's two for sure.
And then you've got people like Romney, Grassley who has indicated he has got an issue to this problem. So, you can see how it's pretty easy to get to the three or four in the lame duck session.
LEMON: Collins, possibly?
MCKINNON: For sure.
LEMON: Yeah. Jennifer, so, let's -- what are the options for this? Do the Democrats have any options?
GRANHOLM: Yeah, sure they do. You are seeing a lot of talk about that tonight. If the Republicans -- if Mitch McConnell decides to jam something through in a lame duck session when he has lost the Senate and when Joe Biden has won the presidency, there is no doubt in my mind that there will be serious consideration given to expanding the court. And in fact, I think Chuck Schumer should just say right now if --
MCKINNON: Right.
GRANHOLM: -- if he agrees, that if you jam this through, then when we take power next year, there will be additional justices added.
[23:45:07]
GRANHOLM: There is nothing --
MCKINNON: That's a very smart play. Jennifer, that's a really smart play.
GRANHOLM: Yeah. I mean, there's nothing in the Constitution -- people think it's a constitutional number nine. It is not. It has been changed seven times in the history of the United States. So I think that there is a real risk of blowing this whole thing up if McConnell ends up shoving this through.
LEMON: So, having said that, Mark, and you said it was a very smart strategy, do you think there's an appetite out there to expand the number of justices?
MCKINNON: I don't think out there, Don. I mean, I think it's a very process sort of driven notion that most people don't -- you know, they don't understand how this works. But they understand hypocrisy and they understand the importance of Supreme Court. You know, they understand a naked play for power as this will be seen as.
So, you know, I just think it's a very interesting sort of -- if Republicans really care about the court and they do, they have done a phenomenal good job of getting Republican voters to the polls and animate about these humans attacking (ph) the court and doing it for years and years and years, Democrats have a lot to do to catch up.
But if they actually care about the court and the complexion of the court, if the threat is four more justices who could be Democrats, that's very interesting. That becomes a very interesting shift in the narrative.
LEMON: My question is -- I'm not -- I guess both of you would know this. Biden is an institutionalist, right? Traditional. Would he want to do something like this? Would he even go for something like this?
GRANHOLM: Can I just say that, you know, Democrats have put up with a huge amount of structural change that the Republicans have manipulated process in order to get the outcomes that they want, whether it's people at the ballot boxes shutting down polling sites, gerrymandering, etcetera.
The Merrick Garland insults, the hypocrisy associated with that, of holding the seat open for an entire year, and now saying, oh, we have to jam this through, even -- I think Mark is right, it's just too soon before an election. But even if they tried to do that, they have already got a 5-3 conservative majority on the court. So they don't need another conservative to make decisions about the election.
But honestly, because of the process manipulation that Republicans have taken on, I wonder whether Joe Biden would consider looking at something like expanding the court or putting term limits on the Supreme Court justices or looking at the filibuster again because they have -- because they have beaten Democrats at this game using process to achieve outcomes.
LEMON: Thank you both. I appreciate it.
MCKINNON: Thank you, Don.
LEMON: We often turn to CNN presidential historian Douglas Brinkley for context, but tonight, we are seeing history play out in real time right now. Senior political analyst John Avlon is also here with some perspective. Gentlemen, good evening to you.
Douglas, what is -- listen, this is -- she already made history. And now, her death may impact the course of history, correct?
DOUGLAS BRINKLEY, CNN PRESIDENTIAL HISTORIAN: Well, absolutely. And I realized, you know, this is the Jewish holiday right now, Rosh Hashanah, and we need to kind of reflect on her life and legacy, but your segment was just there at the politics, they're just like Niagara Falls on this right now.
I would caution the idea though of Joe Biden going out and saying, if I don't get what I want, I am going to expand the Supreme Court. You know, FDR did that after he won in 1936. He didn't like what the court was doing. He went and tried to sell it to have 15 justices on the Supreme Court.
And it wasn't Republicans alone. Many Democrats said this is -- it is unconstitutional even though it really wasn't, meaning southern Democrats abandoned FDR. Biden would be starting his presidency in an awful position if he tried that.
So I think we just got to see what the reality is. Donald Trump very well in the next days may pick who he thinks is should be the justice and you are going to have Mitch McConnell start trying to sell it on Capitol Hill. Don't put anything behind Mitch McConnell right now. This is what he has been living for, dreaming for. This is his retirement plan, to get a conservative justice in.
And the difference of (INAUDIBLE), John and Don, of our time, you know, when Ginsburg got confirmed in 1993, it was 96-3 in confirmation of her, even though she had a liberal record.
[23:50:00[
BRINKLEY: Look at where we are now in this neo-civil war that is playing out with the Supreme Court.
LEMON: John, I have heard you talk about this on television. You know, John and I were talking about this when we are not on TV. That is because he is -- you know, that is his jam. The last time I saw you, which was last weekend, you were talking about how fragile our democracy and its institutions are. So what is this news mean in terms of that concern that you have?
JOHN AVLON, CNN SENIOR POLITICAL ANALYST: This is a dangerous moment, Don. We are already 46 days out of an election, at a place where both parties and their bases deny legitimacy of the other side.
And because you have the hypocrisy of Mitch McConnell blocking Merrick Garland for 10 months and now is going to try to rally his troops and ramp through Supreme Court justice against the backdrop of the Republican Party losing six of the seven last presidential elections by popular vote, but potentially appointing five, maybe even six, of the nine justices, that's a recipe for incredibly inflaming people's frustration with the system they feel is rigged and isn't representing the popular will.
This is a dangerous moment for the country. There is no reason for McConnell who will try to think about the comment in this context (ph). This is about power. Donald Trump is not going to elect Merrick Garland -- try to nominate Merrick Garland to try to deescalate the situation.
LEMON: Yeah.
AVLON: And so it could set up a whole set of cascading events like the one McKinnon and Brinkley were just talking about.
LEMON: Yeah.
AVLON: (INAUDIBLE).
LEMON: Let me read this for you, OK? This is from -- we're getting from Capitol Hill. In a message to GOP senators tonight, Senate Majority Leader Mitch McConnell urged his colleagues not to lock themselves into a position that they may regret later and counsel them to be cautious about what they are telling the media about their views on how to process -- on how to process the nomination.
According to a person who saw the note, he urges them to keep your powder dry -- that's a quote. McConnell doesn't indicate a timeframe for considering the nomination but makes clear he believes there is enough time to take up the nominee this year. Both of you. John first.
AVLON: Look, what McConnell is saying is, give me room to twist your arm later. This is about power. Remember, judges have always been the rationalization that conservatives have used to try to make Donald Trump more palatable when he violates all the alleged values they have espoused for decades.
So this is the big payoff. This is the opportunity. And 2020 strikes again with the tragic death of Justice Ginsburg. We should remember, obviously, her extraordinary history, her record, her legacy, but also her friendship with Antonin Scalia.
And that is one of the things that are in danger of being lost if this goes nuclear as I think it's likely to do. So he is trying to say, look, some of you have spoken out before, including Lisa Murkowski earlier today, he doesn't want anyone to commit to principle over the (INAUDIBLE).
LEMON: Well, you know, he says that -- Douglas, I want you to weigh in. But I have a list here of Republicans, including John Thune, who said one thing in 2016 in the same -- the exact opposite now, including Lindsey Graham, including Lisa Murkowski and so on.
So, he is saying, keep your powder dry, don't lock yourself in, because basically -- you know, I don't know if he is saying, I am going to do what I want to do, but is it already too late for them to regret those positions and will it even matter if they have taken the position?
BRINKLEY: I don't think it matters anymore in our culture right now, not when things are going this quickly. I think Mitch McConnell is telling Republicans through the media, stay quiet now, let me count the votes, let me see how we are going to fight, let's stay unified as a Republican Party, so people aren't going on Twitter saying different things and creating problems for themselves.
But somebody saying something different a few years ago or even months ago doesn't matter. This is a crisis situation here. This is Donald Trump's great wish in a very strange and grim way because he had to get COVID off of the main story.
And if -- the more we're talking about Trump's woman that he is going to appoint to the Supreme Court, the better Donald Trump thinks he can bring out his base.
And Biden is going to have to find a way to make it work. He may have to -- Joe Biden -- here's who I think I would pick to the Supreme Court or here is my list of three or four people.
LEMON: He is going to have to figure out a way to cut through the noise because Donald Trump certainly has the bully pulpit in this moment. Gentlemen, thank you both. I appreciate it. More on our breaking news right after this, the death of Ruth Bader Ginsburg.
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UNIDENTIFIED MALE: Even though they had different points of view, they were dear friends.
[23:55:00]
UNIDENTIFIED MALE: I'm sure they were picking at each other the whole time, but they kind of enjoyed it.
RUTH BADER GINSBURG, ASSOCIATE JUSTICE OF THE SUPREME COURT OF THE UNITED STATES: Justice Scalia would whisper something to me. All I could do to avoid laughing out loud is sometimes I pinch myself. (LAUGHTER)
GINSBURG: People sometimes ask me, what was your favorite Scalia joke? And I say, I know what it is but I can't tell you.
(LAUGHTER)
UNIDENTIFIED MALE: They enjoyed going to the operas together. They enjoyed discussing particular operas. And of course, they appeared together in an opera.
(END VIDEO CLIP)
LEMON: And that was a scene from the CNN films documentary "RBG." Make sure you tune in tomorrow night, 10:00 Eastern, CNN's films documentary "RBG," and that was a clip with Antonin Scalia, her good friend and their relationship. We'll be right back.
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