Return to Transcripts main page

Cuomo Prime Time

Historic Fight Looms As Senate GOP Vows Vote On Trump's Supreme Court Nominee; Historic Fight Looms Over Trump's Supreme Court Nominee; Remembering The Legacy Of Justice Ruth Bader Ginsburg; Socially Distanced Flights Not Safe? Aired 6-7p ET

Aired September 19, 2020 - 18:00   ET

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

[18:00:10]

CHRIS CUOMO, CNN HOST: Hey everybody, I'm Chris Cuomo and welcome to a special Saturday edition of PRIME TIME.

Of course, this is the Jewish high holiday of Rosh Hashanah to my Jewish brothers and sisters "Shana Tova."

But what was supposed to be a sweet New Year is going to begin in mourning for many. A high court legend is gone.

Justice Ruth Bader Ginsburg died on the cusp of the New Year of her faith, and also before the most divisive election in some time. So what's the situation?

Well, here we are being reminded of the best in a jurist in RBG, and the worst in our politics.

Ginsburg's dying wish was to not be replaced before we know the winner of the presidential election. But of course, this is not going to be about the Justice's wishes. This is about the wishes of somebody else, President Donald John Trump and those of the senator atop the majority, Mitch McConnell of Kentucky.

We will go through the main legal and political realities at play. But on one level, this is very simple. It's about power. But I would have you keep this in mind early on here in our understanding of the process going forward, McConnell and co changing their mind about what they said in 2016, about what is right and wrong to do with a SCOTUS selection near an election.

Now that would be political hypocrisy, they'll make their arguments. We will go through them tonight. However, this could be a very interesting play that could have huge implications, positive and negative.

One, it could lead to a huge turnout in November, okay? We'll talk to you about what the news of RBG passing has done for the Democratic cause with donors.

But it also could affect that turnout on the presidential and senate level. It could wind up deciding the control of the Senate and it also could determine what the Supreme Court looks like. Nine justices is not in the Constitution, there is a storied history, positive and negative with the changing of that number, we'll go through it.

But remember this, a short term win for Republicans right now giving them a six to three majority could turn into a multi-layered long term loss.

Now, Trump just said he is likely to name a nominee next week, even though he was reminded of the hypocrisy of the Republican blockade of Merrick Garland, Obama's nominee in 2016. They blocked that judge appointment for 11 months, simply because they didn't want it to happen when they weren't in power.

Republican Senator Susan Collins has just broken off from the herd saying the nomination should come from the winner of November 3rd, the upcoming election; Trump, of course, disagrees.

(BEGIN VIDEO CLIP)

DONALD TRUMP, PRESIDENT OF THE UNITED STATES: I think we're going to start the process extremely soon and we'll have a nominee very soon.

QUESTION: Senator Collins said she'd like to see the next President be the one to nominate a Supreme Court Justice. What your reaction?

TRUMP: Who said that?

QUESTION: Senator Collins.

TRUMP: Well, I totally disagree with her. We have an obligation. We won and we have an obligation as the winner, it is pick who we want.

I could see most likely it would be a woman. I think the choice will be next week. Yes, there you go.

(END VIDEO CLIP)

CUOMO: Now look, what is his defense on this? Yes, but that's not what McConnell said in 2016. He said, you have to wait until the next election to see what the people want in terms of who gets to choose. And Obama's argument was exactly the same as the President's right now. He is arguing, then what Trump is arguing now, but I'm in power. They put me here. This is part of the job I get to do it. McConnell said no.

But you can't blame Trump for McConnell's hypocrisy, and you can't expect Donald Trump of all people to say, you know what, I think I'm going to take a pass on power and an opportunity to exercise it in the interest of what people may want in their next President, if it's not me.

That's not reasonable, frankly, for Trump. I think it's a strange case for anybody in his position, but we'll let those arguments be made. The more immediate question is, well, when -- what's the specific timing? He says very soon.

Are there any other Republicans in the Senate that will join Collins? Now, I want to remind you of Senator Lindsey Graham and where he's been on this. Listen.

(BEGIN VIDEO CLIP)

SEN. LINDSEY GRAHAM (R-SC): I want you to use my words against me. If there's a Republican President in 2016 and a vacancy occurs in 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'd be absolutely right.

If an opening comes in the last year of President Trump's term, and the primary process has started, we will wait until the next election and I've got a pretty good chance of being the Judiciary --

UNIDENTIFIED MALE: You're on the record.

GRAHAM: Yes.

UNIDENTIFIED MALE: All right.

GRAHAM: Hold the tape.

(END VIDEO CLIP)

[18:05:25]

CUOMO: Here's what I don't understand about this. Why are so many of you surprised that Senator Lindsey Graham of South Carolina would eat his own words? Why do you think he'd be troubled by doing that right now? Because he's a man of paramount integrity?

Well, you know, that's not true with him as a public servant. No need to judge anybody as a person, we could just deal with their actions and words in office.

You know, what he said about Donald Trump when they were running together. It went far beyond the pale of any legitimate political criticism and then he turned just like that when it became advantageous to him, and he will do the same now.

Will his words be used against him? Sure. But there's no prosecution of him. He has an election that people will decide. But at this point, do you really expect anything better?

The Chair of the Senate Judiciary Committee tweeted today, "I fully understand where President Trump is coming from." Of course he does, because he wants to be liked by the man in power, and he wants his help in getting re-elected in a tough race.

Now, he has some excuses on why we shouldn't call him a giant hypocrite, but frankly, I don't think they're worth your time. So where are we?

There's a collision course ahead of this election. Not much of a collision, because I don't know what the Democrats could do. But we should understand the state of play. Because like I said, this is not as simple as it seems. The Republicans have the power, they have the votes, let's go. Short

term gain can be long term pain. Let's discuss.

Manu Raju and Dana Bash, Shana Tova, Dana, thank you very much for joining me, my sister, my brother, Manu, thank you, as always, the best to your families.

These are hard events, the passing of RBG, a famed jurist, and now we have to look immediately to what's happening going forward and we will do that together. Dana, what's the take in the White House?

DANA BASH, CNN CHIEF POLITICAL CORRESPONDENT: Well, you just heard it from the President. You know, the benefit of having Donald Trump as his own spokesperson is that he doesn't leave any question about where he feel -- what he thinks and what he is going to do.

And what he said is that he is going to do it quickly, and it's probably going to be a woman, which makes sense politically on so many levels. I think that -- and Manu will speak to this as well -- but I think the thing to keep in mind, you talk about a collision, you talk about hypocrisy.

Chris, you know this as well as I do, or anybody and that is there is a cost benefit analysis for each of these Republican lawmakers and the -- it is very, very clear and frankly it was, the minute we heard the news that they believe that the benefit of putting a conservative, if they can get it done on the court with Donald Trump in office far outweighs the benefit of -- the costs, frankly, of being a hypocrite and being seen that way.

I'm just going to say bluntly, they don't care. They really don't care because ultimately, what matters, especially to someone like Mitch McConnell, whose whole public life and political life has been focused on the bench that is what matters.

CUOMO: Sure. And also, Dana, let's flesh that out -- the perfect analysis. Manu, if they were to restrain themselves now in the interest of any kind of, you know, logical consistency or principled consistency, they have to think about the conservative base.

I mean, this is a six to three advantage on the court. That could mean everything to the real heart of their own voting base. Forget about energizing the Democratic base. No?

MANU RAJU, CNN SENIOR CONGRESSIONAL CORRESPONDENT: Yes, absolutely. And Dana is totally right. They are -- they don't care about being called hypocrites here, because it is way more important to them to get someone on the bench who could reshape this court for a generation to come, and the Republicans believe there's a significant political benefit to them.

I mean, talking to top Republicans today, they are -- they believe that this could be their ticket to holding the Senate Majority in some of these key races.

Look at what happened in North Carolina just today. Thom Tillis of North Carolina in a difficult race, neck and neck. He quickly came out and said he supports moving forward with a nominee this year. Also Martha McSally, the appointed senator from Arizona, quickly tweeted out her support for confirming someone in the fall -- before the end of the year.

Also, you've seen Kelly Leoffler, a Georgia appointed senator in a difficult race of her own, coming forward and saying that she also wants something -- someone confirmed.

[18:10:18]

RAJU: The ultimate calculation here is to be with your party, particularly in those Republican-leaning states where Republican voters are crucial, which is why Susan Collins, it's not a surprise that she came out and said no to moving ahead, because she is from Maine, a Democratic leaning state. It's much more complicated. Trump is very unpopular in her state. It's more likely she would break ranks.

Also, question two is, where does someone like a Cory Gardner, the Colorado Republican in a state that Biden is favored in, a Democratic leaning state, he has not said where he will come down if you wants this vote to be delayed until next year.

So those are some of the people to watch. But at the moment, Republicans are confident that the votes will ultimately be there, even if they are strongly criticized for taking the opposite position four years ago -- Chris.

CUOMO: Yes, I don't even think we'd get to the discussion anytime soon about whether or not the Vice President would have a role in this vote. That's a thicket of legalities and scholarship. But I don't even think you have pass three, maybe possible in this game yet. So we'll see.

Last word to you, Dana. What are the Democrats saying? What can they shake at this?

BASH: They are scrambling. I have really never seen anything like it -- scrambling to find -- figure out if there is a strategy to beat this.

In the short term, in talking to Democratic sources, and I'm sure Manu is hearing the same thing, they believe that they can slow roll this, but probably not stop it.

It largely depends on what the Republicans that we've -- as you've said, we've heard from two who said, let's not do this before the election, but if there are two more, they could at least slow it until after the election, if and it's a big if and I know Manu has been saying this, you know, ad nauseum, if Mitch McConnell decides I'm just going to shove this through before the election.

It is very, very hard, almost impossible. But it's Mitch McConnell, so nothing is impossible when it comes to the bench. I talked to a Democrat who knows Senate rules and procedure probably

better than anybody on the planet last night, who said at this point, it looks like slowing things down is the best bet. But stopping it will be very, very hard.

RAJU: And potential retaliation next, too, Chris.

CUOMO: Right, and the question is, how long can you -- how long can you slow it down when McConnell sets the calendar?

But look, we're going to learn a lot more quickly, because everybody is putting their thinking caps on about this, and it does have to be balanced with decency even in these days. You have the decorum of letting -- I hear you, but the Justice has to be buried.

BASH: I like what you're thinking, but I am not so sure about that.

CUOMO: But the Justice has to be buried.

BASH: I think decency is gone.

CUOMO: But certain things I think will loom large. I mean, you know, for the President here, you know, she has just passed. She should be buried. You should show that honor and commitment. If he doesn't, all right, one more surprise of what he can do that really is beneath the office.

But I think that this could all happen very quickly. The question is, what does it mean for the election? And after? We'll be talking about that plenty.

Dana, again, the best for the New Year to you and the family.

BASH: Thanks, Chris.

CUOMO: Manu, all the best, brother and thank you.

All right. Have a good night. All right, we're going to have more to come on where this is headed. We've got to talk about the politics. I can't flesh out the legalities in any way that is that elucidating for you. There's not that much law at play here.

How many Supreme Court Justices are we supposed to have? It's not in the Constitution. Well, who gets to decide whether it happens before an election or after? The people in charge of the Senate and the President in power at that time.

Well, then why didn't Obama get Garland? Because the person in charge of the Senate didn't want it to happen, and he got his numbers behind him and that was it. It doesn't matter what the rationales were. It doesn't matter if they're undoing them now. It wasn't law. It was politics.

So what does this mean plus and minus for the Republicans in this election? Another good mind coming up.

(COMMERCIAL BREAK)

[18:18:15]

CUOMO: Okay, I don't like making an argument to you about politics being ugly and the indecency, because I want people to have an expectation of integrity. You know, many of the people in public service are in there for the right reasons and great sacrifice to their own personal lives.

And yes, there's some dirty ones who are in there for personal gain, who don't have principles. They just have positions of convenience and the kind of, you know, accumulation of power. You're right. You're right. You're right to feel that this system picks its own winners and losers sometimes.

And yes, we're living that right now. It's not just Mitch McConnell. It's not just Senator Lindsey Graham. They're just big names that really stand out as hypocrites in this. But the hypocrisy is meaningless to them if it is in the way of them getting power. Okay?

In 2016, they made a simple argument to you, we're so close to an election. This President is a two-term or he is a lame duck. He's out. Shouldn't we know what the people want and their next President and that administration so close to when they get to exercise their mandate? Now that was based on complete BS, in terms of legal and political precedent. That had never been the custom ever. Okay?

So why was it then? Well, they had the numbers and they wanted to rationalize it and dress it up a little bit, so they did it. Now they're saying the opposite. Absolutely.

And this is no surprise, McConnell has been very clear much to the ha- ha-ha of the smoky rooms that he speaks to that they're not really smoking rooms, right? We can't smoke anywhere anymore, but metaphorically, they are. It is an insider's game and they play to them and there's no way Mitch McConnell is not going to try to secure this seat and with his legacy as somebody who delivered three conservative justices, and there's no way that Donald Trump doesn't want that as well.

[18:20:10]

CUOMO: Now, is it as simple as that? Does it come with risk? Let's talk politics with Scott Jennings. It's good to have you on PRIME TIME, as always, the best of your family, especially on a Saturday night.

I will have a scroll going Scott of the 40 plus -- 41 Republican senators who in 2016, were saying you can't pick somebody this close to an election. It's not fair to the people.

The hypocrisy is meaningless here, because the opportunity is too great. Is that a simple assessment?

SCOTT JENNINGS, CNN POLITICAL COMMENTATOR: Well, I think you're oversimplifying what they said in 2016, there was a difference. In that case, the White House was controlled by one party. The Senate was controlled by the other, and you have to go all the way back to the 1880s to find a situation where someone was confirmed.

In this case, the party in the White House is also the party in control of the Senate. So they view it as a different situation and therefore, a different precedent that would be in use here.

CUOMO: I will get us to the political obviousness of this by knocking down the idea that you have to go anywhere for any kind of suggestion that what would be happening here is unusual, it would be completely usual.

Presidents who are in power, first term or second term, have almost without exception, always appointed whatever vacancy came up on their watch. No one has ever forestalled that duty, ever, for a Supreme Court Justice until McConnell forced it on Obama.

When you say you have to go back for the 1880s to see this, you are mixing apples with oranges, as you well know. You're looking for when was the last time right before an election, we had a vacancy come up and there was a different person in power from one party as a President and another at the head of the Senate? That's irrelevant. It's about how you exercise that power.

McConnell said it's not about mixed parties. McConnell said it's too close to when the people get to decide. He made it up then and he will just undo it now. Why dignify it? Just admit it and say, yes, now we get to win. Our rules.

JENNINGS: Well, two things. Number one, we just disagree on this point, Chris, that you did have different parties in power so that voters in 2016, leading up to that vacancy had delivered mixed messages. You had Democrats in charge of one institution and Republicans in charge of the other.

In this case, Republicans, the voters have awarded them control of both and reaffirmed that control of the Senate in 2018. And look, the Constitution does not give the President the power to nominate this and the Senate to just simply rubber stamp it.

You have two co-equal separate branches of government here that both have a role to play, and you're right about one thing, it is about power, and the Republicans do have power in the Senate and they have a constitutional duty to exercise that power, however they see fit and that's what they're going to do here.

CUOMO: Yes, you've got two problems. One is your argument is at odds with what McConnell said in 2016. He said, I'm not going to exercise my power. So putatively, his argument is people put me in power to do nothing, which is obviously not a great argument to the people who put you in power.

And he said, I have the power to do nothing, so I'm going to do nothing, as opposed to exercising the power he was put there to exercise. And the President, in point of fact, was also elected. And when Obama was elected, he was elected to do the job, just as Trump is right now, as Trump said today, frankly.

And you have someone else who disagrees with you, Senator Lindsey Graham, who said, if you'd switch the parties, I'd be in the same position. It's not right to do this close to an election, and if that happens under Trump's watch, you'll be able to hold my words against me.

Now, he is coming up with some BS excuse why that's not true. But why do you guys get tangled up in principle? You're not about principle. You're about power. This is politics. And I'm not saying that the Democrats wouldn't do the same thing in your situation. But why try to make it something prettier than that? It isn't, and you know it.

JENNINGS: Yes, you just made the point I was going to make and that's I don't think Republicans are going to accept any crocodile tears from the Democrats about not filling the seat out of some sense of fairness.

CUOMO: No.

JENNINGS: I think every Republican knows, if Democrats were in charge right now, and they had control of the Senate, they would fill it. And so I don't think we should be Pollyanna.

CUOMO: Yes, so don't dress it up.

JENNINGS: How about if the roles were reversed, I think the Democrats would be doing it.

CUOMO: So don't dress it up. Don't say it's about different parties or this or that. Don't waste our time with that. You know, that's all BS. You would do it because you can do it.

JENNINGS: Well, it's not a waste of time. That is true.

CUOMO: My question to you is this --

JENNINGS: You can call it a waste of time --

CUOMO: Well, it's -- but it's a distinction without a difference. He didn't do it because there were different parties at play. He did it because he was in control. And he was able to stop a Democrat from doing something he didn't want to do.

Just don't dress yourself up. That's all I'm saying. You're down in the mud with everybody else in this business. Let's all wallow in it together.

What is the cost to this? Are you concerned at all about what happens in the election riling up the Democrats and the expansion of the Supreme Court if they could control of the Senate? Is that reasonable as a concern?

JENNINGS: Yes, I think you raise some interesting points. I mean, we could look at the recent history. In 2016, there was a vacancy, of course, and it inured to Trump's benefit. It brought out to the polls recalcitrant Republicans and conservatives who were rightfully nervous about Donald Trump.

CUOMO: Yes.

JENNINGS: In 2018, there was a Supreme Court battle just before the election, and by my count, four Democrats lost their seats after the Kavanaugh nomination was such a nasty thing in Washington. So the recent history of this is that it has helped Republicans.

Now, in this particular election, Donald Trump's campaign last week, just moved all of its advertising to wanting to talk about the economy. They've decided, now is the time to try to make their argument against Biden on the economy.

This Supreme Court vacancy throws a bit of a monkey wrench into that, given that now, we will be talking about the courts. And we'll be -- let's face it -- talking about abortion.

And so it does change the conversation to other issues that the Trump campaign you know, last week it was the economy this week, and it'll be something else. That may throw a monkey wrench into their plans. I think it's a good point you make.

Oh, let me just add, Chris, on the court packing, I do expect for Republicans ...

CUOMO: Now -- go ahead, Scott.

JENNINGS: ... begin to make this point. Yes, I think on the court packing, I think Democrats are obviously moving in that direction and Republicans, I think today I'm hearing a lot more people say we're not worried about one vacancy, we're worried about five, because if we have this one, and the Democrats add four, then it's about the next five vacancies.

And so I actually think this is Democrats maybe making a mistake by freaking Republicans out about not just one seat, but potentially five of them.

CUOMO: They don't have any choice. They don't have any choice. I mean, they have no leverage. They can't stop this. It doesn't matter that McConnell monkeyed with the rules, it was a power play, and he was successful at it, you can describe it any way you want. That's the only rationale that really exists. He said that himself many times.

But you're right, you know that is a good thing to have as an iron in the fire. You know, if we lose, and we do this, they may expand the court. I wouldn't call it packing the court because you actually have a fairly healthy precedent, even including FDR.

Now he wanted to do it for political reasons, because he didn't like the outcome in one case, which he felt nullified the effect of his emergency actions and his hundred-day plan.

But you used to expand the court on almost a regular basis with the number of Circuit Courts. We haven't done that in some time because they were worried about the politicizing of it, we'll see where it leads.

You also have a very different calendar, this time in the Senate races than you did in 2018. So we'll see how that figures and it's more advantageous for Democrats this time, compared to last.

Scott Jennings, always appreciate the back and forth. Best to you and your family. We'll be right back.

JENNINGS: Thank you, Chris. Take care.

(COMMERCIAL BREAK)

[18:31:58]

CUOMO: If this president gets to place a third younger justice on the court, it would cement a generation of jurisprudence in all likelihood with obvious legal, social, economic and historic ramifications. The question is so what does this mean for Democrats, if anything?

Two great minds that know the court very well, Joan Biskupic and John Dean. Good to see you both. Thank you for joining me on a Saturday.

JOHN DEAN, CNN CONTRIBUTOR: Thank you.

JOAN BISKUPIC, CNN SUPREME COURT ANALYST: Thank you, Chris.

DEAN: Thank you.

CUOMO: Joan, first, give us a little historical context. This newfound sense of parity that the Republicans are parroting is very unsatisfying to me. The argument in 2016 was very simple, we don't have to do this, we're right near an election and Obama is definitely out, so we got a chance to take power. And we're not giving you your choice, because we don't have to. That was the argument.

Now, they're saying, well, it was a mix of one party in the presidency and one party in the Senate and that's why it wasn't fair. What is their historical perspective on that?

BISKUPIC: Chris, I actually remember very well, February of 2016, talking to you about this, because Mitch McConnell, within about an hour of the public announcement of Justice Scalia's death said we're not going to do it, we're going to block whoever President Obama puts up. And so many people said, that's so audacious, he'll never be able to do it. He won't be able to pull it off.

We'll look what happened, he pulled it off. And I think that audacious move triggered certainly Donald Trump's momentum with the hard right and the judiciary. He even said he thought the Scalia vacancy helped him win in November 2016. And now you have another bold move by Mitch McConnell that people are saying, how can he do this, how can he possibly do this so close to the election. Well, he's doing it. He's doing it.

And let me tell you how, I do think - see, these two episodes is sort of bracketing just a serious period of trouble for the Supreme Court as it's getting entangled with politics. But on the law, when you talk about a young appointee coming in, whoever comes in is going to affect the life of your children and your grandchildren. In 1991, which is a point I'll go back to for such a dramatic change of a justice. That is when Clarence Thomas succeeded Thurgood Marshall.

Clarence Thomas was only 43 at that time. Here we are nearly 30 years later and Clarence Thomas is still on the court. The people who Donald Trump are looking at seriously are in their 40s. They're in their 40s. They will be there making the law that we'll all live under for so many more years. So I cannot overstate the consequences of this and what a political drama it is matching what Mitch McConnell did back in 2016.

[18:35:03]

CUOMO: Right. And that's the only precedent, Counsel Dean. There is no precedent about different parties and you have to go back to the 1880s. It's not true. We've had Republicans with a different Senate and they put their nominees forward and they fight about it, but they do it. This is about politics.

Now, can politics come back to bite them if the Democrats turn this to advantage and get power in the Senate? What do you think of the idea of expanding the Supreme Court, John Dean?

DEAN: I find it a very attractive idea and I find it if you kept packaging as court packing, obviously, it's got immediate visceral reactions that, oh, no, we don't do that. But what we're seeing what Mitch McConnell has been doing throughout the Trump presidency is packing the courts from the bottom to the top. And now the courts are really out of balance.

I think that Biden and his team could make a very strong argument and put a lot of leverage on Mitch say, listen, you're not playing by any rules. We want to set some rules. We want the court to grow. We want it to be able to do the business, it should do it. We know the lower courts have been needing more judges for decades and so there's a backlog there of maybe a hundred to 200 judges are needed.

So we also think the Supreme Court should be expanded, maybe it's two, maybe it's three seats. We'll see. But they should have hearings on this and if they have the power, I think they should do it.

CUOMO: I mean, because we all learn about FDR, there is something that is unpalatable about politicizing the expansion of the court, but people will start doing what I'm doing right now. We're not all Biskupic who writes the books, we're reading them.

We've got to read the history in how they've expanded the court with different circuit, court expansions to echo it and why they don't do it and you got to look at it as an exercise of power. They're in power. They're putting in all of these conservative judges on the lower courts because they can.

And if the Democrats get in power, they could do the same things with their use/abuse of power, depending on your partisan perspective. Joan Biskupic, John Dean, we're going to be talking about this a lot. Thank you for joining me on a Saturday night. God bless you both.

John has a new book, by the way, called Authoritarian Nightmare. Good read on sale now.

So politics all over us, but like I said earlier, you do have to defer to decency here on one level, right? Yes, there's a vacancy. Remember why? We've lost somebody of tremendous importance in our society and always a special place in my family.

We have one of Justice Ginsburg's long-time friends here. The Congresswoman who introduced her at her Senate confirmation hearing all those years ago. And I'll tell you something I've never discussed before about why it matters to the Cuomos, Eleanor Holmes Norton on what RBG meant to her and what she should mean to you and your kids, especially your daughters next.

(COMMERCIAL BREAK)

[18:42:34]

CUOMO: Who better to remember the incredible force that RBG was than someone who knew her for 50 years and fought alongside her in her quest for legal justice. Congresswoman Eleanor Holmes Norton introduced Ginsburg at her Senate hearing in 1993 when she was nominated by then President Clinton.

Congresswoman, welcome to PRIME TIME. Everybody knows you, obviously, for your political prowess, but not to be missed. Dana Bash was just reminding me an amazing attorney in your own right, fighting for rights, the newsweek case Dana had pointed out to me, obviously, an extension of the 1964 Civil Rights Act and your action there as a litigant. So you are well known and drew you together with the work of now a famed jurist gone by, what should people remember about the notorious but really famous RBG?

ELEANOR HOLMES NORTON (D), DELEGATE TO HOUSE OF REPRESENTATIVES, DISTRICT OF COLUMBIA: Yes. And the notorious RBG should be remembered as much for her work as a lawyer when I first knew her as a judge. And as a judge, remember, she has been in a 5-4 minority. As a lawyer, she was a path breaker. She argued six women's rights cases before the Supreme Court when I was at the ACLU as Assistant Legal Director and she had something called the Women's Rights Project.

Now, she did not work for the ACLU, she just did this as her work. And she took these cases, 1-5 out of the six cases and is more responsible for establishing the equality of women under the law than any single lawyer or a judge. Indeed, I bet most people don't even remember that not until Justice Ginsburg argued as a lawyer that the 14th Amendment applied to women, did it apply to women. It applied to blacks, but it did not apply to women until she made it so in her argument before the Supreme Court. That's just how pathbreaking she was.

[18:45:00]

CUOMO: Rosh Hashanah, obviously, is upon us and the timing of her passing at the beginning of the new year in the Jewish calendar right before the election, very momentous. One of her final wishes according to family was that the vacancy be held until after the election. What do you make of that notion? It's not a legal one, really, it'd be a political one. What do you make of where we are now and what seems to be a rush to fill it?

NORTON: I was astonished that she was so prescient that she had to say out loud what I think most of us certainly who are Democrats are thinking. She had seen what happened before in the Garland matter, when, indeed, the Senate simply did not take up the issue. And she apparently saw it coming even this time that the Senate might well rush ahead as it did not with Merrick Garland.

And so apparently as a dying wish, she said to her granddaughter that this nomination should await whoever becomes President of the United States. And many of us are taking that very seriously. But no, we're going to have to fight very hard for it.

CUOMO: Yes. You'll remember this, it'll be new to everybody else. My father is gone, as you know, he was in the conversation with President Clinton back then and he always referred to Justice Ginsburg as the upgrade.

He would say, when I was studying about her role as a litigator and on the court, and he watched the court very closely, as you might imagine, he always referred to her as the upgrade. And he said they just don't understand how quick she is. It takes them a long time to figure out what she has already figured out.

And now we're all left here with her legacy and hopefully, as you suggest, a better understanding of just how much she meant and will mean for generations to come. As have you, Congresswoman Eleanor Holmes Norton, thank you for your work and thank you for being with me.

NORTON: Thank you very much.

CUOMO: All right. God bless and be well. I'm sorry for the loss of your friend. We'll be right back.

NORTON: Thank you.

(COMMERCIAL BREAK)

[18:52:16]

CUOMO: Dr. William Schaffner joins us now for a COVID update. Welcome back to PRIME TIME, Doc, especially on a Saturday night. Now, the idea of this new report that has all these eyebrows up, plane socially distance aren't as safe as we thought, nothing on a plane is safe. You're in a tube with recycled air, that's why everybody thinks they get sick when they're on planes.

Of course, socially distanced flights aren't going to be 100 percent safe procedure. You're not surprised by this, are you?

DR. WILLIAM SCHAFFNER, PROFESSOR, INFECTIOUS DISEASE DIVISION, VANDERBILT UNIVERSITY MEDICAL CENTER: Well, I'm not really. And before we get into that, I shared the sadness of the country on the passing of Justice Ginsburg and condolences to her family. But back to COVID here.

CUOMO: Thanks, Doc.

SCHAFFNER: Of course, travel continues to produce risk particularly for people who are of advanced age and who have underlying chronic conditions. That's clear, Chris. If you're going to travel, please wear the mask at all times and do some eating and drinking before you get on the plane, so you don't have to remove the mask while you're in the flight.

Good hand hygiene, some people will actually take scented wipes along to wipe off those surfaces. If you're being very, very careful. And as much as you can, you're going to be out in some crowds maintain as much distance as possible.

CUOMO: So here's my new thing, we all want kids back in school. My argument on the show I don't know if you've been able to watch lately is the reason the kids aren't back in school is because of a failure of really strategy.

We're using the wrong kind of tests. We're using these PCR tests with these high cycle counts that catch everything that's new that's related to the virus well beyond just contagious viral material, live virus.

And if we did it differently, Doctor, you would still catch people who are contagious, but not people like me, who may have vestiges of dead virus or other DNA, detritus from virus. Why don't we do the right kinds of testing for kids in school and do more of it?

SCHAFFNER: That is an absolutely wonderful argument. It is so sound in theory. I love it. I'm not sure that we have the tests that are reliable enough to do that, to separate those who are really shedding a lot of virus and can infect others from people who have just a little and really are very little hazard to others. I don't know if there's another test for another germ that we have that can do that.

[18:55:00]

So if there are some tests that can be demonstrably function this way that would be wonderful. Then we could test not only schools and colleges and universities, but businesses. We could open up larger venues again, and that would be wonderful. But as we say, in God we trust, all of those must provide data.

CUOMO: But the PCR test right now, they're pushing them in about 40 cycles not to overwhelm the audience with science they don't need. But the higher the number of cycles, the more deep into your DNA, it looks for things.

So if you lower it from 40 to 30 or 35, the science says, according to the studies that are out there and the experts that are putting it forth, you still catch the live virus, you just don't catch the other stuff that gives you a positive result for COVID, but the person is not contagious, why don't we just lower the cycles and use the existing tests?

SCHAFFNER: Yes. Well, I'm not a laboratorian. I love the argument. I haven't seen those data if it could work. Let's try it in some places to see and an actually apply that so it actually works. You would need some field studies to get people comfortable with the notion that that could actually work in the real world, rather than just in the laboratory. I would love to see that tried.

We need as much help as we can get to combat this virus, because it's going to be with us for quite a long while yet.

CUOMO: And, Doctor, thank you, as always, as we go to break. Dr. Schaffner and I, he has been a tutor for me on this from the beginning. It's never just been test, test, test any way you can. It's always been test smart. It's always been testing the right people in the right kinds of ways and it's not as simple as one size fits all.

Dr. Schaffner has been saying that for a long time. I have as well because I hear it from experts like him. But the science is out there and we're going to keep talking about this especially every night at 9 pm Eastern on CNN CUOMO PRIME TIME. We'll be right back.