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STATE OF THE UNION

Remembering Ruth Bader Ginsburg; Interview With Former President Bill Clinton; Interview With Sen. Amy Klobuchar (D-MN); Interview With Vice Presidential Chief of Staff Marc Short; Interview With U.S. Assistant Secretary for Health and Human Services Admiral Brett Giroir. Aired 9-10a ET

Aired September 20, 2020 - 09:00   ET

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


[09:00:14]

(BEGIN VIDEOTAPE)

JAKE TAPPER, CNN HOST (voice-over): Supreme legacy. Justice Ruth Bader Ginsburg has died at age 87, a pioneer on the Supreme Court, a trailblazer for women, and a champion for those fighting for equality.

RUTH BADER GINSBURG, ASSOCIATE JUSTICE, U.S. SUPREME COURT: I love the work I do. I think I have the best job in the world.

We will remember Justice Ginsburg's legacy with the man who nominated her, President Bill Clinton, next.

And without delay. Just weeks before the presidential election, top Republican senators vow to give President Trump's Supreme Court pick a vote.

DONALD TRUMP, PRESIDENT OF THE UNITED STATES: I will be putting forth a nominee next week. It will be a woman.

TAPPER: How might that affect the presidential race and the future of the Supreme Court?

I'll speak with Democratic Senator Amy Klobuchar and top White House official Marc Short next.

Plus: staggering toll. The U.S. nears 200,000 coronavirus deaths. How did this happen? And how much worse will it get?

ADM. BRETT GIROIR, U.S. ASSISTANT SECRETARY FOR HEALTH AND HUMAN SERVICES: Wearing a mask when you can't physically distance is absolutely critical. White House Coronavirus Task Force member Admiral Brett Giroir joins me to discuss ahead.

(END VIDEOTAPE)

TAPPER: Hello. I'm Jake Tapper in Washington, where the state of our union is remembering an American icon.

Supreme Court Justice Ruth Bader Ginsburg is dead at the age of 87. She was only the second woman appointed to the U.S. Supreme Court. She spent her career fighting against discrimination on the basis of sex, becoming a hugely popular feminist figure later in life, affectionately called the Notorious RBG.

Now, in death, her vacancy is already reshaping the presidential race and setting up an epic pre-election clash between parties on Capitol Hill, as many Senate Republicans make it clear that their 2016 call to let the voters, not then President Obama, decide who gets to fill an election year Supreme Court vacancy was not actually a principle, but, rather, a sound bite that is no longer operative now that a Republican is in the White House.

According to NPR, Ginsburg told her granddaughter just a few days before her death -- quote -- "My most fervent wish -- my most fervent wish is that I will not be replaced until a new president is installed" -- unquote.

But President Trump is wasting no time announcing at a rally Saturday night that he intends to nominate a woman as his pick in the coming week.

And joining me now, former President Bill Clinton, who appointed Ginsburg to the court in 1993.

Mr. President, thank you so much for taking the time today to remember your friend.

BILL CLINTON, FORMER PRESIDENT OF THE UNITED STATES: Thank you.

I want to play a clip from when you nominated then Judge Ginsburg to the Supreme Court in 1993. Take a listen.

(BEGIN VIDEO CLIP, 1993)

CLINTON: I am proud to nominate for associate justice to the Supreme Court Judge Ruth Bader Ginsburg.

Throughout her life, she has repeatedly stood for the individual, the person less well-off, the outsider in society, and has given those people greater hope by telling them that they have a place in our legal system.

(END VIDEO CLIP)

TAPPER: You have said that her 27 years on the court exceeded even your highest expectations when you appointed her.

How so?

CLINTON: Well, first of all, she was a force for equality for men, as well as women, for example.

She was consistent. And she did it in a way that was level-headed and on the level and respectful of different opinions and the other judges on the court. So, she was highly respected because she bent over backwards to work with the other judges when she could. And she stood up and was counted when she couldn't. I mean, she just -- and, of course, along the way, she became kind of

a cultural icon, which surprised even me, I think.

But she made people believe that she was doing her job and that, whether they agreed or disagreed with her opinion, she was completely straight about it, completely on the level, at a time when there's a lot of cynicism about things that aren't on the level.

So, I think it meant something to her. I think -- you know, she came to Little Rock a couple years ago to give a speech at my library. And we couldn't have it at the library. We had to move it to the place where we play basketball and hockey.

And there were 15,000 people who got in, and almost that many who tried to get in and couldn't.

TAPPER: You considered several other individuals for the Supreme Court before you picked her.

In his memoir, Republican Senate Orrin Hatch claims credit for suggesting that you consider Ginsburg.

[09:05:05]

How did you eventually choose her?

CLINTON: Well, first of all, I had -- we looked at 40 candidates.

And then we got down to five, one of whom has been public. Governor Cuomo didn't want to be on the Supreme Court and didn't want to leave New York. But I thought non-judges should be considered.

And I also considered Secretary Babbitt, the secretary of the interior, who was -- would have been a great judge. But we needed him where he was, on the front lines of the conservation and environmental movement.

I considered one judge I thought was the most brilliant judge on the federal bench who had health issues I thought -- I was concerned about. So -- and Justice Breyer, whom I later was able to appoint to the Supreme Court.

And then -- but I really was interested in Ruth Ginsburg. And Hillary had talked to me a lot about her work, because she had been involved in the Women Lawyers Association of the Bar Association when we were in Arkansas.

So, anyway, we sneaked her in there on a Sunday night, and nobody knew it. And I had the conversation of a lifetime with her. And I knew, after we talked for 10 minutes, that I should appoint her.

TAPPER: Do you remember anything about that conversation that you can share with us, just why she dazzled you so much?

CLINTON: Yes, because, first of all, she was disarmingly straightforward. She -- we hadn't been talking but a couple of minutes before I felt

like we were just two friends having an honest conversation about American history, the Constitution, and the law, and how it affected real people.

I was very, very determined that whoever I put on the court would be on the level and would see the people first and understand the human impact. And she really did. She had this uncanny ability to be very much in the weeds, if you will, of the intellectual legal arguments, and yet never lose sight of the human impact of her decisions.

TAPPER: She was confirmed 96-3, 96-3, almost an unthinkable vote today.

She was also very close friends with Justice Antonin Scalia, virtually her polar opposite on the bench.

I want to show our viewers. Here they are together on vacation in India riding an elephant.

The other day, Scalia's son relayed a story on Twitter about a friend who saw his father giving roses to Justice Ginsburg for her birthday. And this friend said: "Name one 5-4 case where you got Justice Ginsburg, you got her vote for all these roses that you're giving her."

And Scalia replied -- quote -- "Some things are more important than votes."

You yourself have become famously close with George H.W. Bush. Do you think this era of -- is gone?

CLINTON: Boy, I hope not. I hope not.

You know, President George W. Bush and I still run a leadership program together, and we talk all the time. And I really value our friendship. I value the conversations we have.

And I think life can become kind of boring if everybody you're around thinks just like you do.

And I really -- I thought it was funny. I think she and Scalia bonded over a lot of things, including opera.

(LAUGHTER)

CLINTON: So, it's nice to know that people are people and that they have other concerns.

TAPPER: President Trump has vowed to nominate a woman this week to fill that slot on the Supreme Court. Senate Majority Leader Mitch McConnell has vowed to hold a vote.

What's your reaction?

CLINTON: Well, of course, it's superficially hypocritical, isn't it? I mean, Mitch McConnell wouldn't give President Obama's nominee

Merrick Garland a hearing 10 months before the presidential election. And that meant that we went a long time with eight judges on the court.

[09:10:00]

This is what they do. And I think that, both for the -- Senator McConnell and President Trump, their first value is power. And they're trying to jam the court with as many ideological judges as they can.

But, to be fair, there is a case to be made for the argument McConnell made that, in the middle of a presidential season, you should give the voters a say. That's what he said when it was 10 months away.

But when the shoe's on the other foot, and he wants the judge, we're just -- we're fewer than 50 days away, and that argument doesn't cut any mustard.

So, it's going to further -- excuse me -- it's going to further spread cynicism in our system.

And he said he wouldn't do it. It's very interesting. Abraham Lincoln -- and the Republicans occasionally still claim this -- had a similar situation. In early October, Justice Roger Taney died in 1864.

And President Lincoln wanted to appoint Salmon Chase, who had been secretary of the Treasury, to the Supreme Court. But he did not do it until after the election. He understood it was very close in the election and he shouldn't do it.

And Senator McConnell said before he thought the people were entitled to a say.

I don't know what's happened to make him stop trusting the American people, but, apparently, when it's to his advantage, the people are not entitled to a say.

So, it is what it is. It's politics. But I think we should remember that.

McConnell said what he said. Lindsey Graham said it shouldn't happen. Let's see how he votes. Senator Grassley said it shouldn't happen. Let's see how he votes.

This is a -- it's a power play, and they think they can do it.

The other interesting thing, they can do it because Senator McConnell made an agreement between the Republicans and the Democratic senators to end the filibuster for court of appeal judges, but keep it for Supreme Court judges.

TAPPER: Yes.

CLINTON: And the only reason they had to end it is, McConnell had organized -- he voted against everybody on the court of appeal. He didn't want the Democrats to have any judges.

There was no review. It was just, whoever you put up, I'm going to try to beat.

But the minute President Trump was elected, he got rid of that agreement. That became history. And, all of a sudden, we couldn't have a debate on a Supreme Court judge.

And I think that was too bad, because you want somebody who can do what Ruth Bader Ginsburg did, get 96 percent of the vote.

TAPPER: Yes.

I just want to ask you, sir, before we go. Democrats are saying that, if there is this vote, if Republicans do push the Trump nominee through, that all options are on the table. And they're even talking about, potentially, if, obviously, Republicans lose the Senate and the White House, and do not win back the House, if Democrats have control of everything, they're talking about adding justices to the Supreme Court.

What do you think of that idea?

CLINTON: Well, the Constitution doesn't prescribe a fixed number of judges to the Supreme Court. The last time it was tried, it didn't work out so well, when Roosevelt was president.

But I think, my view is, first, I'm not in politics anymore. I'm going to let somebody else debate that.

But, secondly, let's try to do this right now. We are really close to the election. And let's remember the example Abraham Lincoln set. And let's remember the commitments and the comments Mitch McConnell made.

I think it would be good for Senator McConnell to make him feel better when he gets up in the morning if he -- if he proved that he wasn't being a hypocrite at the time and he just stuck with his position.

And I think all the other Republicans could -- should be asked to do the same.

But you can't keep a democracy if there's one set of rules for one group and another set for everybody else.

TAPPER: All right, former President...

CLINTON: We do actually need to live under the same set of rules.

TAPPER: Go ahead.

Former President Bill Clinton, I know you have other...

CLINTON: And that's what...

TAPPER: Go ahead, sir.

CLINTON: No.

And I said, we're honoring Justice Ginsburg today. I think that's the main thing she would say. Let's all live under the same set of rules and do what's fair for everybody.

[09:15:09]

TAPPER: Former President Bill Clinton, thank you so much.

Stay safe and stay healthy. Best to your family.

Take a listen to Justice Ginsburg explaining when she would be satisfied with the number of women justices on the high court.

(BEGIN VIDEO CLIP)

GINSBURG: People ask me sometimes, when do you think it will be enough? When will there be enough women on the court?

And my answer is when there are nine.

(END VIDEO CLIP)

TAPPER: Here in Washington, senators are mourning the loss of Ruth Bader Ginsburg, even as they prepare for what will almost assuredly be a nasty political battle over her seat on the court.

Joining me now to discuss, Minnesota Senator Amy Klobuchar, Democrat and member of the Senate Judiciary Committee.

Senator Klobuchar, thank you so much for joining us on this morning.

SEN. AMY KLOBUCHAR (D-MN): Thanks, Jake.

TAPPER: You said that Justice Ginsburg -- quote -- "showed future women lawyers like me that anything and everything was possible" -- unquote.

What impact did Ginsburg have on your career?

KLOBUCHAR: She was an icon, a hero.

And you always stand on the shoulders -- no matter how small hers were, her footprint was so huge, because you saw a woman who literally was told, oh, you shouldn't go to law school. And then she goes and she graduates number one in her class.

Oh, when these equal rights cases that she created these -- the principles and the ideas and the theories of the case, they say, well, maybe a man should argue that before the Supreme Court. She says: No, I'm going to do it.

She goes on and creates landmark law when it comes to making sure women can go to work and be protected. Then she gets on the Supreme Court herself, the second woman in the country that is appointed to the Supreme Court. And, of course, from there, it's history. She becomes an international icon.

And I think, for a lot of women, that's amazing too that, in your 80s, you can have the name Notorious RBG...

(LAUGHTER)

KLOBUCHAR: ... and your own hashtag, to the point where my daughter, once we were at an event, and there was a picture of the three of us taken together.

My daughter was in college, and she comes up to me, she goes: "Mom, it's so cool to meet the Notorious RBG."

(LAUGHTER)

KLOBUCHAR: "And I hope you don't mind. I'm putting this on my Facebook page, but I'm going to cut you out."

(LAUGHTER)

KLOBUCHAR: And I think that is literally what she became.

TAPPER: Yes.

KLOBUCHAR: And so, as I heard President Clinton talk about how she had exceeded all expectations, I think we're at a moment in time where our democracy and the people voting and where we are right now, we have to exceed expectations.

TAPPER: So...

KLOBUCHAR: And that's why this is so emotional for so many people.

TAPPER: Yes.

And I hate to turn to the ugly business of politics, but it's right in front of us. And you sit on the Senate Judiciary...

KLOBUCHAR: It's not always ugly.

(LAUGHTER)

KLOBUCHAR: Well, yes.

TAPPER: Well, I'm anticipating.

And you sit on the Judiciary Committee, which will be tasked with considering President Trump's nominee. Senator Majority Leader Mitch McConnell said that -- quote -- "President Trump's nominee will receive a vote."

Is it fair to say that there really is nothing that Democrats can do to stop this?

KLOBUCHAR: First of all, I put it on my Republican colleagues, because they know what's at stake. People are literally voting in my state right now, this weekend. And

when you look at history, as President Clinton just described, the only one this close was when Abraham Lincoln was president. And he made the wise decision to allow the election to occur, and then decide who would nominate and who he would nominate. That happened.

And so, when you look at the situation now, we're voting right now. Health care is on the line. Jake, there is going to be an oral argument on November 10 on the Affordable Care Act, literally the decision for hundreds of millions of people about whether or not they will be kicked off their health care if they have a preexisting condition.

Environmental rules, as people are -- can't even breathe some of the air out in the West Coast, those are on the line. The right to organize, that is on the line.

So, it is coinciding with an election. So that's why, whatever Mitch McConnell does right now, my Republican colleagues are -- understand that the voters are voting.

And a number of them have already said that the next president, whoever wins, should be able to pick the justice. The people pick the president. The president picks the justice.

That was the McConnell rule, and that is the precedent they set.

TAPPER: But you don't have a plan, other than appealing to the consciences of Republican senators -- or not just a plan -- you don't have the ability to stop it, other than -- I have heard floated the idea that some activists want Democratic senators to block the government funding bill.

Is that something that you would do?

[09:20:00]

KLOBUCHAR: Right now -- first of all, Ruth Bader Ginsburg just died.

Secondly, while Mitch McConnell has said what he has said, these people aren't beholden to him. They're beholden to their own integrity, to their own moral compasses. They're going to have to make their decisions.

Yes, there's all kinds of things that we could look at for strategies, reforms in the future. All of that, yes, all of that, I have always said, should be considered.

But, right now, we have a number of Republican senators that are going to have to look inside and make a decision for themselves, for their states -- they're independently elected -- about how they are going to handle this.

I read her last words. Justice Ginsburg: "My most fervent wish is that I will not be replaced until a new president is installed."

TAPPER: Yes.

So, I want to ask you about what you said in 2016 after Merrick Garland's nomination to the Supreme Court didn't even get a hearing.

You said -- quote -- "The Constitution is clear. The Senate must consider the president's nominee and then choose whether to vote yes or no. We must do our job, hold hearings and vote."

Now, I understand that there is a big difference between a seat opening in February and a seat opening up 44 days before the presidential election.

But you weren't talking about timelines there. You were talking about the constitution. If the Constitution was clear then, is it still clear now?

KLOBUCHAR: We are in modern history, where the -- literally, just in the last time a justice was considered after someone died unexpectedly, Justice Scalia, a new rule was set by our colleagues.

And, as President Clinton said, you cannot have one set of rules for a Democratic president and another for the Republican. They set this precedent. And they can't mess around and use raw political power right in the middle of an election.

And I would say that is a major difference, because people are voting right now. And people understand what's going on, that they care about things like women's rights, that they care about things like being able to keep their health care.

And so, when the -- my Republican colleagues -- and some of them have already come out and said the right thing, because they understand what's at stake here, that you -- they don't want to join in with the president, who is lying and lying and lying, in terms of how he's going to handle a Supreme Court nomination.

Literally, our democracy is at stake. And I think Michelle Obama said it best when she said, your life depends on it, so you better vote.

TAPPER: Well, speaking of that, you talked about how the Supreme Court is going to hold arguments on Obamacare, the Affordable Care Act, one week after Election Day, November 10.

Even if Chief Justice Roberts votes to uphold Obamacare, it would be a 4-4 tie. And that would mean that the lower court ruling is in place, which would strike down the entire law as unconstitutional.

So, if there is a Trump justice in there, or if there isn't a Trump justice in there, doesn't it seem as though Obamacare is essentially dead?

KLOBUCHAR: No.

First of all, that case has been discredited and strongly criticized by people all over the spectrum as that case comes to the Supreme Court. Secondly, the justices could do many different things. And I'm not

going to get into -- I could take up your entire show with this in terms of how they handle the entire Affordable Care Act.

So, I don't concede anything.

But what I do know is, the Affordable Care Act has helped Americans. So many of them have health care, when they didn't before. Every single American now has the protection that, if you have diabetes, or if you have Alzheimer's, that you are not going to be kicked off of your health insurance. That is a big deal. That is what is at stake.

And I think what you translate here -- and I think about the fact that this is Ruth Bader Ginsburg's seat, Jake. This is her position. She never gave up, right?

So, when you ask me about rules in the future and all these things we can look at for reform that are very worthy to look at, I just look at the fact that she would not concede right now. She didn't concede when everyone told her, oh, you can't change the law, women can't be protected, oh, a man should argue that case.

She just kept going. And I think that's what you feel the spirit of all those people showing up at the Supreme Court, the outpouring of support for her, all the young people that are voting by mail, all the young people that are willing to show up and vote like they have never before voted, and all the people that are afraid of four more years with this president, when they are less safe than they were before he got into office.

No, I think what we have going on in this country right now, with people voting in the middle of a pandemic, with 200,000 people dead, I think it is like a literal, virtual, to fit our times, revolution going on. People have had it with this guy.

[09:25:00]

And that's why Joe Biden...

TAPPER: Yes.

KLOBUCHAR: ... is leading in states that no one ever thought that he could win.

TAPPER: OK.

KLOBUCHAR: But he's going to do it.

TAPPER: Senator Amy Klobuchar, thank you so much for your time today.

KLOBUCHAR: Thanks, Jake.

TAPPER: We appreciate it.

With weeks before a hugely consequential election, the president has a new focus, a new Supreme Court justice. Who might he pick? What will be the political consequences, if any?

Joining me now, the chief of staff to the vice president, Marc Short.

Mr. Short, thanks so much for joining us.

MARC SHORT, CHIEF OF STAFF TO VICE PRESIDENT MIKE PENCE: Thanks, Jake.

TAPPER: Can you give us any idea of a timeline here? Will the president introduce a nominee this week? Does he want a confirmation vote before the election?

SHORT: Jake, thanks for having me on.

I think that the vice president -- the president is prepared to make a nomination very soon. I think, as you know, we have had a couple nominations that have provided the president a chance to interview a lot of candidates

He's narrowed his list. And he looks forward to making a nomination and fulfilling his obligation as president to make a nomination. As some of your guests have commented already this morning, the reality in history is that there's been 29 vacancies during a presidential election year, and, 29 times, presidents have put forward a nominee.

So, the president's going to stick with his obligation to do that. He looks forward to making a nominee that I think the American people will be proud of.

And it's one of the reasons they elected Donald Trump to be president in 2016, was because he made the Supreme Court a central part of his candidacy.

TAPPER: You heard President Clinton say that all this flip-flopping by Republicans on the issue of nominating a Supreme Court justice during an election year will only increase public cynicism.

In 2016, then candidate Trump was asked if he was OK with President Obama nominating a replacement for Justice Antonin Scalia, who passed away.

Here's what candidate Trump said then:

(BEGIN VIDEO CLIP)

TRUMP: I think it's up to Mitch McConnell and everybody else to stop it. It's called delay, delay, delay.

(END VIDEO CLIP)

TAPPER: So, the Trump position for a Democratic president was delay, delay, delay. But, for him, it's urgent to confirm someone now.

How do you push back against the impression voters are going to have that there seems to be absolutely no principle at stake here; it's just about raw power? SHORT: Yes, actually, Jake, it's a pretty easy historical precedent.

Of those 29 I laid out for you, there are 19 of those vacancies that happened when the party in the Senate, the majority party, was the same party of the president. Of those 19, nine out of 10 were confirmed before Election Day, and another eight out of nine after Election Day in the lame-duck period, including John Marshall.

Take the separate sense scenario in which the party in control in the Senate is a different party than the president. There are 10 such vacancies. Only one out of 10 was filled before Election Day.

And you have to go back to the 1880s to find that example, under Grover Cleveland's presidency.

So, actually, the historical precedent is pretty clear. When you have a party in power in the Senate whose job it is to advise and consent and confirm the president's nominee, it continually has shown, historically, that that is the job of the Senate to confirm the president's nomination.

And history shows, it's the president obligation make a nomination. When you have a party in different power in the United States Senate, those nominations have not moved forward. And that's exactly what Leader McConnell did in 2016.

TAPPER: I take the point on the difference of power between the White House and the Senate.

But a lot of Republicans weren't talking about that in 2016. They were talking about the principle of, we're so close to an election, let's let the voters decide.

And it isn't just President Trump changing his tune on this. It's also virtually every Senate Republican. Take a listen to the man who is now the chairman of the Senate Judiciary Committee, Lindsey Graham, back in 2016.

SHORT: Sure.

(BEGIN VIDEO CLIP)

SEN. LINDSEY GRAHAM (R-SC): 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, made that nomination, and you could use my words against me, and you would be absolutely right.

(END VIDEO CLIP)

TAPPER: Graham doesn't care anymore. He says he's going to move forward with the president's nominee anyway.

I guess the bigger question I have is, is there not a risk that this obvious hypocrisy may cost Republicans in competitive races their seats, being associated with it? Might you be putting, say, Senator Susan Collins or Senator Cory

Gardner, who are in very tough reelection fights, at risk?

SHORT: Jake, I -- I reject the notion there's hypocrisy.

As I said, historical precedent is, when your party is in power, and the president nominates consistently -- going back to George Washington, the party has continued to confirm those nominees. So, I don't think there's hypocrisy.

Regarding the politics of this, again, the people of America elected Donald Trump president in 2016 in large part because he was so transparent and put forward a list and say, here's who I'm -- here's who I would nominate.

We still haven't seen a list from Joe Biden. We would welcome a list from Joe Biden that would show the American people, if he's elected, here's who I would appoint to the Supreme Court.

But, as far as the politics of it, I think the American people wanted Donald Trump to be in a position to make these nominations. And it's his obligation to do so.

TAPPER: I would love to see a list from Joe Biden. I'd also love to see President Trump's tax returns, as long as we're talking about precedents along those lines.

[09:30:03]

SHORT: Well, you know, that's clever, Jake, but the reality is that we know that the president has gone through multiple financial disclosures that are more revealing than the tax returns.

That was an issue in 2016. The American people elected him in 2016. He will continue to fill out those financial disclosures.

TAPPER: I'm glad you think it's clever. It's also just precedent. He's the first person since '76 who hasn't done it.

But let's stick to this issue about Ginsburg and the Supreme Court vacancy.

Do you want a vote before the election? Is that important to the president?

SHORT: I think that, as you know, Justice Ginsburg was confirmed within 43 days of her nomination.

Today, we sit here 44 days out from election, so it's certainly possible. But I think that the president's obligation is to make the nomination. We will leave the timetable to Leader McConnell.

TAPPER: According to NPR, Justice Ginsburg dictated a message to her granddaughter in her final say -- days.

It said -- quote -- "My most fervent wish is that I will not be replaced until a new president is installed" -- unquote.

Did the president ever consider honoring Justice Ginsburg's dying wish?

SHORT: You know, Jake, I think that, today, we as a nation mourn the loss of Justice Ginsburg. She's a -- she's certainly a giant upon whose shoulders many will stand. And she blazed a trail for many women in the legal profession.

But the decision of when to nominate didn't -- does not lie with her.

And I know, as well, in the last couple of months, she gave an interview to NPR in which she also counseled that she would oppose any sort of court packing.

So, the reality is that this is the president's obligation to make a nomination. He will do so. And he will do so in the near future.

TAPPER: The Supreme Court is poised to hear oral arguments on the constitutionality of the Affordable Care Act. That's going to be one week after Election Day.

Even if Chief Justice Roberts votes with the three Democratic- appointed justices, a 4-4 tie on the court would leave a lower court ruling in place striking down Obamacare as unconstitutional.

More than 20 million Americans could lose their health insurance. There clearly is no replacement plan ready to become law, despite promises since last year that one would be released imminently.

I guess the question I have is, how can the White House push this through, even though it will obviously cause harm to millions of Americans who will not have insurance, not have protections for preexisting conditions, because there is no replacement for them?

SHORT: Jake, if that hypothetical scenario played out, there would be possibilities to make sure that people with preexisting conditions have those guarantees. The president has stated multiple times he supports protections for people with preexisting conditions.

The reality is that Obamacare, I think, candidly, was also on the ballot in 2016, because a lot of Americans rejected the notion that they should be forced to purchase something they don't want.

This president's helped -- mad more -- more insurance plans available on the Obamacare exchanges to help make sure those prices stay down. He's kept it afloat. But we reject the notion that people should be compelled to purchase something that they don't want.

I think that's foundational to that case.

TAPPER: Well, it's interesting, because you keep talking about the 2016 election results as representing what the American people want.

And, look, President Trump won, according to the rules of the Electoral College, which is what the -- those are the rules we play by. But it doesn't reflect the will of the popular vote, because the popular vote, Hillary Clinton actually got three million more votes.

So, I just wonder why you -- how you can keep invoking the results as representative of anything other than a legitimate victory in the Electoral College, because it doesn't represent the will of the people, according to what a majority or at least a plurality want?

SHORT: I don't know, Jake, if it's your position that we shouldn't have an Electoral College.

TAPPER: No, I'm not saying that. I'm not saying that.

SHORT: But I also think that the reality is that, if this was purely a notion of popular vote, you would have seen Donald Trump campaigning a lot more in states like New York and California.

But the reality was, it's not. So, the president was campaigning based upon, how do I make sure that we get the most electoral votes?

TAPPER: All right, Marc Short, thank you so much for your time today. We appreciate it. Hope you're staying safe and healthy.

SHORT: Thank you, Jake. Thanks for having me.

TAPPER: What made Justice Ruth Bader Ginsburg exactly so notorious? Some of the women who knew her best join me to reminisce ahead.

Plus: The U.S. is on track to hit 200,000 coronavirus deaths very shortly, and experts do not expect to see any slowdown anytime soon.

A member of the White House Coronavirus Task Force will join me next.

(COMMERCIAL BREAK)

[09:38:46]

TAPPER: Welcome back the STATE OF THE UNION. I'm Jake Tapper.

The United States is on track to mark a staggering milestone imminently, 200,000 deaths in the U.S. from the coronavirus.

It's an unthinkable and tragic loss of life. And it does not appear that the pace of virus deaths will be slowing any time soon.

Joining me now, a member of the White House Coronavirus Task Force, Admiral Brett Giroir.

Thank you so much for joining us, Admiral.

So, we're now on the cusp of reaching 200,000 coronavirus deaths in the U.S.

I want you to take a listen to what President Trump said on March 29 about that number.

(BEGIN VIDEO CLIP) TRUMP: If we can hold that down, as we're saying, to 100,000, it's a horrible number, maybe even less, but to 100,000, so, we have between 100,000 and 200,000, we all together have done a very good job.

(END VIDEO CLIP)

TAPPER: Now, forgetting for a second the bizarreness of a claim that 100,000 to 200,000 deaths is a good job, especially that, given to official numbers, it's the highest number of deaths in the world, even accepting this metric, we're about to pass it.

Bill Gates said this week that -- quote -- "This has been a mismanaged situation every step of the way. It's shocking. It's unbelievable, the fact that we would be among the worst in the world" -- unquote.

Why?

[09:40:01]

ADM. BRETT GIROIR, U.S. ASSISTANT SECRETARY FOR HEALTH AND HUMAN SERVICES: So, thank you for having me on, Jake.

Look, every death is a tragedy. I'm a pediatric ICU physician. I have worked with patients who have died and their families every single day. That's why we're working every day to reduce that.

Where we are right now, we know so much more than we did early on. From the peaks in early July and late July, the number of cases are down by 41 percent. The number of people in an ICU are down 62 percent. The number of deaths are down almost 30 percent.

But we have to stay strong and do the things that could decrease the spread, number one, wearing a mask when we can't physically distance, number two, avoiding crowds, number three, hygiene.

And, with smart testing, we can flatten the curve and slow the spread. Again, we are working every day. We do have a formula to reduce the deaths, reduce the cases. But we all have to be disciplined and diligent to make sure we obey that every single day.

TAPPER: When President Trump holds a rally, and there are no masks required and no social distancing, is that this example that you're talking about, when you talk about the -- everybody needing to do their part to bring the numbers down?

I mean, we're getting -- I think we have 40,000 new cases a day. We just hit 200,000 deaths, the largest number of any country in the world. I mean, how is this not a failure? And how is President Trump leading us out of it in the right way, according to your own words?

GIROIR: So, let me just answer the two parts of that question. And thank you for that.

Number one, I want people to understand that we do have a number of cases. It's about 35,000 or 36,000 per day averaged over seven days. That number has reduced by about 41 percent. And the reason why I want to emphasize that is to make sure that

people are empowered to know that they can slow the spread and change the course, they can save lives by doing the things we talk about, wearing a mask.

And, on the second point, look, it doesn't matter. Biology is independent of politics. If you cannot physically distance, all the docs, all the public health experts, all of us are really unanimous that it's important to wear a mask when you cannot physically distance, avoid the indoor crowded spaces, wash your hands, combined with smart testing.

And, again, testing is a very important component of this. And that's the way that we reduce the spread, slow the curve, flatten the curve, and reduce mortality. But we have to keep doing that. This will not be over until we get a vaccine that's widely available.

TAPPER: What about the rallies? I mean, the number -- there -- Dave Matthews isn't touring this year because of the risk to his fans. But President Trump is doing these rallies.

The people are not wearing masks. I mean, these are super-spreader events, potentially.

GIROIR: So, again, I just want to repeat what I said.

Biology is independent of politics. The virus will do what the virus wants to do.

TAPPER: But don't tell me. Tell President Trump wants to do.

GIROIR: We always encourage the wearing of a mask, because it is a very important -- it's a critical step to prevent the spread.

And we want people to understand that. This needs to be echoed from the local, from the state, from the public. And, certainly, all of us on the task force want to make sure that people understand that. Every week, we supply governors with very specific recommendations, down to a county level, of how to slow the spread.

And, again, this is one of the most important things we can do. We are very encouraged by a vaccine. We have new treatments that, if you do get ill, you are much more likely to have a great outcome.

But, right now, prevention is certainly the most important step. And wearing a mask, avoiding crowds, especially indoor spaces, very important, and hygiene is what we need to stick to.

TAPPER: So, Admiral, President Trump said Friday -- quote -- "We expect to have enough vaccines for every American by April" -- unquote.

In terms of the timeline for a vaccine that is proven to work and be safe, he has been contradicted by his own doctors. The CDC director, Dr. Redfield, said it would come late second quarter, third quarter of next year. The head of Operation Warp Speed, Moncef Slaoui, said middle of 2021.

Why is President Trump making promises about a vaccine that none of his experts agree with?

GIROIR: So, I'm so pleased you asked me that, because I think there's been a lot of misunderstanding here. And I think everybody is right, but they're talking about different aspects.

In front of the Senate, Dr. Redfield and I both said that a vaccine that would be widely available in hundreds of millions of doses would not likely happen until mid-2021. That is a fact.

President Trump said that some projections, according to manufacturing, if things go as planned, we could have as many as 100 million doses by the end of this year. That is correct.

What I want to say, and I said in front of the Senate, and as well as other media, is that, from my perspective, even a few million doses early in November or December, if we have 5 or 10 percent of the population that we can vaccinate, we can get 80 or more 90 percent of the benefit.

[09:45:01]

For example, if we could vaccinate workers in nursing homes, we could protect the elderly and the vulnerable from disease. That would make an enormous impact on mortality, if we could vaccinate our teachers and those with preexisting conditions or those surrounding those people.

So, I think this has been misunderstood. I think Dr. Redfield is correct. The president is correct in the segment that he spoke about.

But what I do want to say is that a vaccine as early as possible, even in a few million doses, will be a godsend in terms of outcomes, hospitalizations, morbidity, and deaths.

TAPPER: Well, I think that you and Dr. Redfield are correct, and Moncef Slaoui are correct.

But President Trump said, we're essentially there, meaning, we're essentially there in terms of having a safe, efficacious vaccine.

And I know that the government is paying for hundreds of millions of doses of vaccines, anticipating that one of them is going to work. But you will agree with me that, as of right now, even though there are three in stage three trials, we do not have, we do not have a safe, efficacious vaccine ready to go, right?

GIROIR: The availability of a vaccine depends on one thing only. And that is the evidence and the science.

We have to wait until the trials demonstrate that a vaccine is safe and effective. There are all kinds of safeguards to make sure that this is an independent, scientifically-based decision. There's an independent Data and Safety Monitoring Board. And until that happens, you can't even start the process. So, right

now, we do not have a safe and effective vaccine. The evidence and the data will drive that. I can't predict that. It depends on how safe and effective the vaccine is and how many cases of coronavirus are actually in the study population, purely based on evidence and data.

And I just want to assure the American people that, when a vaccine is authorized by the FDA, it will be based on science and data. If I'm prioritized, I will be in line. If my granddaughter's prioritized, she will be in line. We can have confidence that, when that happens, it will be safe and effective, but not before.

We have to let the evidence and the data drive it.

TAPPER: Let's talk about testing, because that's your area.

On July 14, you said -- quote -- "We're going to be over a million tests very soon. That's not even a question."

Actually, the average number of coronavirus tests in the last seven days is 778,000 a day, not a million a day. What happened?

GIROIR: So, this month, we have the availability of about 90 million tests. And about half of those will be point of care. And you have seen the announcements.

We're ring-fencing nursing homes, over five million tests to nursing homes. We just purchased $150 million of 15-minute tests that are card-based, that we're distributing to nursing homes and soon to the states. So, the availability is there. We want to encourage more testing.

Part of this is because the number of people in hospitals are down. The number of cases are actually down from July and August. So, when you start saying, one person has it and you contact-trace eight or 10, so the numbers go down.

But we do want to encourage more testing. We have sent surge sites, federal surge sites to 19 different cities, primarily focusing on the younger population that could be asymptomatic, because we know they're very important in the spread of this infection.

We're going to continue to surge. We're going to continue to support testing. And, again, every week, we send county-level recommendations to states. We want to work with them to increase that. We do need more testing...

TAPPER: Yes.

GIROIR: ... particularly in outbreak areas that we identify on a weekly basis.

TAPPER: Admiral, as a parent, I have to say that I thought, by September, we would be up to speed where kids could go back to school, and the students and the faculty and the staff and all the support workers could maybe get tested once a week, so we know it would be safe for the kids and their teachers to be there.

Testing is not up to that level. There are more than 56 million K-12 students in the United States. Why are we not there? Why can my kids not get tested? So many kids are suffering because they have to be at home studying remotely.

You and your administration know the cost this is bearing on these families. Why do we not have testing for schools?

GIROIR: So, two answers to that.

Number one, I want to be clear that testing every student every week is not necessary to bring children back to school. And, in fact, almost no state has that in their plan. It's very important, if a child gets sick, to test them, to contact trace around that, and to perhaps do some baseline surveillance testing.

We do have that kind of testing available. And, again, the BinaxNOW, $150 million that we just purchased, we will start distributing those to states. I work with states every day.

What schools need to do, the most simple thing is, number one, reduce the community spread. When we reduce the virus in the community, that's a -- that's a very important step to getting children back to school.

[09:50:08]

Secondly, the kinds of things we have just been talking about, children wear a mask. My 3-year-old granddaughter is in preschool. She has a mask. There's improved ventilation. There's physical distancing. There's all those things that keep them safe.

So, it is -- it is absolutely possible and likely and beneficial to children to have them physically present, when we can lower the community spread and implement those measures associated with smart testing.

And smart testing, again, is not testing every student every week, the sick, the contact trace, and a baseline of surveillance. Maybe that's 5 or 10 or 15 percent per week. We are there. And we're working on the states to implement that.

TAPPER: Admiral Giroir, thank you so much for your time.

I just want to say, before you go...

GIROIR: Thank you, Jake.

TAPPER: And I know you won't comment on this, because I tried to get you to.

The most powerful person in this country is constantly undermining your message about mask-wearing. You need to convince him to change that message, because one of the reasons spread continues is because people are not respecting the words you are saying, words that I think are very important.

Thank you so much for being with us today, Admiral. We really appreciate it.

JAKE TAPPER, CNN ANCHOR: I want to turn back now to the life and legacy of Supreme Court Justice Ruth Bader Ginsburg.

Joining us now to discuss, Nina Totenberg, NPR's legal affairs correspondent, who had a five decades long friendship with Ginsburg, Irin Carmon, the co-author of the great book "The Notorious RBG," and a CNN contributor, and Joan Biskupic, CNN's Supreme Court analyst, who had private conversations with Ginsburg over nearly two decades.

First of all, let me just say to all of you, my condolences because as important as she was to so many millions of Americans, I know she actually personally meant something to all three of you.

Nina, let me start with you.

Your relationship with Justice Ginsburg goes back nearly five decades, long before she became a judge. It all began with a phone call early in your career. Tell us about that call and the friendship.

NINA TOTENBERG, LEGAL AFFAIRS CORRESPONDENT, NPR: So I was in my early 20s, assigned to cover the Supreme Court, about which I knew almost nothing. And I started reading this brief that was -- turned out to be the first case in which the Supreme Court held that the state couldn't discriminate against women arbitrarily in its laws. And -- but I didn't really understand that because it involved the 14th Amendment, passed after the Civil War, when women didn't even have the right to vote.

So I went to a phone booth in the Supreme Court press room, in those days we had phone booths, and I called her up because she was the author of the brief. She was a professor at Rutgers and I asked her this question. And an hour later, I staggered out of that phone booth like a goose primed for foie gras. I knew so much.

A few months later, we met -- actually met at a conference. We never agreed on what it -- which conference it was about, but it was very boring. So we went shopping.

TAPPER: That's wonderful.

Joan, the Supreme Court is famously secretive. Justices take their privacy seriously. But you had several opportunities to meet with Ginsburg year after year where she was all too happy to share her time, her thoughts.

How unusual was that level of access and why do you think she was always so comfortable candidly speaking her mind. Sometimes it even got her in trouble.

JOAN BISKUPIC, CNN SUPREME COURT ANALYST: It did. But, you know, I think she -- she had a message. She was quite generous about her colleagues. I first went to see her when I was writing the biography of Sandra Day O'Connor, who was the first woman on the court. And something that we don't think of Ruth Bader Ginsburg in these terms is, she had a very vivid way of speaking. And she would tell me anecdote after anecdote about her experiences with Justice O'Connor and then her good friend Nino Scalia, who I also wrote about. So I think she wanted to bring me her -- kind of the human dimension of these people that we might not have seen otherwise.

And I have to say, she was very generous about how she thought of her colleagues. She was -- she could also be kind of cheeky in her sense of humor. Not brazen, but cheeky. And one of my favorite early tales that she told me about Justice O'Connor was when Ruth Bader Ginsburg went on in 1993 and then Chief Justice Rehnquist had assigned her a very difficult first opinion, a complicated case, and Justice Ginsburg went to Sandra Day O'Connor and said, Sandra, how can he do this to me, it's so complicated. And Sandra Day O'Connor said, Ruth, you just write it, you do it and you wait for your next assignment. And Justice Ginsburg said to me, that was so Sandra.

So she -- so she was -- she was wonderful to the very end, even when she was so open about President Donald Trump and some of her other colleagues.

TAPPER: Irin, she became something of a liberal pop culture icon in the last few years, as Bill Clinton referenced earlier, through "Saturday Night Live" skits and her viral workout videos and, of course, "The Notorious RBG," a term that you helped popularize.

Supreme Court justices typically don't get that kind of popular attention from the public. What did she make of this, especially that it was so late in life?

IRIN CARMON, CO-AUTHOR, "NOTORIOUS RBG": Well, you know, she liked to say that she and the Notorious B.I.G. were both from Brooklyn, even though in the beginning I think she actually had to ask her clerks who as notorious.

Look, I mean, Joan and Nina have both spoken to how much she saw her role as explaining to the public their work at the court and other thing that she was passionate about, including feminism. And so, the Notorious RBG, I mean, of course, it was flattering for her and she enjoyed connecting with younger generations, but I think it was also about this broader project of helping more people understand what it was that the court was doing.

And when I think about what it was that young people saw in her, and not just young women, but also young men, and not just young people, people of all generations, it was who she was and what she stood for. And what she stood was for more than just middle class white women getting jobs. It was a broad vision of gender equality and reproductive freedom that unfortunately is still unfinished.

And I think that just the fact that in her life and in her jurisprudence as a lawyer and as a justice, standing for that was something that really inspired a lot of people from her vantage point and the highest court in the land.

TAPPER: And, Nina, what impact do you think Ginsburg leaves on the institution of the court itself?

NINA TOTENBERG, LEGAL AFFAIRS CORRESPONDENT, NPR: She really was an institutionalist. And I think that in her fear as was that if she died, which happened, of course, she said on the last days of her life, my fervent wish is that I not be replaced until a new president is installed. And by that she meant whoever won the election -- because she feared for the institution.

If there was the kind of maelstrom, the kind of firestorm you see unfolding now, and she was very much against court packing plans, expanding the number of people on the court, she said nine was the right number, but she foresaw that if there was too much politicking in the middle of an election, it would have a bound rebound effect and that that's what worried her.

And she loved her colleagues. She did everything she knew how to make her interaction with them. And you see it in their -- in their statements, how personal their statements are after her death.

Justice Souter said he loved her to pieces. Justice Thomas said that he couldn't imagine a more -- a better colleague, and how much she would be missed. And that is what she brought to the court and that's what she wanted to be able to continue. And I think she was very -- and probably justifiably -- worried about.

TAPPER: Erin, we've already talked about with Senator Klobuchar and Marc Short, the idea that Obamacare hangs in the balance, but Roe v. Wade, quite obviously, does as well.

You wrote in "New York" magazine this weekend that her passing leaves her work not only unfinished, but the risks of being undone. You also write something I thought was very interesting that Ginsburg, quote, continued to critique Roe, the decision which permitted abortion rights in this country, she continued to critique it as poorly reasoned and too sweeping until the end.

Tell us more about that.

CARMON: So, Justice Ginsburg's greatest wish was that reproductive freedom be protected in all of its manifestations. She brought a case on behalf of the woman who the state was actually trying to force to have an abortion, and she hoped that that would be the case that would ensure reproductive freedom. She was a champion of abortion rights. Let not be misunderstood. But what she wanted for women's reproductive freedom to be grounded in equality as opposed to all the different ways that the court found it.

And she also thought that the court was not the only leaver for social change. Yes, she was an institutionalist but she wanted all of the levers of government to work, including Congress, and executive branch, and she was really inspired by the women's movement that took to the streets.

And so, she thought that there was all different roles. Her role as a litigator and as a judge, but the fact that people were hitting the streets made her work in the '70s easier. So, yes, she did think Roe went too far and didn't have the right

reasoning, but ultimately, what she wanted was a world in which all people could pursue their own destinies, regardless if they were men or women, regardless of whether they were ready to have a child or wanted to have one.

TAPPER: Joan, your final thoughts?

JOAN BISKUPIC, CNN SUPREME COURT ANALYST: Yeah, you know, she had a sense of always pushing and learning. The last time I saw her earlier this year, it had to be -- it was on a topic of civil procedure and how important it was to fundamental liberty.

And she typed up a quote from Felix Frankfurter that she brought to her interview and she clutched that piece of paper. And she said she had been so excited to go look this up again. And there was something about her that was still had a school girl youthful enthusiasm about everything, whether it meant, you know, the underpinnings of Roe or just her own learning experience. She was always -- she was always in the game 100 percent.

TAPPER: All right. What a treat to talk to all three of you. Thank you so much.

Fareed Zakaria starts now.