Return to Transcripts main page

New Day

Epic Battle Begins To Replace Ginsburg On The Supreme Court; Sen. Graham Flip Flop Highlights GOP Supreme Court Hypocrisy; US About To Surpass 200,000 Coronavirus Deaths. Aired 7:30-8a ET

Aired September 21, 2020 - 07:30   ET

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


[07:30:00]

(COMMERCIAL BREAK)

ALISYN CAMEROTA, CNN HOST: All eyes on Republican senators as they prepare to hear President Trump's Supreme Court pick. Senators Lisa Murkowski and Susan Collins say they oppose the effort to confirm a nominee before Election Day. Senate Majority Leader Mitch McConnell plans to move quickly though.

Despite his decision to ignore president OBAMA'S election year nominee in 2016. Here is what Republican Senator Lindsey Graham said at the time.

(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 made that nomination and you could use my words against me and you'd be absolutely right.

(END VIDEO CLIP)

CAMEROTA: Joining us now, Democratic Senator Chris Coons. He's a member of the Senate Judiciary Committee which would hold confirmation hearings. Senator, nice to see you. Have you run into Lindsey Graham over the past few days or talked to him about why that seeming massive flip flop?

SEN. CHRIS COONS (D-DE): Alisyn, no I haven't reached out to Chairman Graham over the weekend. I will see him later today and I do intend to have conversation not just with him but with a number of other colleagues, Republicans and independents because at the end of the day as Joe Biden said in a forceful and clear speech at the National Constitution Center, this is in their hands to decide whether they're going to violate their own precedent which as you quoted Lindsey Graham saying there, they set in 2016.

Whether they're just going to flip flop, turn right back around and say oh, it doesn't matter that we're 43 days from an election, it doesn't matter that there are voters voting in half the states, in 25 states. We're going to barrel ahead with a partisan exercise and forced through a conservative justice. And Alisyn, let me just take a moment and thank you for the segment you just did, honoring and remembering those who passed away during this pandemic, the nearly 200,000 Americans who died. I also think we should take just one breath to recognize the remarkable legacy of Ruth Bader Ginsburg, a towering giant despite her diminutive size, a clarion call, a forceful voice for justice despite her sometimes soft spoken nature.

She was a fierce advocate, particularly for gender equity and Joe Biden has rightly said that health care is on the ballot. It was Justice Ginsburg's dying wish dictated to her granddaughter on Rosh Hashana that the voters should choose the next president and the next president should choose her successor because she knows that the future of gender equity, of the Affordable Care Act, of so much more, clean air, clean water, labor rights and the right to organize, it all hangs in the ballots.

CAMEROTA: We appreciate you taking a moment to remember all of that. I hear you. We do speed ahead with what's next because all of this feels so urgent and so critical. Part of the reason we want to talk to you is because we know that you do have those across the aisle conversations and you do try to make those personal appeals to your Republican colleagues.

Have you had any of those conversations yet?

COONS: Yes.

CAMEROTA: And what have they told you?

COONS: Well, I'm not going to repeat it here on national television but you know look, I'm very grateful that two senators have come out with clear positions in particular you know Senator Murkowski of Alaska, I think summed it up perfectly, fair is fair.

Senator Murkowski had just said on Friday, just coincidently had repeated in an interview in Alaska Public Radio that the position she took in 2016 should be the position that Republicans take in 2020 and then Justice Ginsburg passed away.

[07:35:00]

It wasn't certain that she'd repeat that but she has stuck to that position. I'm of course disappointed in a number of folks who are institutionalists, so who are retiring senators that they simply say well, there's a Republican majority so we're going to jam this through.

The consequences for the institution of the Senate, for the legitimacy of the Supreme Court, for the American people are grave here and I'll remind you. There is a case being argued in the Supreme Court the week after the election in which 18 Republican state attorneys general with the support of President Trump are trying to take away pre-existing health care condition protection from 100 million Americans. And we have 6 million Americans who have been infected in this pandemic, largely exacerbated by Trump's bungled response who may now have new pre-existing conditions and the Affordable Care Act protects women against discrimination by insurance companies on the basis of being women which is exactly the sort of legacy that Justice Ginsburg would want us to fight really hard for.

CAMEROTA: I don't need you to share any of your verbatim conversations with Republican though if you want to feel free but what I'm trying - what I'm getting at is, are there any that you have spoken to beyond Congresswoman Murkowski who have expressed some discomfort with moving ahead at this pace, 43 days before an election?

COONS: Discomfort yes but you know, look, at this point this is going to be a very tough series of conversations in the next few days. Obviously Majority Leader McConnell, President Trump is going to push really hard on every single Republican to make up their mind quickly, to make a public declaration and not to move back from it.

I think what Joe Biden said at the National Constitution Center is exactly right. He served in the Senate for 36 years, he knows how important precedent and mutual respect is and at the end of the day, we're counting on a few Republicans to reflect on their conscience and to put country over party in this incredibly important moment.

If Donald Trump is reelected, they may proceed. If Joe Biden is elected then we know we'll be moving in a direction more respectful of Justice Ginsburg's legacy and of balance and frankly, I'm going to do absolutely everything I can to see that Joe Biden is elected the next president of the United States and that that will give us a position to get out of this pandemic, to restore and strengthen healthcare, to strengthen our economy, to regain our place in the world, it'll make a difference for everything.

So when Joe Biden says it's all on the table in this election, I couldn't agree more.

CAMEROTA: One of the things you hear Republicans say, they invoke the Biden rule, the so-called Biden rule from I think 1992. He was speaking hypothetically, do you have a view or response to them when they bring up the Biden rule and why that somehow makes all this OK?

COONS: So three things if I could, you know first as I said repeatedly on the floor in 2016, they were misapplying a stray comment from 1992. If you went into the context - anyway it did not strictly apply. If the Republican majority when Justice Scalia passed in February, 10 months before the election of 2016, chose to make a new rule, whoever they want to name it for and then defended it and then reasserted it in 2018, they should be held to it.

We are 43 days from an election, not 10 months from an election. Voters are already casting ballots in half of our state. It is the height of hypocrisy to having held open Justice Scalia's seat to four years later do the exact opposite less than six weeks before the election. When Abraham Lincoln himself is the one president who when - when a vacancy came up, this close to election refused to fill it.

CAMEROTA: Here are some live pictures of protests in front of the Supreme Court and I understand that Democrats are very upset and frustrated by the hypocrisy but Republicans, many of them vote for President Trump for this very moment. They like that they're going to get a conservative Supreme Court justice.

This is the moment they've been waiting for and that might just be more powerful.

(BEGIN VIDEO CLIP)

UNIDENTIFIED MALE: Everybody in this country-

(END VIDEO CLIP)

COONS: Well, that certainly has been a motivating factor for millions of American voters for decades but my hope, my faith is that there are millions more who see this moment for what it is.

A moment of deep division in our country where Donald Trump personally has accelerated that division, a moment where his failed leadership on responding to the pandemic has cost 200,000 American lives and for those faith voters who are motivated by concern about justice and a sense of respect for faith. I think they should look to Joe Biden.

[07:40:00]

How he's lived his life, his character and his conduct and compare that to President Trump and recognize that whether it's a welcoming the stranger in the foreigner, their attitude towards immigration or whether it's how they support those at the margins through healthcare, support for seniors, how they protect creation through promoting clean air and clean water and fighting for addressing climate change or in some ways most importantly how they treat others with respect and empathy.

That Joe Biden is someone who sees clearly all of these issues through a lens that should engage and motivate them. Last, I'll just say this Alisyn, in a moment where the issue of racism and racial disparities so clearly on the agenda in front of us, the United States has never addressed our founding sin of white supremacy and slavery.

Joe Biden is someone who can lead us forward into that moment. Donald Trump decidedly is not.

CAMEROTA: Senator Chris Coons, great to talk to you. Thanks so much for being on New Day.

COONS: Thanks Alisyn.

CAMEROTA: And now for the record books at the prime time Emmys. We'll show you which stars brought home the gold last night.

UNIDENTIFIED MALE: Is it actually gold?

[07:45:00]

(COMMERCIAL BREAK)

JOHN BERMAN, CNN HOST: I didn't get nearly enough sleep. Why not? Well, you can thank Cam Newton and the New England Patriots for that. Goal line stand, Buzzer Beaters, Sunday night had it all. Andy Scholes with more in 'The Bleach Report.'

There were some great games, Andy.

(BEGIN VIDEO CLIP)

ANDY SCHOLES, CNN CORRESPONDENT: Certainly were John and your Patriots, you know, last time we saw them battling the Seahawks on the goal line with the game on the line with Super Bowl 49. The Patriots of course won that game in dramatic fashion with that interception of Russell Wilson but this time around it was the Sea Hawk's defense coming through with the big title, lagged three seconds on the clock, down by five.

Cam Newton got to try to keep it to win the game but the Seahawk's defense just blows up the play. They were in the game 35 to 30. Russell Wilson had five touchdown passes in that game. All right, so the NBA Western Conference finals game Two.

Lakers down by one, two seconds left, got to go to LeBron right? No, Anthony Davis, the fade away three at the buzzer to win the game. His team mates just run and mob him. Lakers beat the Nuggets 105-103, taking a 2-0 lead in that series.

It will continue on TNT tomorrow night. And finally Bryson DeChambeau running away with the U.S. Open in Winged Foot in New York. The 27- year old winning his first major by six strokes.

He was the only one under par for the tournament and if you didn't know, Dechambeau put on 40 pounds during golf shutdown, so he could just destroy the ball off the tee and it is certainly working out for him.

(END VIDEO CLIP)

So, John, if you're looking to improve your golf game or any of your other athletic endeavors, I suggest putting on 40 pounds.

CAMEROTA: That's my kind of game.

BERMAN: Eat your way to success.

SCHOLES: 6,000 calories a day.

BERMAN: That's what we're doing.

CAMEROTA: I've never heard that strategy before, but I like it. Andy, thank you. SCHOLES: All right.

CAMEROTA: OK, last night's virtual Prime-time Emmy awards had an actual slam dunk.

(BEGIN VIDEO CLIP)

ANNOUNCER: Katherine O'Hara, 'Schitt's Creek". Eugene Levy, "Schitt's Creek."

UNIDENTIFIED FEMALE: Daniel Levy, Schitt's Creek.

(END VIDEO CLIP)

CAMEROTA: Is that an actual slam dunk? Did I say that incorrectly? Okay, "Schitt's Creek" sweeping the entire comedy category, winning all seven Emmys, including best comedy series in all four acting categories. And on the drama side--

UNIDENTIFIED MALE: The Emmy for outstanding Drama series goes to "Succession."

CAMEROTA: The HBO series "Succession" dominated, taking home four awards of the night. Another HBO show "Watchman," also--

BERMAN: Best show ever. Best show ever.

CAMEROTA: Won four Emmys.

BERMAN: Ever.

CAMEROTA: Including one for its star, Regina King.

BERMAN: Best performer ever.

CAMEROTA: She accepted the award as did another winner, Uzo Aduba, wearing shirts honoring Breonna Taylor.

BERMAN: "Watchman" is the best Television show besides "New Day" ever.

CAMEROTA: I'm getting the impression that you feel that way.

BERMAN: It was so good.

CAMEROTA: OK, I'm just happy that my new besties, Daniel Levy and Mark Ruffalo, they don't know my name, but we are best friends ever since I got to interview them about their performances for these things and they won.

BERMAN: I feel like there's a whole group of hundreds of people with whom you're best friends who don't know your name.

CAMEROTA: That is a fact. Yes, and they are new members of that group.

BERMAN: All right, developing right now, White House Press Secretary, Kayleigh McEnany says that President Trump is very likely to announce his nominee to replace Justice Ruth Bader Ginsburg as early as tomorrow.

That's a mere 42 days before the November election. Joining me now is Professor Brian Kalt. He's professor of law at Michigan State University and professor, we brought you here because you have done some fact checking here about what the facts are of the timing of this nomination and what the historical context would be.

So were the president to nominate a justice tomorrow or the next day, where does that place it in history?

[07:50:00]

BRIAN KALT, PROFESSOR OF LAW, MICHIGAN STATE UNIVERSITY: It would be the closest to an election before an election that any president has submitted a nomination. We've had two vacancies open up later than this. Both of those were not acted on until after the election although back then the senate wasn't in session this late.

So there's really no precedent for anything like this.

BERMAN: And there's certainly no precedent to nominate someone this late and have that person be confirmed before Election Day, is there?

KALT: Correct. There are precedents for a president after losing the election jamming someone through which I suppose is even more politically objectionable but again, nothing - nothing this late. The latest anyone has been confirmed in an election year is July.

BERMAN: So this is obviously very different and with that just for a frame of reference, just to walk down memory lane, the 2016 Merrick Garland which was more than 200 days before, there was plenty of precedent to nominate and confirm someone within that time frame, correct?

KALT: There was although, it - most of the time if the president didn't have the Senate on his side, he would try and fail. They would at least have hearings in both the person down but yes there - there was precedent in 1888. It was later than that and President Cleveland had Senate that was the other party and they confirmed his nominee for Chief Justice.

BERMAN: I guess the people have a sense of the time frame here. The average time to confirm from nomination, it's 40 days to a hearing, 70 days to confirmation. So 40 days to a hearing would put the first hearing on the justice two days before Election Day. 70 days for confirmation would be within the lame duck.

I do want you to explain to people. There is a lot of precedent for things to happen in the lame duck session of Congress which would be between Election Day and Inauguration. Talk about that.

KALT: Yes, so sometimes the vacancy doesn't open up until then, sometimes it carries over but there have been a number of cases, eight cases where there was a lame duck vacancy. In three cases as I said, the president lost the election, his party lost control of the Senate and before the other party came in, they pushed someone through. But in two of those three cases and these are all in 1800s. In two those three cases the Senate was unanimous. The president in most recent case picked someone that his opponent had nominated to a lower court and was the other party so it was unanimous. There's only one case where they put someone through.

The vacancy opened up very shortly like a week before the president's term ended and they rammed someone through within a week before the other party.

BERMAN: So it could happen. If Democrats think they're upset now, imagine what would happen if it were all to be you know in that short lame duck period. Professor, what does the constitution say about how many Supreme Court justices there are?

KALT: The constitution doesn't say anything so it's totally up to Congress and they set the number, it's been set at nine since the 1860s, hasn't changed since then.

BERMAN: The reason I bring it up and again, I'm not suggesting this should happen but you say since the 1960s, 1860s rather it is been set at nine. A lot of the cases we're talking about the Republicans are looking at now for precedent, the claim precedent for how and when to confirm a justice from the 1800s as well. In fact there's also precedent for changing the number of Supreme Court justices, isn't there?

KALT: There is. Generally, there were two instances where they try to shrink the court in order to prevent a particular president from nominating someone and that succeeded against President Johnson. When they've grown the court, generally when they grew the court, it was because the country is growing because there were more circuits added and back then, justices had to ride circuit and there was one circuit per justice.

So whenever they would add more circuits, they would have more seats on the court. They dispensed with the circuit riding and so that's not a thing anymore and that's why - the main reason why that size hasn't changed since then. FDR tried to change, tried to pack the court in the - in the thirties and even at the height of his popularity, he just won a huge selection and huge mandate but that wouldn't fly.

BERMAN: It's hard to do but it would take an act of Congress, not an amendment to the constitution, correct?

KALT: Correct, correct. It would just be simple legislation and just like confirming a justice at whatever late date, if they have the votes, they can do it.

BERMAN: Professor Kalt, thank you very much for this reality check. I really appreciate it.

KALT: Thank you for having me.

BERMAN: All right the question facing the Senate right now is will they take up this nomination before the election. Four years ago, Senator Lindsey Graham said this.

(BEGIN VIDEO CLIP)

GRAHAM: Let's let the next president, whoever it might be make that nomination and you could use my words against me.

(END VIDEO CLIP)

BERMAN: He's now the Chair of the Senate Judiciary Committee engaged in a giant flip flop. That's next.

[07:55:00]

(COMMERCIAL BREAK)