Return to Transcripts main page

New Day

President Trump States He Will Announce Nominee To Replace Ruth Bader Ginsburg On Supreme Court; Judge Amy Coney Barrett Said To Be Leading Candidate For President Trump's Supreme Court Nominee; Senate Majority Leader Mitch McConnell States President Trump's Supreme Court Nominee Will Get Senate Vote; Epic Battle Begins To Replace Ginsburg On Supreme Court; U.S. About To Surpass 200,000 Coronavirus Deaths. Aired 8-8:30a ET

Aired September 21, 2020 - 08:00   ET

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

UNIDENTIFIED MALE: Stay strong and do the things that could decrease the spread. And with smart testing we could flatten the curve and slow the spread.

(END VIDEO CLIP)

UNIDENTIFIED MALE: This is NEW DAY with Alisyn Camerota and John Berman.

ALISYN CAMEROTA, CNN ANCHOR: We want to welcome our viewers in the United States and all around the world. This is NEW DAY. And just as plans are being made to lay Ruth Bader Ginsburg to rest, an epic political battle is in full swing to replace her on the Supreme Court. At this hour, dozens of protesters gathered on the steps of the Supreme Court, calling on the Senate to hold off on confirming a nominee until after we know who will be president.

Moments ago, the White House press secretary announced that President Trump will likely name a nominee by as early as tomorrow. Senate Majority Leader Mitch McConnell says he will move quickly to confirm that person even though he and Senator Lindsey Graham refused to allow President Obama to fill a vacancy more than 200 days before the 2016 election.

JOHN BERMAN, CNN ANCHOR: So far, two key Republican senators have come out against confirming someone before Election Day, and a new national poll finds that 62 percent of Americans believe the winner of the November election should appoint Ginsburg's replacement. This morning, we have brand new reporting on the president's short list of potential nominee nominees, which may have just gotten shorter. His enthusiasm for one perceived leading candidate might be fading. We have much more on that shortly.

Other major news this morning, data that clearly shows the number of daily coronavirus cases is rising again. Look at the tail end of that graph. You can see the seven-day moving average above 40,000 again. This is of enormous concern to scientists across the country. Cases are rising now in 28 states. That's all the states in orange and red there. And within the next day or two, the United States will pass the horrifying number of 200,000 people killed by coronavirus.

We're going to begin with the latest on the court. We have new information on timing. Joe Johns at the White House. Joe?

JOE JOHNS, CNN SENIOR WASHINGTON CORRESPONDENT: Good morning, John. White House Press Secretary Kayleigh McEnany out on another network this morning indicating that it is very likely that there will be an announcement on a nominee to the Supreme Court before Wednesday, also indicating that, of course, is still up to the president.

If we do get another name for a nominee out this week, it will certainly come very quick, quicker than any other nomination has occurred. Also it is something that the Senate leadership says they want to push through very quickly as well, but they're using a very different message from what they used four years ago when President Obama tried to fill a vacancy on the Supreme Court.

(BEGIN VIDEOTAPE)

JOHNS: A Supreme Court fight brewing on Capitol Hill. Less than 24 hours after Justice Ruth Bader Ginsburg died Friday, Senate Majority Leader Mitch McConnell vowing President Trump's nominee to replace her will get a vote in the Senate. President Trump says he will put forward his nominee this week.

DONALD TRUMP (R), PRESIDENT OF THE UNITED STATES: It will be a woman, a very talented, very brilliant woman.

(APPLAUSE)

JOHNS: Senate Republicans arguing it is their constitutional duty to fill the seat.

SEN. TED CRUZ (R-TX): I believe the right thing to do is for the Senate to take up this nomination and to confirm the nominee before Election Day.

JOHNS: But Republicans, led by McConnell, refused to give President Barack Obama's Supreme Court pick Merrick Garland a vote, despite that nomination coming nearly eight months before the 2016 election.

MITCH MCCONNELL (R-KY), SENATE MAJORITY LEADER: This nomination ought to be made by the president we're in the process of electing this year.

JOHNS: after his inauguration, Trump nominated Neil Gorsuch to the court to fill the seat. In 2016, Senate Lindsey Graham, who now chairs the Judiciary Committee, highlighted the new precedent.

SEN. LINDSEY GRAHAM (R-SC), CHAIRMAN, JUDICIARY COMMITTEE: I want to you 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.

JOHNS: And again in 2018. GRAHAM: If an opening comes in the last year of President Trump's term

and the primary process has started, we'll wait until the next election.

UNIDENTIFIED MALE: You're on the record?

GRAHAM: Yes.

UNIDENTIFIED MALE: All right.

GRAHAM: Hold the tape.

JOHNS: But now graham, in his own tight reelection campaign, says he will support a Trump Supreme Court nominee. Democratic presidential nominee Joe Biden imploring Republicans not to move forward with any nominee.

JOE BIDEN (D), PRESIDENTIAL NOMINEE: Don't vote to confirm anyone nominated under the circumstances President Trump and Senator McConnell have created. Don't go there. Uphold your constitutional duty, your conscience. Let the people speak.

[08:05:03]

JOHNS: It would take four Republican senators breaking ranks to block Trump's nominee, and several vulnerable Senate Republicans are in tight reelection races that could change the balance of power in the Senate. Senator Susan Collins and Lisa Murkowski have already said they do not support filling the seat before the election, but it is unclear if that means they will vote against a nominee. The Democratic leadership vowing to fight back, even considering increasing the number of justices on the Supreme Court.

SCHUMER: We first have to win the majority before that can happen, but once we win the majority, God willing, everything is on the table.

(END VIDEOTAPE)

JOHNS: So who is the president leaning toward? Our reporting here at CNN has been fairly consistent over the last 24, 48 hours, that Amy Coney Barrett, this is a judge who has already been vetted by the White House before, is the favorite, remains the favorite for a number of reasons, including the fact that she is seen as the safest choice.

We're told that the president is leaning toward Amy Coney Barrett, and also that Senator Mitch McConnell, the Senate Majority Leader who has to push all of this through, also has made his choice clear, and that it's Barrett simply because it would help make a very smooth process, presumably up on Capitol Hill. Alisyn, back to you.

CAMEROTA: Joe, thank you for all of that information.

Joining us now, we have CNN Chief Legal Analyst, Jeffrey Toobin, and renowned litigator David Boies. He argued for Al Gore at the Supreme Court in the 2000 Florida presidential election recount. Great to have both of you. So Jeffrey Toobin, let's just begin with that bit of breaking news that Joe just reported on out of Kaitlan Collins reporting that Amy Coney Barrett seems to have leapfrogged the other options in President Trump's list of favorites. She's now at the top.

JEFFREY TOOBIN, CNN CHIEF LEGAL ANALYST: She's been a favorite of the conservative base since her name surfaced for the Kavanaugh vacancy. She is as close as you can find to a guaranteed vote both to overturn Roe versus Wade and to overturn the Affordable Care Act, Obamacare.

She is not just a conservative on social issues, but on legislative matters. And she had spoken out against John Roberts decision to uphold Obamacare. So I think the stakes of this nomination are very clear. If it is in fact Barrett, she is someone who will implement Donald Trump's agenda across the board, and that's why she is the leading candidate.

BERMAN: I want to give people some more breaking news. President Trump actually, despite what Kayleigh McEnany, his press secretary, said, President Trump just announced that the nomination will come either Friday or Saturday, the reason being he says he wants to give the nation the appropriate time to mourn the loss of Justice Ginsburg.

And David Boies, to you on that very point, I think it's a sign of the times, frankly, that we learned of the death of Justice Ginsburg and then within minutes there was the political posturing over how her seat would be filled, and I don't think you want to let the moment pass without acknowledging what a towering -- whether you agree with her or not, she was a towering figure in the realm of law and justice.

DAVID BOIES, REPRESENTED AL GORE IN THE 2000 SUPREME COURT DECISION: She was an historic lawyer, an historic justice. Her role in the advancement of rights, gender rights, sexual orientation rights, rights for minorities, is outstanding. It's sometimes easy, though, to focus on her role only as a justice and a lawyer. She was also an extraordinary person.

She was warm, she had a great sense of humor, and she had the capacity to deal with people, even ideological enemies, opponents like Justice Scalia, on very friendly terms. She represented a time in our country where people could have passionate disagreements on policy issues but nevertheless listen to the other side, work with the other side, become friends with the other side.

So I think one of the lessons that we ought to take from her is not only her tremendous accomplishments and commitment to fairness and equality and justice, but also the kind of person she was and the kind of person that I think we as a country need to be.

CAMEROTA: I'm so glad you brought that up, because we do have Justice Scalia's son coming up this hour, and he has all of these personal anecdotes to share with us about their really special relationship. They were such good friends, and they were funny. They shared opera, so we'll hear more about that coming up. So thank you for that.

[08:10:00]

But Jeffrey, in terms of -- so there's the epic political battle that we're already engaged in, and then there's the upshot of what this means for people's lives, and that's something that Joe Biden has been bringing up, which is that the Affordable Care Act is on the docket for November, and this decision, whether the seat is filled or not, it will be Obamacare will be affected in November by all of this, as will abortion, as will so many things in this country. This will affect real people's lives.

TOOBIN: And it won't just affect real people's lives for the immediate future. It's going to be decades. And we're talking about issues like will there be any regulation of campaign finance in America, or will campaigns essentially be deregulated as was suggested in the Citizens United decision?

Will Affirmative Action remain an option for universities and employers in America? Will the federal government be able to regulate pollution and climate change in the United States? All of these issues wind up before the Supreme Court, and this justice will address them for the next three or four decades.

BERMAN: Obamacare, though, right away, to be clear, Obamacare is on the calendar for immediately after the election, so that is something -- go ahead, Jeffrey.

TOOBIN: And remember, the issue in that case, there's several issues, but one very distinct possibility is that the entire statute will be thrown out. So that means no protection for preexisting conditions, no lifetime caps -- a return to lifetime caps on benefits, no keeping your kids on your insurance until they're 25. All of that goes out the window if this case goes the way Amy Coney Barrett has said it should go, which is get rid of Obamacare.

BERMAN: So David Boies, and this is why, by the way, Joe Biden is leaning into it politically right now. This is how Joe Biden is framing this issue going forward. David, how else do you think Democrats should handle this now? They don't have the power in the Senate. They don't control the calendar in any way. So what can and should they do, do you think?

BOIES: I think one of the things they have to do is they have to try to work with the very, very few Republican moderates who are already speaking about the responsibilities here of the Senate. It would be a disgrace after the experience of Merrick Garland, after denying Merrick Garland a vote for over 200 days, they would try to jam through another Supreme Court nomination between now and the election. That level of hypocrisy is something that I think the American people will reject.

And I think the Democrats in the Senate have to be making the case to their colleagues that the Senate has a responsibility here to act not simply in partisanship, but in what is in the interests in the country and the interests of the institution of the Senate and the Supreme Court. And if they crossed this line, if they continue to politicize the Supreme Court as they have, then the Democrats are going to have to, once they regain power, they are going to have to address this, and probably address it in a way that people would prefer not to, because what we want to do is we want to have a Supreme Court that is above partisan politics.

And over the last four years, beginning with the denial of a vote for Merrick Garland, and you heard what all the Republicans said about how you never want to do this in the last year of a presidential campaign, but we're now almost in the last month of a presidential campaign.

So I think that if they now flip-flop on that issue, I think that is going to not only take us down a road of diminishing the Senate, diminishing the Supreme Court, but it will take us down a road that requires to rebalance the Supreme Court once the Democrats regain control of Congress. And the Republicans, of course, have now eliminated essentially the filibuster. So the Republicans have taken the step of taking us down to majoritarian rule without any limitations on that. So I think they are taking us down a road that they are going to rue.

CAMEROTA: Well, it's interesting that you say all of that, because, Jeffrey, Chuck Schumer has telegraphed as much. He's basically saying if Democrats win the Senate, if Democrats win the White House, Katy bar the door. They're going to do -- go ahead.

TOOBIN: He sort of said that. He said nothing off the table. Democrats are great about talking big, but we'll see if he has -- if he and the other Democrats have the guts to do anything if they retake control of the Senate.

[08:15:02]

Will they really add the two seats on the Supreme Court?

CAMEROTA: Why wouldn't they? Why wouldn't they? I mean, if they are in control, why wouldn't they?

TOOBIN: Because they are weak and they are wimps and they're afraid, and I think -- you know, the Democrats -- look, we think about Bush v. Gore, and which David argued.

In 2016, Al Gore said, no street protests. This is just a legal process, while David saw in Tallahassee and in Washington the Republican forces massing against them, literally on the streets.

I mean, there is a difference to how Democrats and Republicans go about these fights, and we'll see if Democrats learn anything from Republicans here. I mean, yes, it's interesting that Chuck Schumer has said nothing is off the table, but that's not a commitment to do anything.

BERMAN: We have debate rules here, David, we have to give you 20 seconds to weigh in on that.

BOIES: I think Jeffrey is right, Democrats have been extremely cautious, but I think that this is a step that can push things over the edge. I don't think the Democrats, I wouldn't call them weak, I would call them cautious, but I think that this is a step over the line. They have taken the Supreme Court down this road of politicization and

the only way to rebalance it, you cannot turn the Supreme Court over to the radical right without fighting back.

BERMAN: David Boies, Jeffrey Toobin, we appreciate the discussion. Thank you very much.

And Jeffrey, we'll forward all the tweets and the text messages from Democrats around the country to your account, so thank you.

TOOBIN: Send them my way, Berman.

BERMAN: All right, breaking news, uncertainty over the future of the Supreme Court and the worsening coronavirus pandemic is sending U.S. stock futures plummeting ahead of the -- ooh, look at that. Dow futures down two percent.

CNN chief business correspondent, Christine Romans, what is going on?

CHRISTINE ROMANS, CNN BUSINESS CHIEF BUSINESS CORRESPONDENT: Reality check here, John. Fears of a second wave of the virus and a Congress consumed by political drama, after three weeks of stock market losses, a big tumble this morning.

The feeling, john, is any chance at all of a fourth pandemic relief fund has vanished. Supreme Court politics will consume all the oxygen in D.C. Now, most assumptions on a recovery in the economy have baked in an expectation for another 1.5 to $2 trillion in support that has not come. More than four months ago, the House passed $3.5 trillion in new funding, remember jobless benefits and direct stimulus checks, hazard pay, school funding and state and local funding, but moving from there has been a mess.

Second, the economic recovery is fragile and it is entering a dangerous, new phase. Fall and winter with the new flu season and John, a complete lack of a national strategy to contain this virus, 200,000 dead in the U.S. and now in Europe, a resurgence of the virus in the U.K. and on the continent, that has many worried that more lockdowns are needed there.

Stocks overseas down sharply as well. Stocks around the world also tumbling, bank stocks on a report that major banks moved suspicious money around the world for two decades, just a lot going on to start this week, three weeks of losses, looks like spilling into the fourth, the virus rules the day here, John. It's not under control and now with drama on Capitol Hill, it doesn't look like stimulus checks are coming any time soon.

BERMAN: The virus rules the day. Christine Romans, I think investors have seen the graph, the seven-day moving average of new coronavirus cases has turned and it started to rise again. Christine Romans, thank you very much.

We're going to talk much more about that rise in cases, why? Why are cases now rising? Where are they rising? What does it mean going forward? That's next. (COMMERCIAL BREAK)

[08:22:21]

BERMAN: All right, new this morning, the United States has turned the wrong corner in terms of coronavirus. Look at this map, 28 states are now seeing increases of coronavirus in the last week, red or orange, those states there.

Some, the ones in red seeing increases of more than 50 percent in the last week and then there's this graph, which is equally alarming and at the end there, if you go to the very end of the graph you can see the seven-day moving average of new cases has now started to trend upwards after trending downwards since the beginning of July, it is now starting to move upwards. It is above 40,000 new cases a day. That's a problem.

And this is all happening as the United States is hours or a day or two from passing 200,000 deaths. Joining us now is CNN medical analyst, Dr. Leana Wen. She is the former Baltimore City Health Commissioner and an emergency room physician.

Dr. Wen, when we see that map of new cases, when we see the trend line beginning to move up again as we head into the fall, why is that of such concern?

DR. LEANA WEN, CNN MEDICAL ANALYST: Yes. It's extremely worrisome, John, and the reason is that we should be heading into the fall and winter when people are going to be indoors, when we could potentially have the convergence of flu and COVID-19. We want that baseline to be as low as possible.

But as you described, we are trending in the wrong direction. Not only are we seeing the number of cases in new infections increase, we're also seeing test positivity on the upswing as well, which means two things. It means that we do have many more new infections, but it also means that we're not testing nearly enough, and so every one case that's detected could be the canary in the coal mine.

There could be many other cases that we are not yet picking up on. And all of this is against a backdrop of removing restrictions further in many of these states that actually are undergoing upswings and of course, students are coming back to school in universities, in K-12 institutions. There's much more mobility and I'm afraid quarantine fatigue is setting in.

And so I really worry about the trend and I hope that everyone will keep in mind just how contagious this virus is, and that we have to continue to be on guard and do everything we can including masks, social distancing, all of these measures that we've been talking about, all along.

CAMEROTA: Right, now is no time to let our guard down. We have to redouble our efforts, but of course, you know, Americans have short attention spans. We have coronavirus fatigue, but what you also point out is that our baseline right now is 40,000 new cases a day. That's our baseline. What was our baseline supposed to be ideally going into the fall and winter?

[08:25:10]

WEN: Ideally it's zero, or close to zero as possible. I mean, we saw what happened after Memorial Day when our baseline was 20,000 new infections a day, which is already a lot, but if only half as much as we have now and then we saw a very rapid surge, including in the south and the Sunbelt, across the west and we went up to 60,000 or 70,000 new infections every day, and many more deaths.

And so it's a very concerning place that we're at, but I would encourage everyone to do whatever it is that we can now, which includes getting a flu shot, because there's no vaccine against COVID- 19 yet, but there is against the flu, so get that before the end of October, and in the meantime, try to enjoy the outdoors, be outdoors as much as possible. Of course wear masks and keep up social distancing as well.

BERMAN: Okay, Dr. Fauci says 10,000 cases a day would be a fair target heading into the fall. We're obviously moving further and further away from that each day and we are getting oh so very close, Dr. Wen, to 200,000. Two hundred thousand Americans killed in six months from coronavirus.

Just reflect on that for a moment, as a physician, as someone whose job it is to save lives, what it feels like to be here this morning looking at that staggering number.

WEN: Well, I don't just see the number. I see all the individuals that I've treated who have died or have had loved ones die, who were only able to say goodbye to their loved ones via FaceTime or all of those who survived but are living with the long-term consequences of COVID- 19, many which we don't yet fully know, neurological consequences, damage to their heart and to their kidneys.

These long haul symptoms that we don't again fully understand exactly what that's going to mean, including to young people who might be living with this for decades and so I think what's most tragic about all of this is that so much was preventable and still is preventable moving forward.

We are facing potentially 200,000 more deaths by the end of the year, but that number isn't inevitable. That trajectory doesn't have to be this way. There are things that we know by now really work, and I hope that everyone will consider that it's our civic duty, it's our responsibility to protect one another, and by protecting ourselves and our loved ones, actually we are protecting everyone and helping to lower the death rate in preventing so much more suffering and death that otherwise would come.

CAMEROTA: Dr. Leana Wen, thank you for reminding us of all of that. We really appreciate you being on.

WEN: Thank you.

CAMEROTA: Ruth Bader Ginsburg had a famously close friendship with Justice Antonin Scalia, despite their very different world views.

Up next, Scalia's son on how that famous friendship worked.

(COMMERCIAL BREAK)

[08:30:00]