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THE LEAD WITH JAKE TAPPER

Will Trump Supreme Court Nominee End Obamacare?; Trump Campaigns in Florida as Coronavirus Pandemic; Investigation Launched Into Unofficial Drop Boxes for Mail-In Ballots in California. Aired 4:30-5p ET

Aired October 12, 2020 - 16:30   ET

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


[16:32:06]

JAKE TAPPER, CNN HOST: You are looking at live pictures of what the nation's top infectious diseases expert, Dr. Anthony Fauci, just told me was asking for trouble, a crowd gathering for a Trump rally in Florida tonight, very few masks visible, very little social distancing.

Joe Biden will also be in Florida tomorrow, as his campaign zeros in on four states President Trump won in 2016. Biden is in Ohio today, while his wife tries to pick up Southern support in Georgia and Texas.

CNN'S Jessica Dean is in Cincinnati, Ohio, where Biden will speak shortly.

Jessica, the map really shows where the Biden campaign believes their time will be well spent 22 days out from this election, though these states, we have to say, they're reaches.

JESSICA DEAN, CNN CORRESPONDENT: Yes, they really are, Jake.

And it certainly tells us, looking at that, gives us a little peer into what the Biden campaign is looking at and thinking about right now.

Look, Ohio is one of 17 what they call priority states. But if you have been following along over the last several months, Ohio hasn't gotten nearly the attention and resources from the Biden campaign that other higher priority states have, so places like Michigan, Wisconsin, Pennsylvania, all places they need to win.

The thing about Ohio and to a certain extent Florida as well, where Joe Biden's headed tomorrow, is, he doesn't have to win Ohio or Florida to win the election, to get to 270. But if he wins one or certainly if he wins both of those, it makes President Trump's path to reelection incredibly, incredibly difficult.

The Biden campaign sending Joe Biden to two stops here in Ohio today. Earlier, he was in Toledo, really selling his economic message, that Park Avenue vs. Scranton messaging that we have heard, leaning into union jobs, American manufacturing, terms and themes that we have heard from him all across these kind of white-working class cities where he's been talking to union workers, Jake.

And if you zoom out, what this really says is, the Joe Biden campaign right now is playing offense in these states -- Jake.

TAPPER: All right, Jessica Dean in Cincinnati, Ohio, thanks so much.

Despite what the polls show, President Trump says, just like in 2016, he's actually going to win this election. That's what he's telling supporters.

(BEGIN VIDEO CLIP)

KATE BEDINGFIELD, BIDEN DEPUTY CAMPAIGN MANAGER: His point is that the people have an opportunity to weigh in on this constitutional process through their vote.

(END VIDEO CLIP)

TAPPER: That is obviously the wrong clip.

CNN's Harry Enten analyzes poll numbers.

Harry, we are 22 days out from the election, and President Trump is not doing well in the national average of reputable polls. Give us an idea of where you think we are.

HARRY ENTEN, CNN POLITICAL SENIOR WRITER AND ANALYST: Yes, I mean, look, here's the key nugget, which is, if you compare where we are right now, compared to four years ago, what you see is that Joe Biden holds a double-digit advantage in the national polls.

Hillary Clinton was up at this point, the national polls, but that lead was only six points, and, more than that, Joe Biden above 50 percent.

[16:35:07]

That said, I should warn the viewers here that this election is not over yet, right? If you look back over time, incumbents who were in trouble at this particular point, whether it be a Barack Obama in 2012, whether it be George H.W. Bush in 1992, or whether it be Harry Truman in 1948, what you see in those elections is that, in fact, the incumbent sort of closed right at the very end.

So, look, Trump is down 11. He's in a lot of trouble. But this election isn't quite over yet.

TAPPER: Now, of course, it's not a national election. It's state by state. You have been looking at these new polls from two states Trump won in 2016, Michigan and Wisconsin.

These are new polls from today. What do they show?

ENTEN: Yes, I mean, they show that Joe Biden has a clear advantage. In Michigan, his lead is eight points, the "New York Times"/Siena College poll consistently showing him ahead there. And, in Wisconsin, another key state that Donald Trump won in 2016,

what do you see there? You see that Joe Biden's up by 10 points and over 50 percent. So, to two key Midwestern states, Joe Biden leading that Trump won four years ago.

TAPPER: Now, a lot of folks out there remember 2016 state polls that were wrong. I'm not talking about the national polls that were largely right, because Hillary Clinton won the popular vote, but state polls, Michigan, Wisconsin, Pennsylvania, that said that Trump was going to lose and Hillary Clinton was going to win.

Why would you have faith in these state polls?

ENTEN: Here's the reason why.

Look, let's just take a look at the electoral map and essentially say we have the same errors in each of the states that we had four years ago. What you would see is that Joe Biden was still well ahead with 319 electoral votes.

So, even if we have those errors, Biden's ahead, although I should note, there's no necessary reason that we think those errors should apply. But, even if they did, Biden is still ahead in the Electoral College, which, of course, is what ultimately counts.

TAPPER: Have polling companies gone back and recalibrated and figured out why they got it wrong before, why there were so many Trump voters that they didn't see there last time, and just to make sure that they see them this time?

ENTEN: Yes, I mean, look, one key thing that a lot of pollsters are doing is, they are weighting by education, right? College -- there were too many college-educated voters in the polls last time around. Those favored Clinton vs. those without a college degree favored Trump.

They're weighting those up now to the proper levels. And more than that, they're going to pull until the very last minute. Last time, I think there were a lot of times where the pollsters didn't exactly get it.

One other nugget I should just point out for you, Jake, though, is that one key thing why I really do think the polls at this point are looking largely accurate is, Joe Biden is just much more popular than Hillary Clinton was at this point.

And look, voters are not just coming out to vote against Trump. They actually do like Joe Biden.

TAPPER: He's -- his favorability rating is above 50 percent there, and Hillary Clinton's favorability rating -- unfavorability rating, I should say, was above 50 percent four years ago, all sorts of reasons of that -- for that, of course. We don't need to go into those now.

The pandemic, of course, is a big factor in this race. How much do you see that as driving these negative polls for President Trump? ENTEN: I mean, look, the fact is, if you're going outside, like me,

and you're going to pick up food at a takeout place, you got to put on a mask, right?

That's very unusual. And the fact is that voters don't like the way that Trump is handling the pandemic. They think he's acting irresponsibly, and that is, in fact, driving it largely.

But I will point out, of course, that, because we have a pandemic, it's unusual times. So I wouldn't be shocked if there's some last- minute poll moment either for or against Trump that history may not necessarily lead us to believe is there.

TAPPER: Do you think that Trump having these rallies that are empirically reckless, no masks required, no distancing, in states where the infection rate are going up -- this is some pictures right here from Sanford, Florida, where, obviously, President Trump is going to head, and that does not look like a safe place to be. It's a crowd and they're not wearing masks.

Obviously, President Trump has his base. Do you think these rallies could end up hurting him more than helping him because of how many older voters and female voters think he is completely irresponsible?

ENTEN: This is some of the dumbest politics I have ever seen, to be perfectly honest with you, Jake.

I study the polls day in, day out. I look at past campaigns. I just don't know what the heck he's doing, besides an ego trip. You pointed it out earlier. Seniors, women, these are voters who are moving heavily against Trump, compared to four years ago. And the actions that he is taking, the polls suggest to us, are very much hurting him in the polls.

TAPPER: Yes, it's not like that arena full of red hats can vote more than once. They can't.

ENTEN: That's exactly right.

TAPPER: Whether you're enthusiastic or unenthusiastic, your vote counts the same.

Harry Enten, thank you so much.

ENTEN: Thank you.

(CROSSTALK)

TAPPER: The Supreme Court nominee's hearings overshadowed by a COVID- positive senator not wearing a mask.

That's next.

(COMMERCIAL BREAK)

[16:44:19] TAPPER: In our politics lead today, the first day of hearings just wrapped up for Judge Amy Coney Barrett's nomination to the U.S. Supreme Court.

Democrats argued that Judge Barrett threatens the future of the Affordable Care Act, among other things, while Republicans defended her credentials.

But, as CNN's Jessica Schneider reports for us now, today was just a small preview of how contentious these hearings are likely to get, when Judge Barrett begins to take questions from senators tomorrow.

(BEGIN VIDEOTAPE)

SEN. LINDSEY GRAHAM (R), SOUTH CAROLINA: The floor is yours, Judge.

JESSICA SCHNEIDER, CNN JUSTICE CORRESPONDENT (voice-over): Amy Coney Barrett starting off her confirmation hearing this afternoon spelling out her judicial philosophy.

AMY CONEY BARRETT, SUPREME COURT JUSTICE NOMINEE: Courts are not designed to solve every problem or right every wrong in our public life. The public should not expect courts to do so, and courts should not try.

[16:45:04]

SCHNEIDER (voice-over): The 48-year-old was a clerk for late conservative Justice Antonin Scalia and while she would step into the spot of Ruth Bader Ginsburg, it's Scalia's seat she will really fill.

BARRETT: It was the content of Justice Scalia's reasoning that shaped me. His judicial philosophy was straightforward -- a judge must apply the law as it is written, not as she wishes it were.

SCHNEIDER: While six of Barrett's seven children sat behind her, the political posturing played out for hours in front of her. Democrats aired their disdain that Republicans are rushing to fill this Supreme Court seat before the election, and warned Americans that their access to health care is at stake when the court hears arguments on the Affordable Care Act November 10th.

SEN. DIANNE FEINSTEIN (D-CA): The president has promised to appoint justices who will vote to dismantle that law.

SCHNEIDER: Republicans preemptively made Barrett's Catholic religion the focus, calling out any Democrat who makes Barrett's faith an issue.

SEN. JOSH HAWLEY (R-MO): When you tell somebody that they're too Catholic to be on the bench, when you tell them they're going to be a Catholic judge, not an American judge, that's bigotry. The pattern and practice of bigotry from members of this committee must stop.

SCHNEIDER: None of the Democrats focused on her faith instead honing on health care as the COVID crisis looms. Several senators appeared remotely refusing to attend in person around other senators who had the virus like Utah Republican Mike Lee.

SEN. KAMALA HARRIS (D-CA): This committee has ignored common sense requests to keep people safe, including not requiring testing for all members despite a coronavirus outbreak among senators of this very committee.

SEN. MIKE LEE (R-UT): Thank you, Mr. Chairman.

SCHNEIDER: Lee was there in person without a mask despite having tested positive shortly after the White House event announcing Barrett's nomination about two weeks ago. Lee released a letter today from the Senate physician today clearing him to attend in person.

LEE: The Supreme Court of the United States sits atop something that is the envy of the entire world.

SCHNEIDER: Barrett referenced the political storm that has already been swirling around her.

BARRETT: It was not a position I sought out and thought carefully before accepting. The confirmation process and the work of serving on the court, if confirmed, requires sacrifices particularly from my family. I chose to accept the nomination because I believe deeply in the rule of law and the place of the Supreme Court and our nation.

(END VIDEOTAPE)

SCHNEIDER: And today's format kept things relatively tame, but it could a lot more fiery tomorrow and Wednesday when all members of the committee ask their questions. Democrats will stay focused on health care.

And, Jake, we know that was on the president's mind today. He tweeted twice before noon saying that Republicans have a better plan at a lower cost. But, of course, we still have yet to see any plan from the president on health care -- Jake.

TAPPER: All right. Jessica Schneider, thanks so much for that.

Joining me to discuss, CNN's chief legal analyst Jeffrey Toobin.

Jeffrey, did anything stand out for you in Judge Barrett's opening statement today?

JEFFREY TOOBIN, CNN CHIEF LEGAL ANALYST: Yes, her full-throated embrace of Justice Scalia and his approach to the Constitution. You know, Justice Scalia was a controversial figure and he had controversial views. He was against constitutional protection of same- sex marriage. He was -- and believed that Roe v. Wade was wrongly decided.

And there was no space between Justice Scalia and Judge Barrett today. And that's the kind of justice she's going to be. She wasn't pretending otherwise. The committee is -- shouldn't be under any misimpression about how she views the Constitution, because she views it just like Justice Scalia. TAPPER: Although she did say, and one of the things she said, that

she learned from the late Justice Antonin Scalia, for whom she clerked, is, quote, a judge must apply the law as it is written, not as she wishes it were. From looking at Judge Barrett's record and the docket coming up from the Supreme Court, do you think she's going to stick by that?

TOOBIN: I do think so, because, you know, what the code that she's speaking in is the code of originalism and textualism, which are the touchstones of Justice Scalia's approach to the Constitution. And under that approach, that means that unless the framers of the Constitution believe there was a right to a woman's right to choose abortion or protection of gay and lesbian people for -- you know, from discrimination, the Constitution shouldn't recognize that. That's what originalism and textualism mean in the real world. And that's the approach she plans to take.

TAPPER: Both parties made their cases today. Republicans say Judge Barrett is fully qualified to fill an opening they are entitled to fill. And the Democrats say that she's going to be the vote to eliminate the Affordable Care Act, possibly Roe v. Wade.

[16:50:03]

How contentious do you think the next few days are going to get?

TOOBIN: You know, I think the Democrats recognize that this is a losing battle. And so they are using this as an opportunity to campaign in the November election. You know, you heard two things over and over again from the Democrats. Hypocrisy, which was why did Merrick Garland get a vote when Justice Scalia died in February of an election year and health care.

There's going to be a huge health care case argued right after the election. And every single Democrat had a picture behind them of someone who was a beneficiary of the Affordable Care Act. They are trying to make this nomination a referendum on whether preexisting conditions will be protected.

I don't know if that's how it will ultimately turn out, but that's the message they are using and we'll see if the voters buy it.

TAPPER: No matter what kind of argument Democrats headache, I mean, her confirmation is virtually guaranteed at this point. We only know of two Republicans that have misgivings about her, Collins and Murkowski. You know, I'm still not sure that Collins is going to vote against her. Frankly, I would doubt it given the fact that Collins is up for reelection and needs Republicans to turn out for her.

So if the goal is just campaign issues, Affordable Care Act, Roe v. Wade, basically that's just a concession for Democrats. You're saying they know they're going to lose.

TOOBIN: I think that's right. I mean, the Democrats need four Republican votes. They have maybe two. And that's just not enough to defeat her. So, she looks like she's on the glide path to confirmation.

TAPPER: Elections have consequences.

Jeffrey Toobin, thank you so much. Appreciate it.

You can read more from Jeffrey in his great new book "True Crimes and Misdemeanors:" The Investigation of Donald Trump."

A new election issue, an unofficial and illegal drop box found in a very surprising place. That's next.

(COMMERCIAL BREAK)

[16:56:39]

TAPPER: In today's installment of our "Making It Count", pre-election series, a troubling start for Georgia's first day of early voting. Technical glitches led to long wait times to vote at a so-called super site in Atlanta.

In California, unofficial drop boxes for mail-in ballots have caused confusion and now an investigation and similar problems are popping up nationwide -- as CNN's Pamela Brown reports.

(BEGIN VIDEOTAPE)

PAMELA BROWN, CNN SENIOR WHITE HOUSE CORRESPONDENT (voice-over): Roughly 8 million Americans have already cast their ballots, some standing in line for hours.

JULIA VINEYARD, NEVADA VOTER: I thought maybe one hour at most. I would never have even came out to be honest if I knew it would be five hours.

BROWN: While others are putting them in drop boxes like these. But the seemingly simple process turned quite complicated throughout the country.

UNIDENTIFIED FEMALE: It's insane. I just -- I can't imagine you would think that would be acceptable.

BROWN: This California woman alerted local officials after finding an unofficial ballot drop box at a nearby church.

In a Facebook post, the church's pastor told followers that the church had a voting drop box, but it wasn't a legal one.

MATTHEW JUDGE, CALIFORNIA VOTER: It was up for like four days before I even saw it, before it started to kind of gain traction. So I'm really worried that someone put their ballot in there.

BROWN: In a sermon at the church, the pastor denied tampering with any ballots.

PASTOR JERRY COOK, FREEDOM'S WAY BAPTIST CHURCH: Obviously, we have a situation here with the ball becomes and folks are saying things that we're tampering, with things of that nature. Of course, we're not tampering with anything.

BROWN: Meanwhile, California's secretary of state tells CNN operating unofficial ballot drop boxes, especially those misrepresenting to be official drop boxes, is not just misleading to voters. It's a violation of state law.

The box has been removed. The Facebook post also gone. As a Los Angeles County Registrar's Office investigates.

UNIDENTIFIED FEMALE: It's an attack on democracy. It's not okay.

BROWN: In Pennsylvania, a Trump-appointed federal judge rejected an argument by the RNC and Trump campaign that drop boxes were unconstitutional.

While in Texas, a federal appeals court ruled in favor of Republican Governor Greg Abbott's directive for one location per county for ballot drop boxes, after a lower court reversed Abbott's decision last week.

And in Georgia, early voting started today at one location with a little hiccup, delays of an hour due to a technical glitch that caused voters cards to be rejected.

(END VIDEOTAPE)

BROWN: And in California, the D.A. is investigating now that several of these unofficial drop boxes have popped up in a few counties there.

Now, the Republican Party bought these drop boxes according to a spokesman, but that person would say how many or where they placed it.

But the GOP denies any wrongdoing, and, Jake, late this afternoon, the RNC gave me this statement, basically saying that these drop boxes, these unofficial drop boxes are to combat ballot harvesting by the Dems, they said, who are not going to let them have an artificial advantage of places where it is legal. But they stopped short saying they would support this practice elsewhere -- Jake.

TAPPER: All right. Pamela Brown, thank you so much.

Finally, today, we want to take some time to remember some of the nearly 215,000 Americans who have lost their lives to coronavirus. Today, we're going to remember Edward Konaha of Wisconsin, who died earlier this month. A proud Native American, member of the Menominee tribe.

He was a family man, a devoted papa to his six grandchildren. Konaha is remembered as a jokester who had a smile on his face. He was just 53 years old.

May his memory be a blessing. Our condolences to his family.

Our coverage on CNN continues right now.

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