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Confirmation Hearing for Judge Amy Coney Barrett; Infections Rising in 30+ States, 54,000 Cases on Saturday Alone; Kudlow on Stimulus, Mnuchin May Go Higher Than $2.2 Trillion Proposal. Aired 10- 10:30a ET

Aired October 12, 2020 - 10:00   ET




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SEN. LINDSEY GRAHAM (R-SC): What will happen is that my Democratic colleagues will say, this has never been done, and they're right in this regard. Nobody, I think, has ever been confirmed in an election year past July.

The bottom line is Justice Ginsburg, when asked about this several years ago, said a president serves four years, not three. There's nothing unconstitutional about this process. This is a vacancy that has occurred through a tragic loss of a great woman.

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

And when he appointed Judge Barrett to fill Justice Ginsburg's seat, the president said that eliminating the Affordable Care Act would be a, quote, big one for the USA.

Simply, put, I believe we should not be moving forward on this nomination, not election until the election has ended and the next president has taken office.


HARLOW: We have team coverage this morning. Let's kick it off with our Manu Raju. He joins us on Capitol Hill.

It's interesting. We don't hear from her, Manu, until this afternoon.

MANU RAJU, CNN SENIOR CONGRESSIONAL CORRESPONDENT: Yes, that's right. This is the typical how confirmation hearings work for Supreme Court nominees. The senators all get their chance, ten minutes a piece, to go back and forth, the Republican and Democratic side, making their arguments. And, finally, in the afternoon, we get to hear from the nominee herself. She will make that opening statement this afternoon. And then the questioning will begin. That will happen tomorrow, that will happen Wednesday. And then on Thursday, we'll hear from outside witnesses before Republicans set the stage for this committee vote. The committee vote ultimately will happen on October 22nd. And a sign the Republicans are moving ahead to try to get her confirmed before the end of the month, which would make about a month-long confirmation process, much faster than a typical confirmation process, which takes two or three months.

And a key sign for them this morning, Republican Senator Mike Lee, who had tested positive for the coronavirus about ten days ago, said he's been cleared by his doctor, he's actually in the committee room right now, working. We expect also the other Republican senator who had tested positive about ten days, Thom Tillis of North Carolina, who sits on this committee, to also return at least later this week when they actually need to have a quorum of senators presents to move forward on a voting process. So that is a positive side for Republicans to get her through at the moment.

The question, ultimately, will be, will four Republicans break ranks to prevent her from going forward. There is no indication that that's going to happen. And we're hearing those arguments being made pretty clearly on both sides. Democrats saying it's going much too fast. This needs to be considered more deliberately, concerned about her dismantling of the Affordable Care Act if she gets on the bench.

Republicans are saying she is well qualified and arguing, in their view, there is no evidence that they believe that she would ultimately strike down the Affordable Care Act. But we'll see what she ultimately has to say about her past views and writings on that topic. But she won't get to answer that until tomorrow, Poppy.

HARLOW: Well, it's a good point. Important point, Manu, that I want to pick up with you, Jeffrey, we don't know, because she's never as the judge ruled on this.

JEFFREY TOOBIN, CNN CHIEF LEGAL ANALYST: And you know what? After tomorrow, we won't know either, because she won't answer the question. That's how these hearings go. I mean, ever since Robert Bork in 1987 actually answered questions about his judicial philosophy and really engaged with the senators --

HARLOW: And didn't get the job.

TOOBIN: -- and got rejected in part because of his candor, all nominees of both parties have been extremely cautious in answering questions about the issues that they will rule on. So I anticipate there will be a lot of questions about the Affordable Care Act. I suspect there will be some carefully worded questions about the future of Roe v. Wade.

The Democrats are -- the Republicans are playing the refs. They are trying to make out, like if you ask any questions about the right to abortion, you're attacking the nominee's Catholic faith. That is clearly not the case. But it does appear that the Democrats are quite intimidated on this subject and are going to try to steer away from it and concentrate their fire on the Affordable Care Act.

But I anticipate that Judge Barrett will insist that she has not made up her mind and she will not give her views on pending cases. And we'll be left to judge her based on her prior writings and prior opinions.

HARLOW: Of which there are not a lot because she just was named -- just appointed to the 7th Circuit in 2017.

Abby, in terms of Democrats, it was an important point that Lindsey Graham made at the beginning that, by the way, she's filling the seat of the late Justice Ruth Bader Ginsburg, who, by the way, was confirmed in '93, '96.


It was '96, that's right, that she was confirmed.

So, I mean, I know that was a different time but like nothing close to that is going to happen here. So what is Democrats' main objective since they can't stop it?

ABBY PHILLIP, CNN POLITICAL CORRESPONDENT: Yes, nothing close to that is going to happen this week or next week or really maybe ever again. And I think the Democrats are coming into this knowing in some ways there's an inevitability to all of this.

Whether the inevitability is that she is confirmed in the coming days or in the coming weeks that despite what Dianne Feinstein said, which is that she believes that this should be left until after the inauguration of the next president or the re-inauguration of current president, they know that that is not going to happen.

So you're just going to see them really harping on the hypocrisy of this in their eyes but knowing inevitably she will be confirmed and then trying to kind of extract as much of her judicial philosophy, as per your conversation with Jeffrey, as they possibly can.

What is interesting about the moment that we're in is because President Trump, in the last election and he continued this practice as president, released these lists of Supreme Court justices. Republicans on the committee actually don't really need her to say anything about her judicial philosophy or about how she might approach some of these cases that they care a lot about, especially Roe v. Wade because they already know. She has already been vetted, she has already cleared through their interest groups as being someone who is on, in their view, the right side of that issue.

So Republicans don't want to hear what she stands for. Democrats do, on the other hand, and I think you will see them try to extract as much as they can on those issues.

HARLOW: Let's listen, everyone, to what she said during her confirmation hearing back in 2017 for the 7th Circuit about -- about her personal beliefs versus how she judges and how she writes opinions. Listen to this. (BEGIN VIDEO CLIP)

JUDGE AMY CONEY BARRETT, SUPREME COURT NOMINEE: It's never appropriate for a judge to impose that judge's personal convictions, whether they derive from faith or anywhere else on the law.


HARLOW: Jeffrey Toobin, it's never appropriate, and I think it's interesting how she talks about how she writes her opinions. She says she tries to put herself in the feet of the people she's ruling against. The question is, you know, practical implications of that.

TOOBIN: Well, you know, that is true. And I think it's also important to point out that, you know, that her faith is not the issue here. Two of the most liberal justices in the history of the court, William Brennan and Sonia Sotomayor are both Catholic. Justice Scalia, a very conservative justice, was also Catholic. I mean, the religion itself is not significant, I think. What matters is her positions on issues.

And what is striking about Judge Barrett is that, as a private citizen before she was on the bench, she was an outspoken opponent of abortion rights. And she was involved in speaking to groups and signing advertisements and someone who -- this was a political passion of hers.

And the idea that that is somehow entirely separate from her judicial philosophy and how she will rule as a judge suggests to me that that's just unrealistic. I mean, there is no precise barrier between political views and judicial views.

And the other point that is just worth emphasizing is that President Trump said, repeatedly, he will appoint justices to the Supreme Court who will vote to overturn Roe versus Wade. And what I think he meant by that he will appoint justices to the Supreme Court who will vote overturn Roe versus Wade. He's got two, he's got Kavanaugh, he's got Gorsuch, and it looks like he'll get a third here with Judge Barrett.

HARLOW: Even though, I think, he said the other week, we don't know where she -- that he doesn't know where she stands.

TOOBIN: But that's how it always works. It's like that's what they want. And then once they're nominated, it becomes some big mystery about how they'll vote on Roe v. Wade. I mean, give me a break.

PHILLIP: And, Poppy, it's not just on this issue for President Trump. He's put Amy Coney Barrett in a really tough spot on Roe v. Wade and also on the Affordable Care Act, because he said in both cases he wants justices that will rule against the Affordable Care Act, against Roe v. Wade, and now, she's going to have to answer for that.

HARLOW: Thank you all. We've got leave it there. We appreciate it. We're keeping a close eye monitoring this hearing, of course, as it continues for the rest of the day, and for the next few days.

[10:10:01] Right now, more than 30 states across the country are seeing coronavirus cases rise. Several states are seeing record hospitalizations, including the state of North Dakota, where there are only apparently 16 ICU beds left in the entire state. We'll take you there.

And amid all of this, the president choosing to gather crowds and hold a campaign rally tonight.



HARLOW: Welcome back. Well, this morning, 31 states across the country are seeing a surge in COVID-19 cases. This is a key model warns of a brutal winter ahead, predicting the number of American deaths will almost double to nearly 400,000 by February.

Let's go to my colleague, Alexandra Fields, she joins us for more on these disturbing numbers. Good morning, Alex.

ALEXANDRA FIELDS, CNN CORRESPONDENT: Hey there, Poppy. All over the country, you've got officials trying to get a handle on this. Even in New York where the positivity rate remains much lower than it does in many states across the city, you've got the city that is grappling with a number of hot spots. We're now learning that over the weekend or since Friday, the city has handed out some $150,000 worth of summons for violations related to the restrictions. Fines for mass gatherings can be as much as $15,000 a day. So you can see how they get to that number.

Nationwide, you've got 31 states now seeing increases in cases. Nine states setting records for hospitalizations in just the last few days. The west and Midwest still hit particularly hard. The state of Montana recording 5,000 new cases just in the last 11 days, compare that to the fact that it took five months to record their first 5,000 cases.

And, once again, Poppy, all eyes are on Florida. The state reported more than 5,000 cases just yesterday, that as alarm bells are ringing from public health officials who are seeing the numbers climb in that state after the governor quickly got rid of virtually all COVID- related restrictions. Poppy?

HARLOW: Not to mention a state where both the presidential candidates are going to be today. Thanks, Alex.

FIELDS: All eyes on Florida.

HARLOW: I appreciate the reporting, for sure, on all those fronts.

Let's turn now to the president, who is set to hold four rallies over the next four days. His doctors cleared him to return to his public schedule but, notably, they have not answered questions about his coronavirus infection, not being on T.V., taking questions from the media in about a week.

John Harwood is at the White House. Good morning, John.

Also, have we received an official negative test on the president from the White House?

JOHN HARWOOD, CNN WHITE HOUSE CORRESPONDENT: We have not. The president has said on Fox that he was totally -- he is totally negative for the virus. We haven't seen a test. It's pretty remarkable when you think about it, Poppy. Ten days after the first onset of symptoms and the president's diagnosis of a positive COVID case, one week after the president has been released from Walter Reed, he is going out on the campaign trail again.

Now, by the CDC guidelines for mild or moderate cases, he has passed the ten-day point to be no longer infectious. But if he had a severe case that they reserve a longer window when you might be infectious and the president, of course, has gotten some medications that are only given to people with severe cases. Not sure whether that's simply because he was president or because his case was that severe.

Nevertheless, he is going to Florida tonight, Iowa and Pennsylvania later in the week. And this is something that whether or not it helps him politically, and we've seen that the has been moving a little bit backwards in the polls over the last couple weeks, he's down ten points nationally by solid margins in a decisive number of battleground states. He needs the affirmations of these rallies that he's going to get it. He got it over the weekend at an event at the White House and now he's taking the show on the road.

HARLOW: He is. John Harwood at the White House, thanks very much.

Let's talk about all of this. Dr. Joshua Sharfstein is with me, Vice Dean at Johns Hopkins School Bloomberg School of Public Health, and former Principal Deputy Commissioner at the FDA. Good morning, Doctor. Thanks for being here.

Is it safe for everyone else for the president to be on the campaign trail holding four rallies in the next four days?

DR. JOSHUA SHARFSTEIN, FORMER PRINCIPAL DEPUTY COMMISSIONER, FDA: Well, the truth is we don't know. We really have so little information from the White House and, of course, the president's doctor, I think, has lost his credibility. So we really don't know. It would mean so much to have a truly independent physician just explaining what's going on. It's possible that he is not contagious, but we just don't know.

HARLOW: Okay. The treatment issue, so the president got a whole lot of some experimental treatments at the hospital that are not available to most Americans. And then over the weekend, Doctor, he claimed on Twitter that he is now immune. Twitter actually flagged that tweet with a warning, with a public health warning, because we don't know, right, the science doesn't tell us if people are immune or not. What is your take on that? And is it giving false hope to the millions of Americans who have contracted this?

SHARFSTEIN: This is such a threat right now to so many people. There are 44,000 cases diagnosed today and the numbers are going up. They're not going up because there's more testing available. It's about the same amount of testing available and a lot more people who are sick. And the way people need to protect themselves is wearing a mask, washing their hands, keeping their distance.


And if they believe that there's some miracle cure out there and they don't have to wear a mask or wash their hands or keep their distance, there's a good chance in many parts of the country that they could get sick and they could even die because there is no miracle cure. This requires vigilance, not false hope.

HARLOW: Okay. We are all hoping for a very effective and broadly widely administered vaccine to come. But you have warned in the past few days that in years' past, a say-so warning from the FDA, this works, this is safe, is enough. But now that's not enough for people, and that's not the environment that we're in today. So what do you think that's actually going to result in, in terms of enough people taking this vaccine to have enough vaccination for us to get back to how life was pre-pandemic?

SHARFSTEIN: Well, you're making a great point. It's not a vaccine that saves lives. It's a vaccination that saves lives. People have to accept vaccination in order to get the benefits.

And what I was saying was that an FDA decision alone these days is probably not going to be enough, especially with the president making all kinds of allegations about FDA. But the FDA could run a process that will give people more confidence. And what would that look like? Sharing information publicly, convening an advisory committee and hearing from independent experts that the data is strong enough, and then explaining things to the public, including, here is what the studies showed, here is why we think it's effective, here is all the safety data, and here is why we think it's safe. And, in fact, that's why we're comfortable with our families getting this vaccine.

And I think if they communicate that well, they share data and they have independent experts vouching for them, it's different than just the FDA going, it's good to go.

HARLOW: Yes. Well, very good news this weekend that former New Jersey Governor Chris Christie is out of the hospital after a week. He contracted COVID and he checked himself in as a precautionary measure. As we understand it from our reporting, he was treated with remdesivir.

What should every American take away from that? I mean, should most Americans in his age group with some of what he's been facing, should they all be going to the hospital and checking in for precautionary measures?

SHARFSTEIN: Well, early on, Governor Christie was one of the people, and we're hearing from more of them now who say, it's just too much to be worrying about the masks and the hand washing, like a lot of people are going to have to get sick. And some are going to die, and that's how we're going to get herd immunity.

And the truth is the herd immunity strategy means that a lot of people get sick and die, and it's fine for some people if it's other people getting sick and dying. But then when it's them getting sick and facing death, maybe people will rethink that strategy because it is a cruel and unnecessary approach. It's giving up against the virus.

So I'm hopeful that people stay vigilant instead of saying, well, what we really need is for other people to get sick so we build up population immunity.

HARLOW: Yes, exactly. Let's hope people are heeding your words and your warning this morning. Dr. Joshua Sharfstein, thank you.

SHARFSTEIN: Thanks for having me.

HARLOW: Of course.

Well, Dr. Fauci, the nation's top infectious disease doctor, now tells CNN that the words used from him in a Trump campaign ad were used without his permission and deliberately taken out of context. We'll explain, next.



HARLOW: Welcome back.

So, coronavirus stimulus talks hit another major roadblock this weekend when lawmakers in both parties, some in both parties, seemed to just reject the latest $1.8 trillion offer from the White House, too big for a number of Senate Republicans, too small for Democrats. The president's top economic adviser still says a deal could happen. Take a listen to Larry Kudlow on with Jake just yesterday.


LARRY KUDLOW, WHITE HOUSE ECONOMIC ADVISER: Secretary Mnuchin is up to $1.8 trillion. So the bid in the offer is narrowing somewhat between the two sides.

President Trump actually has always said -- I mean, I've heard him say it in the Oval, as far as the key elements are concerned, the checks, unemployment assistance, the small business assistance, we've got to help airlines out, he would go further. He's always said that.


HARLOW: Our Congressional Reporter, Lauren Fox, joins me from Capitol Hill. A good Monday morning. I wish I could say, it's Monday and there's a deal that help millions of Americans, but there's not. It's notable though that Kudlow was saying the president could go up to above 2.2 trillion.

LAUREN FOX, CNN CONGRESSIONAL REPORTER: Well, I think that this really speaks to why this negotiation has been so confusing to follow and so confusing to really be a part of on Capitol Hill, because you're looking here at House Speaker Nancy Pelosi. She is hearing from Kudlow basically saying, perhaps the president would go further than Steve Mnuchin's $1.8 trillion offer. And you get a sense that perhaps maybe she's going to hold out for that number to continue to tick upward.

Meanwhile, over the weekend, you had Senate Republicans just outright rejecting the idea of $1.8 trillion, saying that this was just too far. They were on a conference call with Steve Mnuchin and Mark Meadows and you had someone like Lamar Alexander, sort of a member who is very soft spoken, doesn't really speak out very often, saying, quote, there was no appetite for going that high among Senate Republicans.