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Report: Michelle Obama Stumps Beside Clinton for First Time; Key Battleground States Flip Back to Toss-Ups; Democratic Senator Unsure Clinton Would Stick with Garland; Cruz Says No Constitutional Reason to Force a Filling of Supreme Court Vacancy, Justin Timberlake in Trouble for Snapping Selfie in Voting Booth. Aired 3-3:30p ET

Aired October 27, 2016 - 15:30   ET

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

[15:30:00] GLORIA BORGER, CNN CHIEF POLITICAL ANALYST: Exactly, when she called over to the campaign and said, hey, do you mind if I give this speech? And she then sort of stunned everybody when she spoke to women and gave the speech about what that meant to her and what that meant to her daughters. And what that should mean to women and she is very comfortable and she's at her best, I think, when she's talking about herself as a mother and talking to other members and young women so when she spoke today she also started by saying "by the way, Hillary Clinton happens to be a woman." And that's OK with us.

And so, I think that in an interesting way, yes, she comes at it because of policy, she says your votes matte and she personalizes it because it matters ant where you can afford to send your children to school, how they get their health care, et cetera. But I do think that that tape sparked something in her in this campaign and I think she's just kind of taken off and run with it and it's so personal to her.

BROOKE BALDWIN, CNN ANCHOR: I remember when she got emotional when she was speaking to those students in Manchester and Kate we talked that day, you talked about a chapter in in your book called Bad Blood and it wasn't always like this first lady fan girl session once upon a time. So feel free to speak to that but also I know you make a point as well on how Hillary Clinton -- Michelle Obama is able to speak in a way and speak about things in a way a la what she did in Manchester, New Hampshire, that perhaps Hillary Clinton as she is the one running cannot.

KATE ANDERSEN BROWER, AUTHOR, "FIRST WOMEN": I think what's so interesting about Michelle Obama is it seems genuine, we know she doesn't like campaigning and she's very analytical, she's very methodical when she campaigns, it's always for a very specific reason so it seems genuine. She's also, like Jeff said, probably not running for office herself so it makes it seem more genuine.

Then I thought it was interesting when she said Hillary is in this for us because a lot of the dynamic between the Obamas and the Clintons is the Obamas thought of the Clintons as this political dynasty that came before them. And they didn't necessarily do as much as they could have because of Bill Clinton's transgressions in the White House and these scandals that cropped up, but obviously they're united in their shared dislike of Donald Trump and the stakes are high and Michelle Obama is making that clear that she is all in. And it's fascinating to see how passionate she has been and some of her former aides are surprised to see her out there this often and passionately.

BALDWIN: Thank you all. We have more breaking today. CNN's battleground map changing 12 days to go. Here are the two states were leaning Democrat, they're yellow, considered tossup. I'm Brooke Baldwin, this is CNN's special live coverage.

[15:35:00] (COMMERCIAL BREAK)

BALDWIN: Breaking today, we have to talk about this map here, right? The road map to 270, the battleground map. It's changing. Two states that were leaning democrat they are now toss ups. CNN's John King breaks it all down at the magic wall. John?

JOHN KING, CNN CHIEF NATIONAL CORRESPONDENT: Take a closer look at the changes we're making to our CNN electoral map and a look at this whether this race is tightening up as we head into the final 12 days. Number one, here are our new changes, and these are the big shifts. Florida, now a tossup state. Nevada, now a tossup state.

In our map, just yesterday, we had both leaning Democratic but new polling in both states shows tight tied races so we've moved those races into the toss up category. What does that do? It downgrades secretary Clinton. She's still at 272, that is enough electoral votes to win the presidency, but she's below 300 so, yes, this map looks better for Donald Trump today than yesterday.

But he's still facing an extraordinarily steep hill. Two, three, four, five, six toss up states, two of them usually ruby red Republican states. The others, Nevada, Florida, North Carolina, Ohio, always the most competitive states when you get to the end in presidential politics. Here's the problem for Trump. Even if he won all of the tossup states -- a steep hill -- it's still not enough.

He would have to find something blue on this map and turn it red even as he won the tossup states. Here's the complication with that. At the moment, there's a third-party candidate Evan McMullin who people think has a good chance to win Utah. Hillary Clinton thinks she has a good chance to win Arizona.

On the map, here, yes, Florida is now tied, North Carolina is slight Clinton lead, she thinks she can win both of those states and a lot of Republicans on the ground agree with her and Ohio is still in play. A tied race there but early voting could favor secretary Clinton. Trump has to win them all, he has to be perfect in the final 12 days. Steep hill for Trump to climb. Let's switch maps. One more perspective on this. Yes, this was

Hillary Clinton just a few days ago, we were talking about a possible blowout, a nine-point lead in the poll of polls nationally. Now it's a smaller lead, no doubt about it, a six-point lead, so Donald Trump is in better position now than he was just a few days ago but six points is remarkable.

At this point in 2012, the Obama/Romney race was one point. In 2008 a big Democratic year senator barrack Obama's lead over senator John McCain just about the same. So even though the race is tighter, secretary Clinton remains in a commanding position. Though listen to her on the trail. She's telling her supporters don't let up.

BALDWIN: John, thank you so much. Gloria is still with us, so is David. David, let me begin with you here. Put on your campaign "strategery" hat. If you are the Donald Trump campaign in these final 12 days, where do you put him?

DAVID CANTANESE, SENIOR POLITICS WRITER, U.S. NEWS AND WORLD REPORT: You have to put him in all the battleground states that he's going. I think his schedule is good. He has to be in Ohio, North Carolina, Florida. You see that rotation but as John King said. Even if he flips Florida and Ohio, keeps North Carolina, he needs more states.

Iowa looks good for him. Then he has to pick up Nevada then flip Colorado if he doesn't win New Hampshire, which looks tough. So look, I would put him in three big states then out west, because if he has a chance and he's tied Hillary going west, he still has to flip Nevada and Colorado.

[15:40:00] Two very big hard lifts for him.

BALDWIN: What about Florida, Gloria? I will be live in Florida tomorrow.

BORGER: Florida, Florida.

BALDWIN: We know -- we were talking about the poll this is time yesterday, the Florida poll where Trump was up and so, you know, the Hillary Clinton campaign they said already, they now have adjusted so Hillary Clinton will be in Florida on Saturday, smart strategy?

BORGER: Yes. First of all, I don't think Donald Trump has a path at all without Florida and they know it and that's why he is in the state and will continue to be in state and Hillary Clinton understands that as well which is why she's going to be in the state. It always seems to come down to Florida, doesn't it, Brooke? I was talking to a Republican strategist in the state last night and he pointed out to me something that is important.

When we look at these polls from Florida, what we have to look at is the percentage of Republicans that Donald Trump is getting. Mitt Romney, who lost the state lost the state last time by one percent, had 92 percent of Republicans with him in the state of Florida. Right now, Trump is somewhere between 80 percent and 85 percent of Republicans, so he has to get Republicans to vote for him in the state of Florida, get those people to the polls, some are staying home, some of them are voting for Hillary Clinton.

And he's got to tell those people who may be staying home because they don't like either one of them that they have to vote for him. Unless he can get that participation rate up in the state he is going to have real trouble.

BALDWIN: I'm also fascinated by Utah and how neither major party candidate may win. That's another story. Guys, thank you so much. Up next, senator Ted Cruz suggesting he may put up a fight to keep the

supreme court seat vacant for four years if Hillary Clinton were to win. A huge suggestion as the fate of the highest court in the land hangs in the balance.

[15:45:00] (COMMERCIAL BREAK)

BALDWIN: Let's talk about the supreme court now, the open supreme court seat left by the late justice Antonin Scalia has been the deciding factor for a number of voters this election. During the final debate, Hillary Clinton called on the senate to confirm president Obama's nominee, judge Merrick Garland.

But she did not specifically say if she were to win the White House whether or not she, too, would agree and that she would re-nominate judge Garland. Now, you have Texas senator Ted Cruz who is raising the possibility that he might not confirm any Clinton nominee. This is what he told the "Washington Post", I'm quoting the Texas senator. "I think there will be plenty of time for debate on that issue, there is certainly long historical precedent for a supreme court with fewer justices, that is a debate that we are going to have."

So let's chat about that with Jeffrey Toobin, our CNN senior legal analyst and supreme court biographer and CNN legal analyst Joan Biskupic. Great to have you on. First I defer to you who's written books on the supreme court. I mean, first of all, is this even -- do you think senator Cruz's threat, should it be taken seriously? He says the constitution says that there is no language, you don't have to make me have any sort of nomination hearing and that's correct.

JEFFREY TOOBIN, CNN SENIOR LEGAL ANALYST: Absolutely. And I think it should be taken very seriously.

BALDWIN: You do?

TOOBIN: Look, no one thought -- very few people thought -- that mitch McConnell would come out within one hour of justice Scalia's death saying no hearings, no vote. This is a life or death matter for a lot of Republicans. On the supreme it would be the first time there would be five liberals since the Nixon administration and if they have the majority in the senate, I think there is a realistic possibility they will try to keep this court at eight at least at least until the midterm elections and that's -- you know, the only check on that is political. There's no way they can be forced to have hearings, no way they can be forced to have a vote, it's all just political pressure or the absence of it.

BALDWIN: Let me add to that, to this news made with regard to what senator Cruz said. Then you have Republican senator who's been very critical of Donald Trump, Arizona Republican Jeff Flake who does not agree with the threat and he said this "There is a difference between what can be constitutional and what you can do politically. Leaving a vacancy for up to four years is not why we are here." I'm paraphrasing, Joan, it's why they're members of congress. It's their job, no? JOAN BISKUPIC, CNN LEGAL ANALYST: Right and in the past when the seat

has remained vacant it was because the senators actually acted on someone and rejected them. This is unprecedented in the fact that the senate hasn't acted at all. Think back to '87/'88 when Louis Powell stepped down and president Reagan nominated Robert Bork.

The senate rejected Robert Bork, but at least they acted on him and that seat was open, let's say, for about 200 days. Then if we go back further in '69 and '70 it was actually a whole year that a seat remained open after Abe Fortas stepped down but again the senate was acting on people -- rejecting them but acting.

And what is unusual here that I think it's amazing that the political pressure allowed -- there was not enough political pressure to force Mr. McConnell to flinch in any way.

[15:50:00] I think once we get into 2017, things might change that way. And face it, this is a court that was designed to have nine seats. Nine people. We might even see, you know, some of the justices themselves speaking out more about institutional concerns of leaving it open.

TOOBIN: You know, the one thing about supreme court is that those of us who follow it carefully always think, oh, this will be the year there will be a lot of political pressure, that voters will care about the supreme court. It never is. And Mitch McConnell and Republicans, as far as I can tell, have played very little political price for delaying the Merrick Garland nomination. I don't know if that would be different in 2017. It may be a good thing. It may be a bad thing. But voters do not seem highly motivated by the supreme court.

BALDWIN: They should be. We've done entire segments on the supreme court this election.

TOOBIN: They should be because we talk about it. Exactly!

BALDWIN: It matters. Jeff, let me stay with you, though. On Merrick Garland, the president nominated him seven months ago. You have Amy Klobuchar, a good friend of the Clintons, a Minnesota Dem, told Bloomberg she was unsure if Hillary Clinton, if she were to win, if she would re-nominate judge Garland.

TOOBIN: I Interviewed a bunch of senators on this question for a "New Yorker" story recently. They were unanimous that Hillary Clinton should re-nominate Merrick Garland because they think he'll get confirmed. He is moderate. He will be 64 years old. Republicans will say we'll put up a fight but ultimately we'll let him through because the alternatives would be more liberal and younger.

BALDWIN: A lot of Republicans are worried, if Hillary Clinton were to be elected, she would come in and say, oh, it's my turn to replace the Scalia seat with someone very liberal.

TOOBIN: Exactly. So the political dynamic is these Democratic senators saying, look, let's get Merrick through, you are probably going to have more vacancies to fill. Ruth Ginsberg is 83. Kennedy is 80. Do this now and have a big fight later.

BALDWIN: How much of this, Joan -- we can't crawl into president Obama's mind but he is the one who nominated judge Garland. How much do you think he would care once he is out of the White House whether or not if it were to be Hillary Clinton in the White House, whether or not she, you know, takes his choice?

BISKUPIC: I think he would care. I think he would get that she is going to have a lot of pressure from the left flank to go with someone who would be more liberal at this point. He nominated this man. He has been twisting in the wind for these seven months. I think that he would like to see a new president Clinton, if she wins, pick him up.

I actually think that she might have an incentive, given what else will be on her plate. Does she want to spend a lot of political capital right in the beginning on a nomination when she will likely get more. I talked to Ruth Bader Ginsburg about this, and I said, would you send a little signal that you would be going soon just to help your pal Merrick Garland. They are old friends. She said, I don't have to send a signal. A president Clinton would know what's about to happen just because of the ages that Jeff just mentioned.

BALDWIN: How many signals do you have to send when you're 83 years old?

BISKUPIC: Right. Exactly right. That's the thing, you know. Just think. March.

BALDWIN: Wow!

BISKUPIC: Anthony Kennedy. They're all getting up there. And I think that, especially -- frankly, I don't think it's just Democrats who would think about retiring during a Hillary presidency. I wouldn't be surprised if the Republicans -- if the senate stayed Republican and Hillary Clinton won, that even Anthony Kennedy who might be tiring of things, would think that he could step down then because there would be a check on who a president Clinton would nominate if we had a Republican senate.

BALDWIN: All right. I love that you brought up the notorious RBG. Happy birthday day to her. Happy 84.

Coming up next Justin Timberlake speaking out for the first time since the D.A. in his hometown said he would not press charges against the singer for what he did in the voting booth.

[15:55:00] (COMMERCIAL BREAK)

BALDWIN: Here is an election tip for you straight from Justin Timberlake. Don't snap a selfie in the voting booth, people. Justin Timberlake posted this selfie of him about to cast a ballot. Popped it on Instagram along with a call to his fans to get out and vote. But then, you know, all chaos erupted because Tennessee law makes it illegal to take photos or video inside polling stations.

(BEGIN VIDEOTAPE) JUSTIN TIMBERLAKE, SINGER/ACTOR: Get out and vote. You know. But -- damn straight. Don't take a picture of yourself in the -- I had no idea.

JIMMY FALLON, HOST, TONIGHT SHOW: I had no idea either. I think we all learned a little something.

TIMBERLAKE: I was like, this is going to be great. Everyone was like --

(END VIDEOTAPE)

BALDWIN: His selfie could have landed him in jail for 30 days. But the local district attorney says her office will not waste time nor resources investigating Justin Timberlake.