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The Lead with Jake Tapper

Justice Scalia Under Fire; Grand Old Panic?; Stock Market Drops; Scalia: Some Blacks Need "Slower-Track" Schools. Aired 4-4:30p ET

Aired December 11, 2015 - 16:00   ET

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

[16:00:08]

JIM SCIUTTO, CNN ANCHOR: Oil is tanking, and the Dow takes a dive.

THE LEAD starts right now.

Republicans readying for battle, with Donald Trump and now Dr. Ben Carson both threatening to bolt the GOP. What could be left of the party after the convention?

He has a gig for a lifetime on a court that impacts every one of us, but did Justice Antonin Scalia actually suggest some black students belong in slower colleges? We now have the audiotape.

Plus, ISIS missile quest, firepower that could bring down a passenger plane. I become the first reporter on the ground of a super secret U.S. rocket facility and get my hands on weapons that ISIS desperately wants.

ANNOUNCER: This is CNN breaking news.

SCIUTTO: And breaking news now, as we begin with our money lead, a very rough day on Wall Street, the Dow Jones plunging more than 300 points, oil prices now at their lowest level in years.

Our Cristina Alesci is covering the markets for us.

Christina, today just really the latest in a string of really bad days on Wall Street. What's happening?

CRISTINA ALESCI, CNN CORRESPONDENT: Well, it's not just a series of bad days on Wall Street. It's a bad month.

And that is significant because December we usually get a Santa Claus rally. We usually see stocks go up, and here we have a down month across all three major indexes, and you hit the nail right on the head. A lot of this is driven by the collapse in oil prices. That's making investors really nervous.

Also, we got a check on the health of the American consumer today, and it was weaker-than-expected retail numbers that also made investors a little bit shaky. Then the professionals were actually quite nervous about a small investment fund that announced plans to liquidate and that's got some professional traders and economists really worried about a potential meltdown in the bond market.

Now, the big question is what happens from here? A lot of that rests on what's going to happen with the Fed next week. There's a big meeting. We will get comments from the Fed on Wednesday. And the belief here is, if the Fed does a gradual increase in rates, that would give some people in the market confidence that the Fed thinks the economy is actually headed in the right direction, Jim.

SCIUTTO: Lots of bad news in there. Cristina Alesci, thanks very much for following it all in New York.

Our politics lead now. Is the Republican Party on the verge of splitting in two? The front-runner is threatening again to secede from the GOP and if things keep going the way that they are, the party could never be the same. Party leaders quietly met and discussed a so-called brokered convention. The last time Republicans battled all the way down to the wire was 1976.

A floor flight -- fight, rather, is maybe the only way for the party to negotiate itself out of a Trump nomination. But now it's no longer just the businessman threatening to abandon the party.

CNN senior Washington correspondent Jeff Zeleny is in Des Moines, Iowa.

Jeff, so Dr. Ben Carson, he has now made a similar threat that he may jump ship as well.

JEFF ZELENY, CNN SENIOR WASHINGTON CORRESPONDENT: He has, Jim. You're right.

Now, this big tent of the Republican Party is facing a big test just 52 days before the Iowa caucuses. But as GOP leaders fret about Donald Trump becoming the nominee, Senator Ted Cruz is doing some not- so-secret maneuvering to be in position if Trump falls.

(BEGIN VIDEOTAPE)

ZELENY (voice-over): Trump, still comfortably on top of the Republican field, has a new rival nipping at his heels. For the first time, Ted Cruz signalled his plan at a closed-door fund-raiser to take on Trump and Ben Carson.

SEN. TED CRUZ (R-TX), PRESIDENTIAL CANDIDATE: I believe that gravity will bring both of those campaigns down. And I think the lion's share of their supporters come to us.

ZELENY: A recording of Cruz given to "The New York Times" offers a behind-the-scenes look at his strategy to try what's eluded other Republicans, taking down Trump.

CRUZ: People are looking for, who is prepared to be a commander in chief? Now, that's a question of strength, but it's also a question of judgment. And I think that is a question that is a challenging question for both of them.

ZELENY: Cruz has been one of the few Republicans unwilling to tangle with the billionaire front-runner.

As Cruz tried to contain the furor after his private words went public, he tweeted: "The establishment's only hope, Trump and me in a cage match. Sorry to disappoint. Donald Trump is terrific."

Trump, appearing tonight in Iowa, said he will return fire.

"Looks like Ted Cruz is getting ready to attack. I am leading by so much, he must. I hope so. He will fall like all others. Will be easy."

It's a moment Trump's been waiting for.

DONALD TRUMP (R), PRESIDENTIAL CANDIDATE: And he's been so supportive, but at some point he's going to have to hit me, right? It's going to be a sad day, but we will hit back, I promise.

[16:05:00]

ZELENY: The latest skirmish comes as Republicans worry whether they can stop Trump. Party leaders discussed preparing for a contested convention at a private meeting this week in Washington. Ben Carson said any backroom deals could push he and Trump from the party.

In a statement today, he said: "If this was the beginning of a plan to subvert the will of the voters and replace it with the will of the political elite, I assure you Donald Trump will not be the only one leaving the party."

The Republican National Committee said there was no reason for worry.

SEAN SPICER, REPUBLICAN NATIONAL COMMITTEE COMMUNICATIONS DIRECTOR: Republican voters will choose the delegates that go to the convention in Cleveland next July. Those people will decide the nominee. That's it, bottom line, plain and simple.

ZELENY: The party is trying to bring order to the chaotic race, as other candidates hope to gain traction. Supporters of Ohio Governor John Kasich launched a new online effort to put a stake in Trump.

TRUMP: Trump Steaks are by far the best tasting, most flavorful beef you have ever had.

ZELENY: Mocking one of the mogul's old businesses, Trump Steaks. Yet Trump remains squarely on top. A new poll in New Hampshire shows Trump at 27 percent, followed by Chris Christie at 12 and Marco Rubio at 11.

(END VIDEOTAPE)

ZELENY: Now, Trump's Muslim plan remains deeply controversial. A new poll today says that six in 10 Americans believe that the U.S. should not block Muslims from entering the country.

Now, Trump and national security will be center stage at the last Republican debate of the year in just a few days in Las Vegas. And, Jim, that's going to be central to how this race continues as it enters the new year.

SCIUTTO: No question, right here on CNN in four days. Jeff Zeleny in Des Moines, Iowa, thank you.

I want to talk more about 2016 with CNN political commentator Kevin Madden. He was senior adviser to Mitt Romney's presidential campaigns. Also here, CNN political commentator Maria Cardona. She's a Democrat.

Welcome, guys. Great to have you on.

So, Kevin, you got to look really far back for precedent for this, right, '76, the last contested Republican Convention. You have got to go back to '48 for a truly brokered one, multiple votes, trading of horses, et cetera. Is this a real possibility?

KEVIN MADDEN, CNN CONTRIBUTOR: Look, in this cycle, I'm not going to rule anything. There's been a lot of strange things that have happened in this cycle.

But I think it's still very highly unlikely. And I think a lot is made -- there's a hypersensitivity to all the maneuvering going on right now. But I think too much was made of this particular story. The idea that Reince Priebus and a bunch of people that he knows really well for a long time in a public restaurant are having conversations about how they're going to build a brokered convention?

I don't think that that really is what's happening. I think there are conversations about possible scenarios going on throughout the party, but I think it's very unlikely. Remember, we haven't had one vote yet. There are still a bunch of delegates and a bunch of voters who are going to decide who the candidates are before we ever get to that point.

SCIUTTO: Does this at least show, though -- first of all, we have to acknowledge there have been a lot of surprises, right, because people -- every month for seven or eight months, people have said this is going to die out.

(CROSSTALK)

MARIA CARDONA, CNN CONTRIBUTOR: You don't rule anything out.

SCIUTTO: Right.

But does it at least show the level of nervousness or discomfort among, right, party leaders with the idea that Trump could actually win this thing?

MADDEN: I think that's absolutely right. I think you're seeing an increasing level of chatter amongst the folks inside the party apparatus about some of these possibilities becoming more of a potential -- having more potential than ever in the past, and therefore they are looking at it. But I still think it's a little bit too soon. SCIUTTO: So, Maria, the conventional wisdom is that Democrats are

watching this as they salivate the Republicans beating each other up. That's the conventional wisdom, this only benefits the Democrats.

But let's be honest. What is clear about the electorate this cycle is there's a throw the bums out mentality, no question. That's not entirely new, but it seems to have reached some sort of fever pitch right now. Do you think that that conventional wisdom is overdone? Does this necessarily ensure the Hillary Clinton presidency?

CARDONA: Nothing ensures anything at this point, Jim.

To Kevin's point, every single thing that we have thought was conventional wisdom has been out the window. But I will say, to the point about the nervousness of the Republican Party that Trump could be the nominee, given that he is ahead by more than double digits, by more than 20 points in some national polls, by a lot in all these early states, I think really does betray the nervousness and the anxiety that has become palpable panic at this point, because there is talk of a brokered convention when there is a candidate that is so far ahead. Right?

They're not close, right? And so I think this really underscores how nervous they are. Now, if he is the nominee, I do think either -- whatever happens, I think that Hillary Clinton will win. I don't believe that it will be easy, because whoever comes out as the nominee from the Republican Party, this is still a very divided country.

But the reality is, is that if Trump is the nominee and he becomes the nominee with most of the people...

MADDEN: Higher and higher unfavorables than Hillary Clinton potentially.

CARDONA: Higher unfavorables than Hillary.

And what Hillary Clinton really does have going for her is that she has huge favorables within her own party. Democrats really underscore how much they like her. She's up at like 80 percent. Donald Trump is very low in those ratings. And that's the beginning of winning a general election.

[16:10:06]

SCIUTTO: Right.

So we talk about the fissure between the kind of Trump/Carson Republican Party and the establishment Republican Party, but you have this other now brewing firefight between Trump and Cruz, right, that kind of thing and Trump beginning to push back against him. How do you expect Trump to take on Cruz as a target?

MADDEN: Well, look, Donald Trump right now, I think his main strategy this entire time when he decides to go against one of his opponents is to throw everything. I would expect that the first thing you would see would be a contrast

on immigration. Cruz has, in many of the same ways that Marco Rubio has tried to draw a contrast on that, is point out that he's had differing positions on the question of pathway to citizenship.

So I would expect he'd try to introduce new information, which is always devastating at this point in a campaign, when voters are starting to make up their minds.

SCIUTTO: Final thought?

CARDONA: I think that what Donald Trump has going for him that he can use against Ted Cruz is that Ted Cruz is part of the establishment. He is a current senator.

MADDEN: I think that's hard. It's hard.

(CROSSTALK)

CARDONA: But even as the establishment here denies that because they don't like him, Donald Trump can use that against him, because what is in Donald Trump's favor is the rank-and-file are with him, and are with him with a passion that we haven't seen before.

SCIUTTO: And seemingly getting stronger.

CARDONA: Exactly.

SCIUTTO: Maria, Kevin, great to have you on, as always.

CARDONA: Thank you so much.

SCIUTTO: We are just four days away from the next Republican debate. You can see that right here on CNN next Tuesday night at 8:30 p.m. Eastern time.

This has been an unpredictable election. And CNN wants to know what you think will happen next. Go to CNN.com/play. There, you can make predictions and enter a chance to win a trip to join CNN in Florida at the Republican debate in March.

Well, a Supreme Court justice under fire for comments about affirmative action and black students. Until now, we have only heard about what he said. Now we're actually hearing his words.

The tape from inside the Supreme Court, that's right after this.

(COMMERCIAL BREAK)

[16:16:15] JIM SCIUTTO, CNN ANCHOR: Welcome back to THE LEAD.

Continuing in our politics lead: Supreme Court Justice Antonin Scalia provoked outrage with comments during an affirmative action case. CNN has just obtained the audio of those remarks, and in this clip, Scalia is questioning an attorney for the University of Texas who is defending that university's use of race as a factor in admissions. (BEGIN AUDIO CLIP)

JUSTICE ANTONIN SCALIA, SUPREME COURT OF THE UNITED STATES: There are those who contend that it does not benefit African-Americans to get them into the University of Texas where they do not do well as opposed to having them go to a less advanced school, a less -- a slower track school where they do well. One of the briefs pointed out that most of the black scientists in this country don't come from schools like the University of Texas. They come from lesser schools where they do not feel that they're being pushed ahead in classes that are too fast for them. So I'm just not impressed by the fact that the University of Texas may have fewer. Maybe it ought to have fewer.

(END AUDIO CLIP)

SCIUTTO: Joining us for more on those remarks, senior legal analyst Jeffrey Toobin, the president of Judicial Watch, Tom Fitton, and "Washington Post" columnist Clinton Yates.

Jeff, I want to start with you. To give us a little bit more context on Justice Scalia's remarks, both on this theory, the so-called mismatch theory that he's referring to there, but also, the argument we've been hearing that really, he was putting that theory out there as opposed to advocating for that theory.

JEFFREY TOOBIN, CNN SENIOR LEGAL ANALYST: Well, this is a theory that was put before the court for very specifically in a brief and as you said it's called mismatch, and the idea is that African-American students who are the beneficiaries of affirmative action supposedly do better if they go to less selective schools, they graduate more often, they get more professional degrees from there than from the more selective schools like the University of Texas at Austin.

Let me just say, that is a very controversial theory. There are many people who are more -- who view the same statistics as supporting affirmative action at schools like the University of Texas. But to be fair to Justice Scalia, he is referring to an argument that is already before the court.

SCIUTTO: Clinton, just to go over this language again, to be clear, these comments have sparked some very serious outrage. They come from lesser schools, says Justice Scalia, where they do not feel they're being pushed ahead in classes that are too fast for them. When I hear that and read that, paternalistic is the word that comes to mind.

I just wonder, do you buy the argument that, hey, this is part of a -- it's a Supreme Court argument, he's just positing a theory that is out there?

CLINTON YATES, COLUMNIST, WASHINGTON POST: I mean, I'll buy that for Scalia specifically but I'm not buying the theory itself, which is the more important thing here. I mean, we're talking about a Supreme Court justice. If he's out there putting these ideas into the regular vernacular of how we discuss what should or should not be in higher education, the people who are doing admissions, the people who are deciding who should be going to schools, guidance counselors high, school teachers, the people that are actually important along the line are going to listen to that and understand it as reasonable.

And so, that's where the real problem is to me. Scalia has said a million outrageous things in his career, but putting this out there as if it's a natural part of how we think -- no, there's no proof for this theory and that's the problem.

SCIUTTO: Tom, I know you believe the backlash against Justice Scalia has been overdone. Why is that?

TOM FITTON, PRESIDENT, JUDICIAL WATCH: Well, it's overdone because it's baseless and known to be baseless.

SCIUTTO: What? The outrage is baseless or --

[16:20:00] FITTON: Yes, the outrage is pretend outrage. We have proponents of racial discrimination attacking a justice who says government shouldn't racially discriminate even for supposedly good reasons and he points out and there have been no -- there's no dispute to the studies, no serious dispute to the studies that racial minorities in selective schools where they're placed in the schools because of their race and as a result are placed in a lower part of the class don't do as well as racial minorities who go to schools where they're placed not because of their race but because of their grades and they end up in the middle or the high end of their class, those minorities do better.

And racial quotas hurt we do as hurt minorities that are cited in the brief, multiple studies, some from the U.S. Commission on Civil Rights.

SCIUTTO: To be fair, I've read those studies and I want Jeff -- I want you to comment because you know this better than me, studies that very much contest that argument that black students do better in effect amongst their own. I mean, Jeffrey, I wonder what your view is.

TOOBIN: Those studies exist as well.

And it's important to put this argument in context. Justice Scalia and certainly Justice Clarence Thomas have argued for many, many years that affirmative action hurts African-Americans. That it creates problems for them.

They are very much in the minority in that view, especially among African-Americans. So this idea that Justice Scalia is putting forward is that -- no, no, I'm the real friend of black people because I'm the one that wants to put them a school where they'll go better, that's an argument that's been made many times and it remains very controversial, especially among the people who are the subject of that argument.

YATES: Yes, it's particularly ridiculous because you're implying that not giving people a chance is a better idea than giving them a chance. The reason why people don't do as well in schools is almost as much because of the support system of the institution itself, all right? When schools are not just weed out systems and they're supporting the students that are there, hello, including those who aren't necessarily in the same amount of privilege as others, people will do better. It's a matter of not just the student but the environment they're in and what they learn and the people around them.

SCIUTTO: Tom, what's your response?

FITTON: This is a racially discriminatory policy that the University of Texas is trying to defend and the suggestion that racial discrimination benefits the beneficiaries ought to be unsurprising to anybody.

And those who support these racially discriminatory policies don't like to answer for the impact and the stigma it brings and there are real world impacts that you're in the school for whatever reason, you're not there not because of your credentials but because you had a leg up because of your race, and you're placed in situations that change the outcome of your academic career.

And the big lie is that this benefits minorities and it's no surprise that when we highlight the studies, however controversial, among African-American leadership who are almost uniform in thinking irrespective of the evidence, that's no surprise. We have a political approach to this and Scalia has a legal academic approach and politics is not rational.

SCIUTTO: Jeff, I hear you want to pipe in. I'll give you a chance --

TOOBIN: Well, you know, you can certainly understand why African- Americans and many others are somewhat surprised that Antonin Scalia knows better what's good for African-Americans rather than, say, the NAACP Legal Defense Fund.

FITTON: That isn't what he said, Jeffrey. Come on. That isn't what he said. He highlighted academic studies showing these policies don't help African-Americans and maybe hurt them.

(CROSSTALK)

FITTON: You talked about the big lie.

YATES: It's not the big lie. The big truth is that the disadvantages that you refer to in terms of various legs up for whatever reason, be that you're the kid of somebody, you play a support. Black people deal with those every single day in every walk of life.

SCIUTTO: Listen, we're trying to compress a difficult issue into five minutes here. It's a good start. We're going to keep the conversation up. I want to thank you, Tom, Clinton and Jeff as well in New York for helping us get this started. Thanks so much.

Now, there was a computer missing from the home of the couple behind the San Bernardino terror massacre. Is it in this lake? The latest on that underwater search for clues going on right now as we speak.

Also, ISIS possibly in possession of their most dangerous weapon yet, a passport printing machine. What U.S. intelligence is saying, right after this.

(COMMERCIAL BREAK)

[16:28:54] SCIUTTO: Welcome back to THE LEAD.

Today's national lead, the investigation tracing the steps of the terrorist couple who dropped their baby off before murdering 14 people. Right now, a dive team is combing through a murky lake in San Bernardino. They are looking for a hard drive or any evidence that would help explain how Syed Rizwan Farook and his wife Tashfeen Malik killed those 14 people last week.

Did the couple work with a wider terror ring to plan their attack? Did they take orders from a foreign group overseas?

CNN justice correspondent Pamela Brown has been in touch with her sources.

Pamela, what's new today in the investigation?

PAMELA BROWN, CNN JUSTICE CORRESPONDENT: Well, we're learning, Jim, that an FBI investigators believed that before the shooting attack the killers visited that nearby park where divers are doing the painstaking job of searching the lake, looking for items that the attackers may have thrown away. Among the items the divers are searching for is a computer hard drive that investigators believe the shooters removed from the home in an attempt to hide their tracks.

(BEGIN VIDEOTAPE)

BROWN (voice-over): An FBI team in its second day of searching this lake near the San Bernardino shooting scene, hoping to find crucial evidence including the hard drive missing from the couple's computer.

DAVID BOWDICH, ASST. DIR., FBI LOS ANGELES OFFICE: We did have a lead that indicated that the subjects came into this area.