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The Lead with Jake Tapper

President Obama and the Battle Over Scalia's Successor; Obama Speaks to Press on ASEAN Partnership. Aired 4:30-5p ET

Aired February 16, 2016 - 16:30   ET

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

[16:30:02]

JAKE TAPPER, CNN: Yes, the owner -- the owner said that the pillow was on his head up here.

(CROSSTALK)

PAMELA BROWN, CNN CORRESPONDENT: Yes.

TAPPER: Not on his face.

BROWN: Yes.

TAPPER: A little different.

BROWN: That's a big detail. That's correct.

TAPPER: A little different, yes.

Pamela Brown, thank you.

In just minutes, President Obama is expected to address Senate Republicans' threat to block any Supreme Court nominee he puts forward.

President Obama's plan to get a justice confirmed before he leaves the White House -- more on that when we come back after this quick break.

(COMMERCIAL BREAK)

TAPPER: Welcome back to THE LEAD.

As you see from the right side of your screen there, we are waiting for President Obama to come to the podium to take questions for the first time since the death of Antonin Scalia opened up a seat on the Supreme Court.

Now, President Obama has said he will nominate someone, but many Republicans say that someone shouldn't even get a hearing, that the vacancy should be filled by the next president.

Let's talk about this while we wait for President Obama.

Joining me now, CNN senior legal analyst Jeffrey Toobin, CNN political commentator and former communications director for Ted Cruz Amanda Carpenter, and Democratic strategist Stephanie Cutter, who, we should note, she steered the White House confirmation process for Sonia Sotomayor in 2009.

[16:35:10]

Congratulations on that, by the way.

STEPHANIE CUTTER, FORMER OBAMA DEPUTY CAMPAIGN MANAGER: Thank you.

TAPPER: I'm a little late, but congratulations.

(LAUGHTER)

TAPPER: So, Jeff, let me ask you, how much can we expect the president to reveal about his thinking process on a nominee today?

JEFFREY TOOBIN, CNN SENIOR LEGAL ANALYST: Well, certainly, he's not going to disclose the names he's considering.

But what I'm interested to hear is, will he say anything about the kind of nominee he's looking for? Will he be looking for a sitting judge? Will he be looking for a less conventional choice, like an elected official or a former elected official or someone who is a private lawyer or an academic?

You know, I would like to hear something about whether the unusual circumstances, which this, you know, unified Republican opposition in advance, is changing his thinking about what kind of nominee to put forward.

TAPPER: Amanda, Senate Judiciary Committee Chairman Chuck Grassley said today he has not ruled out holding a hearing on President Obama's nominee.

We also heard Republican Senator Thom Tillis of North Carolina today, who is on the Judiciary Committee. He said he didn't want to rule out a nominee out of hand. Listen.

(BEGIN AUDIO CLIP)

SEN. THOM TILLIS (R), NORTH CAROLINA: I think we fall into the trap, if we just simply say sight unseen, we fall into the trap of being obstructionists.

(END AUDIO CLIP)

TAPPER: Is it fair to say that we're seeing some chinks in the armor of the Republicans' resolve on standing unified against any nominee?

AMANDA CARPENTER, CNN POLITICAL COMMENTATOR: Yes, I'm very fearful that is the first signs of dam breaking.

They're ruining a very good thing that the GOP has going on right now. Because Republicans came out strong immediately and said we are not going to have any hearings, they were making a stand on principle, not allowing this to become about the nominee, about the person, about it being personal.

Now that they are opening the door to it, they're going to ruin that effort. And Mitch McConnell, he's in the leadership position. He's shown that he's willing to crack the whip on conservatives when they get out of line. He needs to crack the whip on them immediately.

TAPPER: Now, I know, Stephanie, you disagree, but let me ask you a different question. I know you disagree with the idea that there shouldn't be a hearing.

Right now, there's a debate among...

CUTTER: Thank you for answering my question.

TAPPER: Well, I want to skip ahead to something else, which is right now there's kind of a Democratic debate going on. If it's a forgone conclusion that this person won't get a hearing or it's going to be very tough, should President Obama nominate somebody who will be a rallying cry for Democratic activists out there, somebody very liberal, maybe a woman, someone who is in a minority group, or should President Obama bow to the circumstances?

It's a "conservative seat -- quote, unquote -- although obviously I think it was Sandra Day O'Connor's before Scalia, but be that as it may, the Scalia seat, and this is obviously a very contentious time in a presidential election year. Maybe pick a moderate.

Which do you think he should do?

CUTTER: I think the president is going to do what he's done for the last two times he's picked Supreme Court nominees.

He's going to pick somebody who is committed to impartial justice and to upholding the Constitution. He's not going to look to make a political play. This is one of the most important things a president does as president of the United States, other than commander in chief. Picking a Supreme Court nominee, who is serving a lifetime on the court, is a critical thing for any president.

He's going to pick the best person he thinks to fill that position.

TAPPER: Jeff, "The New York Times" looked at dissenting opinion that Justice Scalia wrote in which he called the Supreme Court strikingly unrepresentative, and he called for more diversity, for its members not to only be graduates of Harvard and Yale Law Schools, not to only come from the Northeast, or California, New York City, but to reach beyond, maybe pick an evangelical, maybe pick somebody from the Midwest. What do you think?

TOOBIN: Well, I think there is definitely something to be said for some products other than Harvard and Yale Law School being on the Supreme Court.

But let's not kid ourselves. What Justice Scalia wants is someone who will vote like he did, regardless of what law school they went or what state they're from. And vice versa, Democrats the same thing. Samuel Alito went to Yale Law School. Sonia Sotomayor went to Yale

Law School. They have very different views on constitutional matters. What matters about Supreme Court justices, I think, is how they come out on issues. Their backgrounds, you know, are interesting, but don't kid yourself. What the partisans want is votes for or against abortion rights, for or against affirmative action, and everything else is secondary.

TAPPER: Jeffrey Toobin, Amanda Carpenter, Stephanie Cutter, stick around. We're going to talk more about this.

We're minutes away from President Obama addressing his plan for replacing Scalia on the bench, filling the vacancy. I guess no one could ever really replace Scalia.

And, also, President Obama, we will discuss how he plans to get past Republicans or get them on board. Stick around.

(COMMERCIAL BREAK)

[16:44:04]

TAPPER: Welcome back.

As you can see from the right side of the screen, we are still waiting for President Obama to come out and take questions, no doubt take on his critics about nominating a Supreme Court justice in this last year of his in the White House.

CNN's Michelle Kosinski is traveling with the president in Rancho Mirage, California.

Michelle, in terms office the president naming somebody, a nominee to fill this void left by Scalia, what are you learning about the timeline?

MICHELLE KOSINSKI, CNN WHITE HOUSE CORRESPONDENT: Yes.

Well, it is a process and there are several steps in it. What the White House has said is already the team that's going to be on this has started laying the groundwork. They have met. The president has already been in direct contact with them. And that's over the last couple of days. They got on this very quickly.

They haven't wanted to convey a huge sense of urgency, though. I think a lot of people were surprised when the president first spoke on this right after Scalia's death and he used the phrase in due time. He also said that there was plenty of time for him to come up with somebody, as well as plenty of time for the Senate to give this person a fair shot, in his view.

[16:45:00] We already know, though, that the White House has reached out to congressional offices, both Democrats and Republicans, although we're told this is preliminary.

So, all told, what the White House is pointing to is look at the past two nominees that the President presented for the Supreme Court, those took roughly a month.

And so, you know, it's likely that this will take about the same amount of time because of the rush surrounding, the timeframe is so unusual.

I think it's very possible that it could happen sooner. But again, it has to go through that process first of vetting then there will be interviews. The President will speak directly in person to a number of people on his short list.

What could help, though, is because the President has done this two times before, some of those people who are on prior short lists will very likely be on this short list.

So some of that groundwork obviously, has already been done, Jake.

TAPPER: All right. Tick tock, of course. Michelle Kosinski, stick around. We'll come back to you.

We're going to hear from President Obama any moment for the first time since Supreme Court Justice Antonin Scalia died unexpectedly, he'll speak at length.

Scalia, of course, leaving an open seat on the court in this election year.

Let's bring back our panel, CNN Senior Legal Analyst, Jeffrey Toobin, CNN Political Commentator and Former Communications Director for Ted Cruz, Amanda Carpenter, and Democratic Strategist, Stephanie Cutter.

Amanda, let me start with you. Dr. Ben Carson today said that if a Republican were president, the GOP nominees would be pushing him to nominate a new justice. Doesn't he have a point?

If this was year eight of President Cruz's Administration and the Democrats were controlling the Senate and saying, "No way, no way," Cruz would be pushing the nominee, I got to believe.

CARPENTER: Yeah, without doubt. And that's why I think Republicans should be unapologetically direct about what they're trying to do by stopping this nomination.

Voters have been crying out for Republicans to stop President Obama's agenda in his tracks, stopping his final Supreme Court pick that would change the ideological balance of the court is a very direct way of doing this.

And so, you know, I don't think we should bother ourselves with digging up quotes about who opposed the (inaudible) last time and how Republicans and Democrats are wrapped around us, who cares. Republicans must make it an election issue and say, "We're playing for all the marbles, let the next president decide."

TAPPER: Let's be honest about it, it's interesting.

Stephanie, one of those quotes that has been dug up by Republicans is Chuck -- I mean, Chuck Schumer -- Chuck Cruz, I just invented -- that's a scary character.

In 2007, Chuck Schumer said -- and this is obviously a year before, more than a year before President Bush left office, the Senate should block any nominee Bush might make to the Supreme Court. So there is a bit of goose gander going on here.

CUTTER: Right. Well, Schumer answered this himself. He wasn't saying that they're going to outright stop with no hearing, no vote. And they should only do that for right-wing nominees.

What Republicans are doing right now is unbelievably unprecedented and it is going to turn on them in this election. I think that's what you're seeing with Thom Tillis and Chuck Grassley.

People are coming to their senses saying, "Hey, wait a minute, shutting down the government has never worked out for us before and now we're about to shut down the third branch of government, the Supreme Court of the United States just for our own partisan reasons, that's crazy." That's what I think is happening. Republicans are starting to come to their senses.

TAPPER: Jeff, truth squad this for a second, is this unprecedented? Has this -- I mean, I was under the impression that quite often in the fourth year of a president's term or the eighth year, if it's two terms, the Senate, if it's controlled by the opposition party, does kind of stop confirming their judges?

TOOBIN: Right. There's something called the Thurmond Rule, which is an informal tradition at the Senate that the president's judicial nominees pretty much stop around the time of the political conventions. However, you will notice, the political conventions haven't happened yet. And, the Supreme Court only has nine members, unlike these other courts where other people can sort of pick up the slack.

I mean, it is unusual, especially in recent years, for a Supreme Court vacancy to take place in the eighth year of a president's tenure. The most -- the closest analogy is in 19 -- late 1987, after the defeat of Robert Bork and Douglas Ginsburg, President Reagan nominated Anthony Kennedy to the Supreme Court and he was confirmed in February of 1988, which was in the last year of President Reagan's term.

And, the chairman of the Judiciary Committee at the time was Joseph Biden, a Democrat. So, you know, you can say that there was a Republican nominee confirmed in the last year of a Republican presidency, but no situation is precisely analogous, and this is mostly about power, it's not about principle.

TAPPER: Right, and ...

TOOBIN: The Republicans can stop them because they can.

TAPPER: Right. And obviously, that was after the whole Robert Bork situation and Doug Ginsburg, God forbid, smoked marijuana years before and he was pulled as well.

Amanda, I don't doubt that this kind of action will be very popular among Republican rank and file.

[16:50:00] Do you -- somebody who wants a Republican to win the White House in November, do you not worry about how it might play among moderates, independents in Pennsylvania, Ohio, et cetera?

CARPENTER: I have zero worries because I think it's very compelling to take this case to the American people and say the next president will decide the direction of the court. This isn't just a regular seat. This will change the balance of the court. It's far too important to be decided in an election year. I don't really care about the Thurmond Rule, it is important. But, let the American people decide. A year isn't too long to wait.

The courts will continue to function. All decisions that will be preferable (ph) be upheld by the lower court.

Our Democracy will survive this and it's far better to let people have a chance to weigh in on it in the next big election than to let it be decided, you know, by maybe a 68 vote in the Senate.

CUTTER: So, I have a question about that. When a president is elected, and the president was overwhelmingly elected in 2008 and 2012, that's the presidential election, do you serve for a full four years until January 20th when a new president comes in?

CARPENTER: Absolutely. He actually has a right to nominate someone and make the case, but the Senate also has a right to exercise its power ...

(CROSSTALK)

CARPENTER: (Inaudible) exercise its power ...

CUTTER: ... to review the president's nominees and vote on them.

CARPENTER: Yeah, and the Senate has a constitutional duty to provide advice and consent. Consent mean ...

CUTTER: So they know?

(CROSSTALK)

CUTTER: So should they take it to a vote, then?

CARPENTER: They have no obligation to take it to a vote.

CUTTER: OK. Well then, how are they advising and consenting?

CARPENTER: They are saying, "We reject this nominee outright (ph)."

CUTTER: Look, at the end of the day, this is going to hugely impact the balance of the Senate ...

CARPENTER: Absolutely.

CUTTER: ... in 2016. You have a number of Republicans running in states that Obama won and a number of -- in blue states and ...

TAPPER: A bunch of them has come out in favor of this ...

CUTTER: Exactly.

TAPPER: ... block -- what do you want to call it, blocking.

CUTTER: So, they cannot win ...

TAPPER: Is there a neutral term for it?

CUTTER: They cannot win in the states without pulling in independents and swing voters. Independents and swing voters, you know, the one thing that they hate, shutting down the government, obstructing the government ...

TAPPER: President Obama is speaking right now. Let's go to him.

BARACK OBAMA, PRESIDENT OF THE UNITED STATES: I have hosted foreign leaders here before. It's quite another to host leaders from 10 nations at the same time, and I want to thank everybody who helped make the summit such a success.

For 50 years, leaders and people across Southeast Asia have worked together, through ASEAN, to advance their mutual security, prosperity and dignity.

For decades, the United States has been a proud partner with ASEAN. And this summit has built on the unprecedented cooperation we forged over the past 70 years, as I described yesterday.

The spirit working together on behalf of mutual interests and mutual respect, guided our work over the past two days. And so I especially want to thank my fellow leaders from the ASEAN countries for being here, for their commitment and for the progress that we've made together.

One of my main messages over the past two days has been the commitment of the United States to ASEAN and its people. That commitment is and will remain strong and enduring. With our strategic partnership, we have a framework to guide our ties for decades to come.

Here at Sunnylands, we agreed to a number of key principles, including the principle that ASEAN will continue to be central, in fact, indispensable to peace, prosperity and progress in the Asia Pacific.

When ASEAN speaks with a clear, unified voice, it can help advance security, opportunity and human dignity, not only for the more than 600 million people across ASEAN, but for people across the Asia Pacific and around the world. And I'm pleased that here at the summit, ASEAN's strong voice allowed us to make progress on multiple fronts.

First, we agreed to do more together to encourage the entrepreneurship and innovation that are at the heart of modern competitive economies. We had an excellent discussion with a number of pioneering business

leaders who reiterated the recipe for attracting trade and investment. Rule of law, transparency, protection of intellectual property, efficient customs, modern infrastructure, e-commerce and the free flow of information, support for small and medium-sized businesses and perhaps, most importantly, investment in people, investment in strong schools to educate and train the next generation.

Around the table, there was widespread recognition that this is the path ASEAN countries need to continue on. As they do, it will create even more opportunities for trade and investment between the U.S. and ASEAN countries.

I affirm our strong support for the ASEAN community and pledge that the United States will continue to be a partner in ASEAN's efforts to integrate economies and reduce barriers to trade and investment.

[16:55:03] I'm also announcing a new initiative, U.S.-ASEAN Connect, a network of hubs across the region to better coordinate our economic engagement and connect more of our entrepreneurs, investors and businesses with each other.

We're also doing more to help aspiring innovators in the region, learn English, the international language of business. And I reiterated that the Trans-Pacific Partnership, which includes four ASEAN members, can advance economic integration across ASEAN in such stronger rules for trade throughout the Asia Pacific.

To that end, we've launched a new effort to help all ASEAN countries understand the key elements of TPP, as well as the reforms that could eventually lead to them joining.

Second, with regards to security, the United States and ASEAN are reaffirming our strong commitment to a regional order where international rules and norms and the rights of all nations, large and small, are upheld.

We discussed the need for tangible steps in the South China Sea to lower tensions, including a halt to further reclamation, new construction and militarization of disputed areas.

Freedom of navigation must be upheld and lawful commerce should not be impeded.

I reiterated that the United States will continue to fly, sail and operate wherever international law allows, and we will support the right of all countries to do the same.

We will continue to help our allies and partners strengthen their maritime capabilities and we discussed how any disputes between claimants in the region must be resolved peacefully through legal means, such as the upcoming arbitration ruling under the U.N. Convention of the Law of the Seas, which the parties are obligated to respect and abide by.

Third, I made it clear that the United States will continue to stand with those across Southeast Asia who are working to advance rule of law, good governance, accountable institutions, and the universal human rights of all people.

We continue to encourage a return to civilian rule in Thailand. We will sustain our engagement with the people of Myanmar, as a new president is selected and as they work to implement the ceasefire agreement and move forward with national reconciliation.

Across the region, we'll continue to stand with citizens and civil society and defend their freedom of speech, of assembly and of the press.

No one, including those in political opposition, should ever be detained or imprisoned simply for speaking their mind. That only stymies progress, only makes it harder for countries to truly thrive and prosper.

And finally, the United States and ASEAN are doing more to deal with transnational challenges together.

I offered our assistance to help ASEAN countries better leverage INTERPOL data to prevent the flow of foreign terrorist fighters.

We agreed that implementing the Paris climate change agreement, including helping developing countries adapt to and mitigate, the impacts of climate change will be critical and it will enable them to leap ahead to new and affordable clean energy.

As we pursue our sustainable development goals, we're launching a new competition, an innovation challenge to encourage students across ASEAN to develop new solutions to boost agriculture.

We're moving ahead with our global health security agenda to prevent future epidemics. And I pledged additional U.S. assistance to help ASEAN combat the horror of human trafficking.

So, to sum up, I believe the summit has put the U.S.-ASEAN partnership on a new trajectory that will carry us to even greater heights in the decades ahead.

America's foreign policy rebalanced to the Asia Pacific, including Southeast Asia. We'll continue to be a foreign policy priority of my presidency.

I look forward to visiting Vietnam for the first time in May and to becoming the first U.S. president to visit Laos when it hosts the East Asia Summit in September.

I'm confident that whoever the next president may be will build on the foundation that we've laid, because they're strong, sustained bipartisan support for American engagement in the Asia Pacific region.

And through our young Southeast Asian leader's initiative, our investment in young people, in their business success and civil society and grassroots leaders across the region, I believe, will further bind us together in a spirit of partnership and friendship for many years to come.

So, with that, let me take a few questions and I'm going to start with Darlene Superville of the Associated Press. Where is Darlene? There she is.

DARLENE SUPERVILLE, ASSOCIATED PRESS: Thank you, Mr. President.

My question is about the Supreme Court.

OBAMA: I'm shocked.

SUPERVILLE: What recourse do you have if Leader McConnell blocks the vote on your Supreme Court nominee?

[17:00:00] And do you think that if you choose someone moderate enough that Republicans might change course and schedule of vote?

And as you consider that choice and who to nominate, what qualities are important to you in this diversity among them? Thank you.