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The Lead with Jake Tapper

Interview With Nebraska Senator Ben Sasse; Interview with Virginian Rep. Dave Brat; Lawmakers Grill Trump's Supreme Court Pick. Aired 4:30-5p ET

Aired March 21, 2017 - 16:30   ET

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

SEN. AL FRANKEN, D-MINNESOTA: He's not here. I'm just quoting him, that's all.

[16:30:00] I think the White House does see judges as a part of this deconstruction. I think that they're seeing your nomination as an important step for achieving this goal. You've shown a willingness to disregard agencies' interpretations of statutes. You did that in Transam Trucking, with the Department of Labor regulation, for example. You've done it in other cases as well. And in August you wrote that concurrence to your own unanimous opinion in which you described Chevron, the Supreme Court's landmark administrative law case, as quote, permitting executive bureaucracies to swallow huge amounts of core judicial and legislative power. You wrote quote, maybe the time has come to face the behemoth.

Now generally speaking, as we've discussed, Chevron provides the courts should defer to an agency's interpretation of the federal laws that it is tasked with administering. When Congress passes laws that require agencies to implement them, say by issuing safety standards for children's toys or rules that ensure that pharmaceuticals or medicines are safe, those agencies turn to experts to develop those policies. Experts like scientists at the FDA, for example.

I think that's a good thing. We want experts doing the work. What we Senators don't want to be doing is deciding how much lead can be in your water, or what the distance in baby -- the slats are in a baby's crib. I don't trust Senator Koons to do that.

Chevron provides that when agencies do that, courts should be wary of stepping in to overrule them without a good reason. This is Scalia's, agrees with Chevron. But I'm concerned that this administration sees common sense health and safety rules as a burden on big business. I'm concerned that they want to appoint pro corporate judges who are willing to substitute their own judgment on these matters for those of experts. Do you believe that Chevron was wrongly decided?

GORSUCH: Senator, I'm a circuit judge. I don't tell my bosses what to do. I do, when I see a problem, raise my hand and tell my bosses I see an issue here. And I did in that case. Not because of any big corporate interest, but because of what happened to Mr. Gutierrez, an undocumented immigrant in this country. And the whipsaw that he was placed in by a change in law affected by an administrative agency, a bureaucracy, overruling a judicial precedent, and telling him he now had to wait not 10 years out of the country but 14. Something like that.

And, Senator, that's part of my job to say these things when I see problems like that. It's a due process problem I saw. And no one, Senator, is suggesting that scientists shouldn't get deference or chemists or biologists. Section 706 of the APA (ph) is quite clear that on facts --

FRANKEN: But you want to address this behemoth. And that suggests that the comments made by Mr. Priebus and Mr. Bannon know exactly what they -- what you think about these issues. And I think some of my colleagues on the other side of the aisle do as well.

This is a big deal. During the entire 114th Congress, Chevron deference was mentioned only twice on the Senate floor. But between the announcement of your nomination on January 31 and last week, that decision was mentioned 30 times by 4 different Senators. Each of those four senators discussed the case while speaking in support of your nomination. Three of those senators are members of this committee.

So I know you're choosing your words very carefully, and I know you're trying not to signal how you might rule in certain cases, but I think some of those signals have already been sent. Thank you.

(UNKNOWN): Senator Sasse --

SASSE: Thank you, Mr. Chairman. Judge -- I -- you mentioned --

[16:34:35]

JAKE TAPPER, CNN ANCHOR: You are just watching the confirmation hearings for Judge Neil Gorsuch, President Trump's pick to replace the late Justice Antonin Scalia on the United States Supreme Court.

Gorsuch has so far steered clear of revealing how he might rule on any potential case that might come before the high court.

We have lots to talk about with my panel. Let's dive right in.

We have with us CNN legal analyst Jeffrey Toobin, Supreme Court biographer Joan Biskupic, and "New York Times" White House correspondent Maggie Haberman.

[16:35:04]

Thanks, one and all, for being here.

So, Jeff, let me start with you.

How do you think Judge Gorsuch is doing on day one of questioning? There are a lot of Democrats trying to get in there, trying to draw blood. Any stumbles? Any star-studded moments so far?

JEFFREY TOOBIN, CNN SENIOR LEGAL ANALYST: I think he has done very well. I mean, the overwhelming fact about this nomination is that there are

52 Republicans in the United States Senate, and there is nothing that has come up in this hearing that suggests to me any of those votes are in jeopardy.

And that means he gets confirmed. Now, we can talk about how many votes he might get and whether there will be a filibuster or not, but there have certainly been a few dramatic exchanges.

In fact, Jake, I think you are lucky, because Al Franken's examination of Judge Gorsuch, which was just completed, was frankly the most dramatic moment of the day.

But drama is not the same as a threat to his nomination, and I don't see any of those that have come to light today.

TAPPER: And, Joan, one of the things that Senator Franken of Minnesota was asking Judge Gorsuch about had to do with his decision as a judge in a case, TransAm Trucking, in which he ruled that a company that had fired their employee for abandoning his truck in freezing temperatures -- he said he did so because he was so cold -- that they did nothing illegal in firing him.

Democrats say that this shows that he is pro-big business, instead of for the little guy.

Do you think this is an issue that actually might affect the vote count at the end of the day?

JOAN BISKUPIC, CNN LEGAL ANALYST: Probably not, but the way that Senator Franken did it was quite effective, saying, how would you feel if you were that trucker? What would you have done if you were with that rig?

Jake, as you know, a few other senators have brought up that case, but they didn't do it with as much kind of cinematic detail that put the viewers right there on the spot. And I actually think it put Judge Gorsuch on the spot.

He's been a little bit impatient with some of the questioning. He's tried to defend himself, and he has done a fine enough job. But I think what he doesn't appreciate is when they really drill down like this. And we saw it a couple of times with Senator Klobuchar, Senator Durbin and Senator Whitehouse, to a certain extent, where they pushed him not just asking him about a particular case, but then drilling back and back to his particular question.

TAPPER: And, Maggie Haberman, one of the other things that the president has been able -- I'm sorry. One of the other things that the president's nominee has been facing in terms of questions has to do with whether or not he is, instead of this impartial judge, as he has described himself, a fair judge, over the last 10 years, Al Franken, Senator Franken was talking about the time in his life when he was very much steeped in the world of politics, working for the Justice Department, trying to get a job through Ken Mehlman, who was then chairman of the Republican National Committee. MAGGIE HABERMAN, CNN POLITICAL ANALYST: Franken was working very,

very hard, I think, to demonstrate there is a political undertone to this.

There is always a political undertone to any Supreme Court nominee, and we know this. But this is such a partisan moment that essentially you're going to see the Democrats, I think, realize that it is very likely he will be confirmed, barring something unforeseen in the next couple of days.

They want to demonstrate sort of a pure political case that could be harmful both troops the president and for the president's agenda and that could be -- have any decisions seen through that lens. I think you will hear more of that.

He does have a very long record, Gorsuch, of being in politics, working for the Justice Department. You heard Franken raise gay marriage, which obviously was a very dramatic decision in the court over the last several years.

There is some concern that this will be revisited, even though the president has signaled that he has no desire to do that. And so I think that you are trying to see Democrats lay essentially a predicate to make Gorsuch appear political, no matter what.

TAPPER: And, Jeffrey, obviously, Democrats, it's Festivus for them, in the sense that they have this airing of grievances, not inappropriately so, having to do with the way that President Obama's Supreme Court nominee, Judge Merrick Garland, who never even got a hearing, how he was picked.

Judge Gorsuch time and time again refusing to weigh in on whether or not that was appropriate, other than to praise Judge Garland effusively as an outstanding judge. I suspect that even after Judge Gorsuch is Justice Gorsuch, when there is another nominee that President Trump brings up before the senators, we're going to keep hearing about Merrick Garland.

TOOBIN: We're going to keep hearing about him until February 14, 2000 -- I'm just doing it -- 2020 -- 2019, because that's the day in the Trump presidency that is the equivalent of the day in the Obama presidency in which time he -- that Justice Scalia died.

[16:40:08]

The McConnell rule will be invoked by Democrats, that you can't confirm anyone even if there are 11 months left in a presidency. But there is nothing the Democrats can do. The hearing is on its way. The Republicans are moving forward.

They are outraged about the treatment of Merrick Garland. But that -- they don't have the votes. They don't have the votes to stop Neil Gorsuch now. They can be aggrieved about Merrick Garland. They can even be right perhaps, but when you don't have the votes, it doesn't matter in the Senate. TAPPER: And, Joan, Judge Gorsuch is doing his best to say that he

doesn't lean any way when it comes to how he rules. It's really all about the law, entirely about the law.

You can point to a case where he sides with big business, and he can point to a case where he sides with the little guy, the -- quote, unquote -- "little guy."

Has he revealed anything about his judicial philosophy in how he might rule on certain hot-button cases having to do with gun rights or abortion?

BISKUPIC: Very little, Jake.

And this is how he's done it. He says, you know, I want to send a signal to litigants that they will be treated fairly. If I tip my hand at these hearings, if I promise anything, I won't be treated fairly.

And it's interesting you mention abortion, because, as we know, President Trump has said that he was going to nominate an individual who would want to reverse Roe vs. Wade, the 1973 landmark that made abortion legal nationwide.

And he said, I would have walked out of the room if President Trump had asked me to do that or to ask me my position on it. Senator Feinstein tried to get the nominee to say it was super precedent, that it would never be overturned. He would not say that, but he did acknowledge that it was a 40-something-year-old ruling.

But I have to say he's done a pretty smooth job at avoiding saying much, but this is exactly what usually happens. We did see a little bit of Senator Franken getting under his skin. And I'm wondering if, as this goes on later tonight, he might reveal a little bit more just under the pressure.

(CROSSTALK)

TOOBIN: Jake, if I can just add one thing, I agree that he's done a good job.

But even by the really rather pathetic standards of disclosure in these hearings, this has been very little disclosure. We really have not learned anything about judicial philosophy. He sort of said he was an originalist, but he sort of said everybody is an originalist.

He did not discuss any cases at all...

TAPPER: Right.

TOOBIN: ... in terms of whether they were good law or bad law, even though the whole business of being an expert in constitutional law is to have opinions about which cases are good cases and which cases are bad cases.

TAPPER: Right. (CROSSTALK)

TAPPER: So, let me just bring in Maggie for a final thought on this.

He does seem to be handling the senators' questions rather well, although I do agree Senator Franken seems to have gotten under his skin a bit.

HABERMAN: I think that's right. And I think you saw him be very candid, where he said that there is a lot that makes him uncomfortable about this process, and then he accentuated the words a lot.

There are things about he has been nominated, I think, about dealing with this White House. He has signaled that pretty clearly. And I thought there were points earlier this morning when he seemed like he was getting agitated at some of the questioning when it was repetitive.

But I do think overall there has not been anything that has harmed him.

TAPPER: All right, Maggie Haberman and Jeffrey and Joan, thank you so much.

There are a lot of things President Trump says and does that have Republican senators running away from reporters, not wanting to make a comment. But the nomination of Judge Gorsuch for the Supreme Court, that is not one of them.

Today was his second day of confirmation hearings.

And, earlier today, I spoke with one Republican involved in today's hearing.

(BEGIN VIDEOTAPE)

TAPPER: And joining me now is Republican Senator Ben Sasse of the great state of Nebraska. He was one of the questioners of Judge Gorsuch during today's confirmation hearing.

Senator Sasse, thanks so much for joining us.

SASSE: Thank you, Jake. Good to be here.

TAPPER: So, I think a lot of pundits are giving Judge Gorsuch very high reviews for his performance today.

Take a listen to one interesting moment when Judge Gorsuch was asked about Roe v. Wade.

(BEGIN VIDEO CLIP)

GORSUCH: Roe v. Wade, decided in 1973, is a precedent of the United States Supreme Court. It has been reaffirmed. So a good judge will consider it as precedent of the United States Supreme Court worthy as treatment of precedent like any other. (END VIDEO CLIP)

TAPPER: The only question I have about this is that, I don't know if you read the book, but Judge Gorsuch wrote a book against assisted suicide.

And while the book in no way specifically talks about abortion, I think it's fair to wonder, to read the book and wonder how much the moral arguments he makes about life perhaps could apply to that.

For instance, he writes in favor of bans on assisted suicide and Euthanasia, quote, on the basis that human life is fundamentally and inherently invaluable and that the intentional taking of human life by private persons is always wrong, unquote. I don't know if you read the book, like I said, but I wonder, not - is it unfair to wonder if he might apply those moral views on life to his rulings if abortion were to come up?

BEN SASSE, UNITED STATES SENATOR FROM NEBRASKA: Great and fair questions, for us to deliberate about. As long as we make a very clear delineation of two different things. So, one, really hard and important questions to have About the vulnerable and end of life and beginning of life questions. I am a solidly prolife guy. I cared deeply about this issues and I'd like us to be talking about it more in American life to be honest. But that is a different thing than what he's interviewing for today. The President has nominated him to serve in the Supreme Court and a judge's job is not to make law. A judge's law - job is to defend all of our constitutional rights and the bill of rights in light of the precedential questions that he's been talking about.

So, he has another book besides the one you're talking about. Actually, I haven't read that, I've read in it. I've seen excerpts in his book about assisted suicide and what not. But he has another book, I'm starting (INAUDIBLE) on the role of president, and that's been a key part of a lot of our hearing questions today. And it's pretty clear that this guy isn't running for the Supreme Court as If it's an election or a campaign so he could be a super Senator or super precedent. He believes in law as he receives it, not laws he wishes It to be.

TAPPER: You've been - you've been critical of President Trump particularly when he was the republican nominee. I wonder, how confident are you that judge Gorsuch, if confirmed will stand up to the Trump White House if they exceed bounds of the executive branch powers?

SASSE: 100 percent confident. I believe that judge Gorsuch is a judge's judge. He's a guy who believes in three separate but equal branches of government. The founders built this amazing document, the constitution that's about principle pluralism and about limited government and about distinguishing and dividing the three different - what the founders called departments, we call branches of government. But fundamentally the distinction between legislation and execution or administration of the laws is a fundamental part of our constitutional architecture and this guy believes in all three branches. And I don't think the guy has any concern the day after he's confirmed whether a democrat or republican put him on the court. He cares about the three branches, not the two parties.

TAPPER: Let's turn to the subject of President Trump and the Russian situation. On the day that President Trump first made the false wiretap allegations against President Obama, you released a fairly powerful statement that read in part, quote, "We are in the midst of a civilization warping crisis of public trust and the President's allegations today demand a thorough and dispassionate attention of serious patriots." Well, it did receive such attention. It is found to be completely unsubstantiated and was even disputed, I would even go so far as to say rebuked in some ways by the Head of the FBI. Now, I know that your criticism of the lack of public trust goes far beyond President Trump. But, do you think that the leader of this nation, the leader of your party understands the crisis that you speak about so eloquently, and how concerned are you that he's contributing to it?

SASSE: Yes. I don't know really what motivates a lot of the things that the President says and does and prioritizes. For instance, he nominated a great guy to be on the Supreme Court and that should be dominating all the headlines of this week. And sometimes the White House gets in its own way and changes the subject from things they should be wanting to talk about, like Neil Gorsuch which, again, great nomination by President Trump. And then we get off onto other issues.

Here's what I know. I know that America as a republic can only survive if we are passing on to the next generation a sense that the most important things in life are not primarily political. They're neighborhoods and schools and churches, and synagogues and workplaces, and the PTA and the Rotary Club. And if we believe those things, then we have to have a government that has a framework forward of liberty that we build and pass on together. And that requires shared facts. The President and the Congress by funding and declaring war at times obviously, but the President as Commander and Chief is regularly going to have to send our sons and daughters in harm's way. In battles against Jihadist and in the future of cyber warfare, it's critically important that we have shared reservoir of public trust. And I would love to see more people in Washington taking a ten and 20-year perspective instead of a new cycle long perspective.

So, yes, you're right. I'm worried about civilization warping crisis of public trust. Sounds like quite a mouthful there. But that's how I feel it in my bones when I worry at night about the America that we're passing on. That isn't about the last two months. That isn't about the last year's election cycle, but it's about something that's decades long when we have a decreasing sense of shared facts. And obviously since the end of the cold war, 27 years ago, we face different kind of enemies. We need our Intelligence Community do really important and hard stuff for us abroad and we need a Commander in Chief that goes out and tells the American people the story and the service of those families that are involved in the intelligence community. I want us to be focusing on those things that should bring us together because we have a lot of work to do.

[16:50:13] TAPPER: Senator Ben Sasse of Nebraska, thank you so much, Sir. Appreciate it. SASSE: Thanks, Jake.

TAPPER: President Trump making his closing argument on the Healthcare bill. Did he change minds of any skeptical republicans today? That story next.

(COMMERCIAL BREAK)

TAPPER: Welcome back to LEAD. Our "POLITICS LEAD" now, on perhaps the second most consequential day of the Trump administration so far. President Trump is on something of a charm offensive on Capitol Hill, slapping backs, twisting arms, ahead of Thursday's vote on the Healthcare bill in the House of Representatives in a meeting with House Republicans earlier. He painted a dark picture suggesting that voting against the bill could turn their supporters against them on Election Day. Let's bring in one of those Republicans who has not been convinced to support the bill, Congressman Dave Brat. He's a Republican of Virginia. Congressman, thanks so much for joining us. Appreciate it.

DAVE BRAT, UNITED STATES CONGRESSMAN FROM VIRGINIA: Hey, Jake, good to be with you. Thank you.

TAPPER: So, the President spoke with House Republicans today to try to seal the deal for this legislation. He's obviously a famous deal maker.

BRAT: Yes.

TAPPER: What was he like behind closed doors, was he convincing?

[16:55:00] BRAT: Oh yes. I mean, he's great, he's a good salesman. He put the hard sell on. He was riffing and having fun, carried out about 30, 40 minutes going overall the issues in the world but mainly on the Healthcare. But he is a business guy and that's - my main objection still is just we got to bring the price down. So, the good businessman wants product, price, quality, service, that's the basics, Right? If we go forward with our bill with price increases going up 15 or 20 percent, from the baseline from ObamaCare going up 25 percent, the voters are not going to be happy. I cannot go back home with that product.

And, so, we're just asking for one big lift, at the end of the day, we've got to get the insurance regulations run from the federal government, right? The federal government mandates of insurance. So, a young person can't go out and buy an inexpensive premium. And if we can get that one lift, that's called bucket 2, the insurance rigs, if we can put that into the bill, I think we've got a yes vote and we're ready to roll and we make Trump a successful President. If we don't fix that, he'll be in the death spiral in two years as well. We don't want that. We want a successful President Trump and we've got to bring the price from 25 percent increases down to zero and flatten that curve.

TAPPER: So, President Trump says, I think you disagree that if - that if you and your colleagues don't vote for the bill, you might lose your seats in the next election.

BRAT: Yes, no. I mean, that's all else equal, right? There is no danger of not doing what we promised. We said we're going to repeal ObamaCare. Both right wing and left wing, liberal think tanks, both agree we're maintaining the entire structure of ObamaCare. Right? It was on front page of national journal. I don't think there is any agreement. And so, that's a heavy push on us, right? I - we don't want to go with federally run one-sixth of the economy. So the major piece that we got to see is that the price comes down. And so, that's the only sticking point. We can fix that in a matter of weeks, if not by this Thursday, and then we're all good. We move on, we do tax reform, get the economy rolling again, reduce regulations and we've got a win-win.

TAPPER: One source told me that in the meeting, President Trump turned to the Chairman of the Conservative House Freedom Caucus, Congressman Mark Meadows and said something along the lines of I'm going to come after you for not supporting the bill, but I know I won't have to, because I know you'll vote yes. How did you interpret those comments, was it a joke, was it threatening?

BRAT: Yes, no. And that's - the trick with the press is the context meant everyone in the room is cracking up. President Trump is laughing, Meadows is laughing. He stands up, you know, enjoys the moment. We all know there's tension, right? We all want to get to yes this Thursday. Meadows wants to get to yes. We all want to get to yes, but we cannot go back home without fixing the price piece. That's the one - and there's a lot of confusion and technicalities, a lot of people are saying you can't get it through the Senate with the Bird Rule, so just take what you can do now. And do part two and three later. You cannot do part two and three later. That will require 60 votes in the Senate and the secretary will have to do the insurance rigs on his own. And then in four years, if you get a new secretary, we're going to be playing bumper cars with one-sixth of the U.S. economy. That is not the way to run an economy. I taught economics for 20 years and I think, people trust the - hey, we're trying to a good job and get this right.

TAPPER: So Congressman, Speaker Ryan has made some changes in the bill -

BRAT: Yes.

TAPPER: - to try to win support for it. There were changes obviously that the New York Republican Delegation liked.

BRAT: Yes.

TAPPER: Would you have any issues with the changes being made?

BRAT: No. A lot of the changes are made, but, again, the issue is, right, it's kind of horse trading at the federal level. That's what I don't want to see. When you're dealing with one-sixth of the - of the U.S. economy, you don't want to see horse trading at the federal government because all of our mandatory programs right now, right? This is going to create another sort of entitlement. Social Security and Medicare are both insolvent in 2034, we're $100 trillion light on mandatory promises to the young people already. Plus 20 trillion in debt on the young people. So people say, hey, I got 60 billion out of this for my state. Oh, really? Where did that come from? Like from heaven? It's comic - we don't have any money up here to give unless we add to the debt. And, so, when you provide that context to the voter, then they go, hey, you know, they're making - some of the economists up there are making some sense. Let's get it straight and get this economy moving the right way.

TAPPER: Congressman Dave Brat from the Great Commonwealth of Virginia. Thank you for so much, Sir. Appreciate it as always.

BRAT: Thank you, Jake. Great to be on.

TAPPER: That vote in two days sure is going to be interesting. Be sure to follow me on Facebook and Twitter @jaketapper or you can tweet the show @theleadcnn. That's it for THE LEAD today, I am Jake Tapper. I now turn you over to one Mr. Wolf Blitzer, he's in "THE SITUATION ROOM" back in Washington. Thanks for watching.

WOLF BLITZER, CNN THE SITUATION ROOM HOST: Happening now, breaking news, art of the sell. President Trump goes up to Capitol Hill to find votes for the GOP Healthcare Bill. Warning republican critics that If they don't come up, they don't come through, they could lose their seats in the next election. No promises.