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The Lead with Jake Tapper

Roe vs. Wade Doomed?; Supreme Court Justice Anthony Kennedy Retiring. Aired 4-4:30p ET

Aired June 27, 2018 - 16:00   ET

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

[16:00:09]

JAKE TAPPER, CNN ANCHOR: Good afternoon. Welcome to CNN. I'm Jake Tapper with THE LEAD.

We begin with the major breaking news in our politics lead today.

Supreme Court Justice Anthony Kennedy, the man known as the centrist swing vote on the highest court in the land, today announced he is retiring from the Supreme Court.

His retirement leaving President Trump with a decision that will alter the highest court in the land for decades and one that frankly could alter laws in the United States of America and your lives.

Kennedy was the pivotal swing vote, siding with the majority in 5-4 votes over and over in his three decades on the bench. A more conservative justice in that Kennedy seat, well, he could change what is legal and what is illegal in this country.

Though Kennedy most often voted conservative, he also voted with the more liberal justices on issues such as same-sex marriage and the death penalty quite often, and he was the swing vote upholding the Roe vs. Wade decision on abortion.

Depending on who replaces Kennedy, your lives could very well change because of today's news.

Kennedy writing in a letter he hand-delivered to President Trump today that he will leave the court effective July 31 this year, giving President Trump the opportunity to name a successor.

And Senate Majority Leader Mitch McConnell this afternoon saying that the Senate will vote to name the successor this fall, thus setting up what could no doubt turn into a brutal partisan battle right before the midterm elections. Buckle up, folks.

We have our team of reporters covering this from the White House to White House and Capitol Hill, and my legal and political experts here with me to break this down in this incredibly consequential moment in American history.

We are going to start off with CNN justice correspondent Jessica Schneider.

And, Jessica, why announce the retirement now? Why today?

JESSICA SCHNEIDER, CNN CORRESPONDENT: Yes, Jake, that is exactly what has legal observers really scratching their heads here.

We have seen a sharply divided court in the opinions especially released this week. And while Justice Kennedy has sided with the conservatives in more than a dozen cases this term, including in yesterday's opinion upholding the travel ban, in his concurring opinion yesterday about the travel ban, he seemed to issue a subtle shot at the president, writing that words and actions of public officials matter.

But now, of course, the court's moderating voice, well, he's stepping down.

(BEGIN VIDEOTAPE)

ANTHONY KENNEDY, ASSOCIATE JUSTICE, U.S. SUPREME COURT: The whole object of the judiciary is to ensure stability, continuity, and so we pride on the fact that there is little change.

SCHNEIDER (voice-over): In a move that could set in motion a seismic shift to the right on the highest court in the land, Justice Anthony Kennedy is retiring after more than 30 years on the bench.

KENNEDY: We as a people are bound together

SCHNEIDER: Kennedy, now 81, swore in the newest justice to join the court last year, his former clerk Neil Gorsuch.

While President Trump replaced one conservative with another when he chose Gorsuch to take Justice Antonin Scalia's seat, he now has the opportunity to move the court significantly to the right when he replaces Kennedy, a centrist.

KENNEDY: The cases swing. I don't.

(LAUGHTER)

SCHNEIDER: Kennedy has never liked being labeled the court's swing vote, but for years it has been his vote that often decided the outcome of cases in a closely divided court.

Kennedy, a Ronald Reagan appointee, was sworn in, in 1988.

KENNEDY: I shall honor the Constitution.

SCHNEIDER: He sided with his conservative colleagues on issues such as gun control and voting rights. He authored the majority opinion in Citizens United, striking down election spending limits for corporations.

GEORGE W. BUSH, PRESIDENT OF THE UNITED STATES: So help me God.

KENNEDY: Congratulations.

(CHEERING AND APPLAUSE)

SCHNEIDER: And in Bush v. Gore, he helped clear the way for George W. Bush's presidency.

But to the dismay of those on the right, Kennedy joined the liberals on the court on abortion, affirmative action and the death penalty. His most lasting legacy will likely be in the area of gay rights. In 2015, Kennedy penned a landmark opinion clearing the way for same-sex marriage nationwide.

As time proved him to be one of the most unpredictable justices, personal dignity and liberty were always themes in Anthony Kennedy's jurisprudence.

(END VIDEOTAPE)

SCHNEIDER: And Justice Kennedy announced his retirement news to his fellow justices after they issued the final opinions of the term this morning.

And, Jake, Justice Kennedy has said that his family was willing to let him stay on the bench. But he said ultimately his desire to spend more time with them led him to this decision to step down -- Jake.

TAPPER: All right, Jessica, thanks so much.

White House counsel Don McGahn is expected to lead the search for a new justice, which will begin immediately, we're told.

Let's bring in CNN's Kaitlan Collins, who is at the White House.

And, Kaitlan, Kennedy and the president talked for about half-an-hour today, the president said. What were they talking about?

KAITLAN COLLINS, CNN WHITE HOUSE CORRESPONDENT: They did.

And it was about a half-hour before the news broke that Kennedy was going to retire. And President Trump sounding surprised that reporters didn't Kennedy enter the White House at any point.

But he did say they had a conversation. He said he had tremendous respect for Kennedy, but he also said he asked him who he thought he should replace him with on the court and that Kennedy made some recommendations to him.

[16:05:03]

But the president didn't disclose who it was that Kennedy recommended to him, but it does seem that there is a great deal of excitement in this White House that they are going to have another chance to nominate someone to the Supreme Court -- Jake.

TAPPER: And, Kaitlan, do we have any idea who President Trump might be considering as a replacement?

COLLINS: Well, President Trump made some big news on that during that spray in the Oval Office, saying he is going to choose from that list of 25 potential nominees that the White House put out last fall.

Here is what else he said about that.

(BEGIN VIDEO CLIP)

DONALD TRUMP, PRESIDENT OF THE UNITED STATES: We have a very excellent list of great, talented, highly educated, highly intelligent, hopefully tremendous people. I think the list is very outstanding. It will be somebody from that list. So we have now boiled it down to about 25 people.

(END VIDEO CLIP)

COLLINS: Now, that list is pretty similar to the list that the president used when he picked Neil Gorsuch, his last Supreme Court nominee, of course.

But there are five names that they added to it in November when they published that list seemingly out of nowhere with no retirement announcements just yet, still months to go before Kennedy would announce his retirement.

But we do know that on that list, a few names, Thomas Hardiman. That is someone who came down close to the wire with Neil Gorsuch for that nominee, but also Brett Kavanaugh, someone who clerked for Justice Kennedy, and also Senator Mike Lee of Utah, so all people to keep an eye on as the president moves forward.

He did make clear, Jake, that he wants to get this done as soon as possible.

TAPPER: All right, Mike Lee saying earlier today that he wouldn't turn it down.

Kaitlan Collins, thanks so much.

My panel of experts joins me now.

Jeffrey Toobin, let's start with you.

Explain to our viewers how incredibly significant this retirement is. This is going to change the court. It's going to change their lives.

JEFFREY TOOBIN, CNN SENIOR LEGAL ANALYST: Any Supreme Court nomination is important, but this one is the most important because it will change the partisan makeup of the court.

Anthony Kennedy, as you said, was mostly with the conservatives. But on a couple of key issues, most notably abortion rights, he was the vote that was keeping Roe v. Wade the law of the land.

That is done. Roe v. Wade is going to be overturned. There is no doubt that the top priority of the people advising President Bush -- President Trump in making this nomination is to pick someone who will vote to overturn Roe v. Wade. The states know this. They will start passing right now bills banning abortion altogether. And I guarantee you in the next year the Supreme Court will have cases which will challenge Roe v. Wade. And I think it is doomed. Abortion will be illegal in a significant chunk of this country in 18 months.

TAPPER: And there is nothing really that Democrats can do about it, Laura?

LAURA COATES, CNN LEGAL ANALYST: Well, that is partly true in terms of the congressional level.

Remember, all politics is local. And so if the states are asked to decide this issue, local voting is very important to decide who is going to be in office to do that.

But I do agree that it is going to change the ideological and the partisan viewpoint of the Supreme Court. But there is still a lot of steps that have to go in order to get a case before the Supreme Court and to overturn 40-year-old precedent.

Now, it may be they will do death by 1,000 cuts and they will narrow it and continue to constrain the rights and move the date at which the viability of the fetus may be considered enough for the states to say we can do something about this. But I think it is more likely they will actually try to narrow it and constrain, as oppose simply overturn it entirely.

That would actually be quite, quite monumental, and it could happen, but I think the more likely scenario is the narrowing and the constraint of it. And the states could prevent that ultimately by the right to cases and right to litigation at a state level.

TAPPER: Is it possible, Angela, that this will put pressure on the two Republican senators who I believe support abortion rights, at least to a degree, Senator Susan Collins of Maine and Lisa Murkowski of Alaska?

Is that where there is going to be a lot of focus when it comes to the Supreme Court battles coming up?

ANGELA RYE, CNN POLITICAL COMMENTATOR: It is hard for me to even think about Roe v. Wade and that overturning, just given the fact that Anthony Kennedy sided with the conservative portion of the bench on the last four decisions just coming out, whether we're talking about the wedding cake issue with the gay couple, we're talking about more voter suppression, based -- policy through Texas, if we're talking about today's Janus vs. AFSCME case with labor union protection.

TAPPER: Not to mention the travel ban.

(CROSSTALK)

RYE: I'm sorry. I missed one. Yes, the travel -- the Muslim ban, as some of us are calling it, as that is kind of more appropriate. I think my issue is he has not been a voice of reason this term. And

does that mean we're going to get a voice of reason now? Probably not. So, on that hand, yes, it applies a lot of pressure to Senators Murkowski and Collins.

I really think the pressure -- Laura, I think you would probably agree with this -- is on the legal community. There are organizations like the National Bar Association, the Hispanic National Bar Association that have been pretty quiet in the judicial nominations front for the last year.

[16:10:07]

It is time for them to step up. Some of us have to renew and pay our dues, but I think that is an important role that they are going to have to play.

TAPPER: Big victory, though, for Senator Mitch McConnell, who has obviously been a stalwart in trying to get as many conservatives on the bench as possible. Republicans pretty happy today.

AMANDA CARPENTER, CNN POLITICAL COMMENTATOR: Yes. I think you can hear Republicans singing oh, happy day from Capitol Hill.

A lot of people worried that Donald Trump didn't have enough wins going into the midterm elections. But you're talking about two Supreme Court appointments within 18 months and the tax bill. That is enough to campaign on.

And I took care to note that Mitch McConnell said that this will be confirmed in the fall. That gives a lot of Republicans to go to their constituents and say, hey, I'm part of the Trump agenda, even people who are not willing to do so on most other issues.

Republicans will fall in line on judges. And people in West Virginia can go to Joe Manchin, what are you going to do? And so you talk about pressure. I think the pressure is going to be on red state Democrats. And this helps Republicans in the Senate.

(CROSSTALK)

TOOBIN: I think that is a very important point here.

You talk about Susan Collins and Lisa Murkowski. What about Heidi Heitkamp in North Dakota, Joe Donnelly in Indiana, Joe Manchin in West Virginia?

TAPPER: Claire McCaskill in Missouri.

(CROSSTALK)

TOOBIN: Yes, how do they vote on this nomination, when they are trying to walk the line between being good Democrats and -- but being open to Trump's judicial nominees?

I think the president is in very good shape. I think he has a very free hand in nominating the most conservative person he can. And I think that is who he will.

TAPPER: Is this going to motivate the progressive base, Democratic base, Angela? Is this is an issue?

I saw a press release from Tony Perkins from the Conservative Family Research Council saying this is -- this shows -- like, this is going to get evangelical voters out to the polls because they are excited about this. They want to make sure that the Senate stays Republican.

Is this going to get Democrats out?

RYE: I think it sure better. It sure better. And by that, we're dealing with what some are calling an identity crisis, others are calling a struggle for power.

Like, what will the face of the Democratic Party ultimately look like? If folks can't galvanize and understand that, regardless of how progressive you are, you can't be conservative enough for whomever he's going to appoint, this should at least be a galvanizing and unifying point that we have to work together.

TAPPER: All right, everyone, stick around. I will come to you first next time, I swear. I promise.

Who is on the list of President Trump's top picks to replace Justice Kennedy and who actually might have a chance of getting confirmed?

Stay with us.

(COMMERCIAL BREAK)

[16:16:40] JAKE TAPPER, CNN HOST: President Trump says he will likely select the next Supreme Court nominee from a list of 25 names he has prepared.

Let's bring in CNN's Supreme Court analyst, Joan Biskupic.

Joan, take us through some of the names. Who are you keeping your eye out on?

JOAN BISKUPIC, CNN SUPREME COURT ANALYST: A couple of people, Jake. And I'll tell you that not only will I mention some names, I'll tell you that a whole new political campaign has been unleashed. Many of these people have friends who are right now trying to get to anybody connected to Donald Trump or Don McGahn in the White House, President Trump's children, Leonard Leo with the Federalist Society.

And here are who appear right now to be the leading contenders. First two are former law clerks to Justice Kennedy, Brett Kavanaugh, who's an appeals judge on the D.C. circuit here in town. We also have a Ray Kethledge, who is another former clerk for the justice, who's on the sixth circuit, originally from Michigan. We also have a woman by the name of Amy Coney Barrett, a former Notre Dame professor who's now on the seventh circuit.

And to circle back to my idea of connections here, a man who Mitch McConnell really favored and got Donald Trump to put on the sixth circuit, Judge Thapar. He could potentially the first Asian-American justice on the court. And those are just a few of the names.

But I would say that Donald Trump is put on a list of more than 20 names and Neil Gorsuch, when he was chosen, he was not chosen from the first list. His name ended up coming a little bit later. So, there could be a dark horse here. But I still think that they will confine it to the names we have, but maybe not these four necessarily. Although I think they are leading contenders and I think they're surrogates are doing work right now to try to get their profiles raised higher with the president and with key people who will influence this choice.

TAPPER: Interesting. And, Joan, looking back, were there signs that this was coming today from Kennedy?

BISKUPIC: You know, I have to say, Jake, at noon on the John King show, I said I don't think it will happen. But I'll tell you why. I thought, gosh, the guy is in the center of the court. I know he's weary.

But I didn't see even this morning in the courtroom, but I'll tell you what kept running around in my mind. During this term, he pulled back in an unusual way. He didn't write at all in the big partisan gerrymandering case which was an area he was concerned about. He wrote in such a minimal way on the law on the travel ban case. His main message was to Donald Trump, of course.

But he seemed to be kind of pulling back in different ways that made me slightly suspicious. But in that room this morning, Jake, at 10:00 when he took his seat, he was just rocking gently in his big black leather chair as he always does and now it occurs to me it is the last time I'll see in that chair, his wife Mary Kennedy was there. But, you know, that's kind of traditional, too. And it's colleagues didn't seem to indicate this, they knew what was up either.

TAPPER: Good poker faces.

BISKUPIC: Yes.

TAPPER: Joan Biskupic, thanks so much.

And my panel is back.

And, Laura Coates, this goes way beyond abortion. There is people focusing on the fact that this probably means that Roe versus Wade will be overturned and abortion declared illegal in several conservative states.

What else is significant about Kennedy retiring? What other areas of the law might this affect?

LAURA COATES, CNN LEGAL ANALYST: Well, he was going be a down the line conservative on things like campaign finance, gun control and many extents with liberties. But in areas like criminal justice reform, he actually had very key things to say about the use of solitary confinement, all but inviting people to come and say, I'd like you to challenge this barbaric practice of 25 years plus, or over five years plus of having someone be held in solitary confinement, writing in fact the effect on the mind.

He also was somebody who was a swing vote and America has to keep in mind, we needed a swing vote to ban or overturn a ban on same sexual activity in Texas. This is an issue that was important in doing in the Lawrence v. Texas case. He is somebody very key, although he was not really an advocate for it, he has written in his dicta about things like affirmative action, talking about the need to have race be a consideration, if not the overwhelming one, at least one factor.

So, while the focus is on the area of abortion, a very important one when it comes to human rights and women's rights and the ability to choose, there is also a whole host of areas where we require a swing vote for other more progressive-minded notions and ones that, frankly, are in line with our democratic principles and we don't have that now.

JEFFREY TOOBIN, CNN CHIEF LEGAL ANALYST: Let me give you two more: the death penalty. He has also been somewhat on the liberal side in insisting on strict controls on when executions take place and how the procedures --

TAPPER: Not against the death penalty.

TOOBIN: Not against the death penalty, but certainly for limitation on its use.

Now, the issue of same-sex marriage is largely settled but the issue coming up is when can people with the permission of the courts discriminate against gay people. The cake case, which the justices sort of dodged, but those cases are coming back.

The conservative movement in this country wants to allow religious people to say, you can't buy a cake from me. You can't stay in my motel. You can't go to my restaurant. That is the cases that are coming down the pike. And those cases are going to be much more likely to be upheld, the discrimination against gay people is more likely to be upheld than it was with Kennedy on the court.

TAPPER: All right. Let's take a quick break. We're going to come back to this panel.

What challenges might a nominee face in the current political climate on Capitol Hill?

Stay with us.

(COMMERCIAL BREAK)

(BEGIN VIDEO CLIP)

[16:26:49] SEN. MITCH MCCONNELL (R-KY), MAJORITY LEADER: We will vote to confirm Justice Kennedy's successor this fall.

SEN. CHUCK SCHUMER (D-NY), MINORITY LEADER: Our Republican colleagues in the Senate should follow the rule they set in 2016. Not to consider a Supreme Court justice in an election year.

(END VIDEO CLIP)

TAPPER: That was Senate majority and Senate minority leader already butting heads over replacing Supreme Court Justice Anthony Kennedy. The Senate will need to confirm the next Supreme Court justice, and the last vote over Justice Neil Gorsuch broke down along party lines, 54-45.

Now, once upon a time, 60 votes were required to proceed to a final vote on the Supreme Court nominee, but then the Senate Democrats in 2013 changed that rule invoking the nuclear option in 2013 requiring only 51 votes for cabinet officials and judges except for Supreme Court justices. Republican Leader Mitch McConnell warned them at the time you'll regret this, and you may regret it a lot sooner than you think.

And sure enough, when Republicans were back in the majority, they lowered the vote threshold to 51 votes for Supreme Court justices as well.

Let's bring in CNN's Phil Mattingly at the Capitol right now.

Phil, do you know if McConnell is even considering listening to Schumer to wait until after the election.

PHIL MATTINGLY, CNN CONGRESSIONAL CORRESPONDENT: Yes, I appreciated your chuckle there, Jake. The short answer is no, absolutely not. He obviously made that statement on the Senate floor just a short while ago, saying there will be a vote in the fall, but I'm told as they expect to have hearings in short order after a selection is made. And it's also worth noting, the Senate majority leader is very high on the 25 individuals that are on President Trump's list that he said he would pick from.

Most interesting from the Republican side of things in terms of what's going to happen next, I have one top Republican official tell me the full machinery of the Republican Party is about to kick into high gear. This is obviously an issue of utmost importance for the majority leader, also the party itself. We're talking millions of dollars in outside money. We're talking major pushes on the PR side and on the lobbying side, on the grassroots side trying to get this across the finish line once that selection is made.

We're going to hear a lot about rules or precedents or what's happened over the last couple of years in terms of whether or not a hearing and a vote will happen. McConnell does not care about that. He is going forward, according to both him and his top advisers.

TAPPER: All right. Phil Mattingly for us on Capitol Hill, thank you.

Angela Rye, let me go to you. What should Senate Democrats do?

ANGELA RYE, CNN POLITICAL COMMENTATOR: They have to raise hell. And I say that -- I said it kind of -- whatever, but I mean like seriously. This is a decision that doesn't just impact our lives next year or the next two years. Supreme Court justices are lifetime appointments for those who might have missed it.

So, this is something that has the ability to reverse course on key decisions that impact our every day civil rights and overall human rights. You're seeing civil rights organizations that are in a legal space pushing out information right now and hashtag #SaveSCOTUS, this is already a very big deal, people understand what's on the line.

TAPPER: So, when you say raise hell, what do you mean? What do you want Democrats to do?

RYE: I think that they have to be firm about saying, there was a point in time very recently where you did not want a justice appointed before an election. Let the people speak loud and clearly, we're in the middle of primary season, why can't you decide this on the other side of the election?

You got a lot of other things that are empty that you have -- empty promises you haven't yet fulfilled.