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Don Lemon Tonight

Trump: I Will Have a Supreme Court Nominee 'Next Week'; Source: Sen. Chuck Schumer (D-NY) Tells Democrats, Nothing Is Off The Table If GOP Moves Ahead With SCOTUS Nomination; What Justice Ginsburg Death Means For Big Questions Facing The Court Like Obamacare And Election Issues; Crowds At The Supreme Court Pay Tribute To Ruth Bader Ginsburg; Ginsburg Death Throws Chaotic Election Into More Turmoil. Aired 8-9p ET

Aired September 19, 2020 - 20:00   ET

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

[19:58:29]

CHRIS CUOMO, CNN HOST: D Lemon takes the coverage right now in "CNN TONIGHT."

DON LEMON, CNN HOST: Yes, and really what it means for the world, Chris, you know, we lost -- she was a giant, and so many people obviously stunned by her death. But everyone knew that she was sick, but just didn't know how badly, you know how close to death she was.

CUOMO: I mean, look, she had had an epic battle with a cancer that people almost never beat, and she had beaten it back in a way people almost never have, and not just to survive, but to thrive. Her battle was truly remarkable.

But now the rest of us are left with a battle about what this will mean for us. As her family mourns, I think this country is going to be in a phase of mourning for the kind of politics that's going to unfold over the next 40 something days, which is going to be as ugly as we've seen.

LEMON: Yes. And many will barely get to mourn because they'll be dealing with the brutal political process. Chris, thank you very much. Nice coverage. I appreciate you. I'll see you soon, buddy.

This is CNN TONIGHT. I'm Don Lemon. You're looking live right now -- here it is -- at the scene outside the Supreme Court. There it is. That's where crowds are paying tribute to the late Justice Ruth Bader Ginsburg for the second night in a row, and this is our breaking news now.

The President telling a packed crowd in North Carolina tonight that he'll have a Supreme Court nominee next week.

[20:00:03]

(BEGIN VIDEO CLIP)

DONALD TRUMP, PRESIDENT OF THE UNITED STATES: I will be putting forth the nominee next week. It will be a woman. It will be a woman. (END VIDEO CLIP)

LEMON: That as Senator Susan Collins dissents. Susan Collins are saying this, given the proximity of the presidential election, however, I do not believe that the Senate should vote on the nominee prior to the election. The president, no surprise, does not agree.

(BEGIN VIDEO CLIP)

Trump: Well, I totally disagree with her. We have an obligation. We won, and we have an obligation as the winners to pick who we want.

(END VIDEO CLIP)

LEMON: But I want you to listen to what he says about what happened when the Senate refused to take up President Barack Obama's nomination of Merrick Garland in 2016.

(BEGIN VIDEO CLIP)

REPORTER: Sir, President Obama's pick in 2016, Merrick Garland, never had a chance to move forward, that was an election year. Why should your pick get a chance to move forward in an election year?

Trump: Well that's called the consequences of losing an election. He lost the election, he didn't have the votes. When you lose elections, sometimes things don't work out well.

(END VIDEO CLIP)

LEMON: Well this is a fact check for the president of the United States. Barack Obama did not lose a presidential election. Remember, but this was President Trump. This president seems to have losing on his mind.

That as we're learning tonight that a package containing the poison ricin and addressed to the president was intercepted by law enforcement earlier this week, according to two law enforcement officials. A source is telling CNN investigators are looking into the possibility that the package came from Canada. Authorities are examining similar packages mailed to addresses in Texas.

We're living in really unusual times, crazy times, no other way to put it, nearly 200,000 Americans death from the pandemic, Election Day just weeks away and an epic battle over the president's attempt to push through a Supreme Court nominee. And in the face of all this, the hypocrisy of Senate Republicans is really stunning but perhaps not surprising.

When you can blatantly knowingly contradict your own words, words you know are on tape, and you know they do it anyway. Well, that's takes a special kind of hypocrisy. This is Mitch McConnell in 2016.

(BEGIN VIDEO CLIP)

SEN. MITCH MCCONNELL (R-KY): The next justice could fundamentally alter the direction of the Supreme Court and have a profound impact on our country. So, of course, the American people should have a say in the court's direction.

(END VIDEO CLIP)

LEMON: Of course the American people should have a say in the court's direction, well, except when it's a Republican, president doing the nominating.

(BEGIN VIDEO CLIP)

REPORTER: Should the Supreme Court justice die next year, what will your position be on filling the spot?

MCCONNELL: I'll refill it.

(END VIDEO CLIP)

LEMON: McConnell saying this just hours after the death of Ruth Bader Ginsburg was announced. And I quote here, President Trump's nominee will receive a vote on the floor of the United States Senate.

What has change, since the majority leader stood up for the principle that the American people should get a say in the choice of the Supreme Court justice. Barack Obama was president then, that's what changed. Donald Trump is president now, and there you have it.

So Joe Biden is tweeting today, he's saying, let me be clear the voters should pick a president and that president should select a successor to Justice Ginsburg.

So I want to bring in now Congressional Correspondent, Manu Raju, our Chief Political Analyst, Gloria Borger, and Washington Correspondent, Ryan Nobles. Good evening to all of you, thank you so much for joining.

So, Manu, I'm going to begin with you. It is clear the president will nominate a justice and the majority leader will try to get that person seated whether it would be before or after the election, and probably depends on the handful of senators and whether they'll keep their word.

MANU RAJU, CNN SENIOR CONGRESSIONAL CORRESPONDENT: Yes, no question about it, it's all about counting of votes, and typically confirming a nominee takes about two to three months. And we're 45 days away from the election. So in a normal situation, this would wait until after the election.

The Republicans have several things they need to calculate, namely whether the votes are there. Mitch McConnell can't lose more than three Republican senators in order to move ahead. Already, one Republican senator, Susan Collins, is saying that the next president, whoever wins in November, should make that decision about to fill-in in the Supreme Court.

They can see -- it's unclear if other Republicans will join ranks, Lisa Murkowski of Alaska, before Ginsburg's death, indicated she would be open to delaying a nomination, delaying the Supreme Court fight until after an election. She has not said what her view is now that Ginsburg has passed away. Her office is not commenting beyond that.

A couple of other senators have raised concerns in the past, like Chuck Grassley told me in late July, that they should not move on a vacancy this year.

[20:05:06]

Now, his office is not saying where he stands tonight. Mitt Romney, someone to look at as well, he also is not saying yet, as well as Lamar Alexander, a retiring Tennessee Republican. So there are handful Republicans who would go to Mitch McConnell and say, let's wait.

At the moment it's not clear if that will happened, and Mitch McConnell is telling his Republican is in part, Don, you guys should wait before making your announcement, come to Washington, let's talk about it and that's where the pressure will be on a lot of these senators to get behind the nominee. And the question ultimately too, Don, is will it help them politically come November to keep the Senate majority and also keep the White House.

LEMON: Yes, which one is more important having a justice -- secretary (ph) of justice or keeping the Senate?

Gloria, I want your take on Senator Collins because she says that she has no objection to the president nominating someone now but she also says the president elected November 3rd should pick the nominee. But what if that President is Joe Biden and not Donald Trump, there will be a Trump nominee in that scenario?

GLORIA BORGER, CNN CHIEF POLITICAL ANALYST: Well, she was trying to say, okay, you're the president, you can kind of work on your nominee, you can name your nominee. Because, of course, she knows that's going to happen anyway. She's in a tight race, as we all know. But she said, you want to wait until after a kind of confirmation. So you could have -- if Joe Biden were to win, you could have a presidential nominee hanging out there.

And then, Mitch McConnell could decide, wait a minute, I'm not going to let that happen. I'm going to come back on a lame-duck session where I am still the leader, say, you should lose control of the Senate, and I'm going to try and do this. And that's where the rubber meets the road.

LEMON: Well, it's interesting to me because, you know, Democrats often hold their breath and they wait for Susan Collins to be there, the saving vote, so to speak. That happened during impeachment. And none of that -- and it didn't go through.

But, listen, she says, given the proximity to the president's reelection, however, I do not believe the Senate should vote on the nominee prior to the election. She didn't say after the election, she's living herself an out. BORGER: Totally living herself an out, and totally leaving herself an out. And that -- in a way, that's what Mitch McConnell wants from her. I'm sure Mitch McConnell knew about this before she said this.

This is -- you know, for Mitch McConnell, I cannot overstate, this is the Shakespearean moment for this man. Everything he has worked his life for is at stake here, the power of being majority leader and also a Supreme Court seat. Don't forget, he's been working on packing the courts with conservatives right and left. He's been very successful on it.

Now, a Supreme Court seat and his majority in the Senate are both at stake at the same time on the same nomination, it's quite remarkable.

LEMON: Yes. So for everyone out there who says, oh, Susan Collins, and then that's not going to happen, that's not a guarantee because she's saying before the election, after the election. And remember, Republicans have control of the Senate until January, right? End of this -- until January, and so they can still vote on the nominee --

BORGER: Totally.

LEMON: -- after the elections. So, calm down everyone.

Ryan, good evening to you I see you were there at the rally. What's the president saying about this tonight?

RYAN NOBLES, CNN WASHINGTON CORRESPONDENT: Well, Don, he's actually given the most specific information about what type of person he plans to nominate to replace Ruth Bader Ginsburg to this crowd here in Fayetteville, North Carolina. He said specifically for the first time tonight that he plans to appoint a woman.

And it's pretty interesting to see how the dynamic played out here in Fayetteville because before the president even began talking about the Supreme Court nomination, the crowd here erupted in a chant of fill the seat, fill the seat, fill the seat. It was very clear from this conservative crowd that they don't want the president to wait. They want him to appoint someone as soon as possible.

And then the president initially said he was going to nominate a woman and then he actually did a poll with the crowd here, asking them, would you rather appoint -- me to appoint a man or a woman, and the crowd was behind him, saying that they do want him to appoint a woman. So President Trump making it clear that that's what he plans to do.

The other thing that he said here today, Don, is that he plans to do it sometime next week. Now, he didn't give a specific date as to when he's going to make that official announcement but sources are telling me in Kristen Holmes that the president is going to wait until the funeral and the burial of Ruth Bader Ginsburg before he finally makes that announcement.

Now, in the Jewish tradition, that could happen rapidly, so that could happen at the beginning of the week and give him time to make the announcement at the end of the week. But it's pretty clear, Don, that he is going to move quickly here with the goal of trying to get this confirmation process moving before the election. And it seems pretty clear that he is going to appoint a woman to that post, Don.

LEMON: Interesting, what if they waited, but that's a whole on other thing. Manu, let me ask you about Democrats. They're in the minority now. What options do they have?

[20:10:00]

RAJU: Not a whole lot. I mean, they can slow walk the process as much as they can. But there's not much they can do without the votes to block this. The Senate filibuster rules were changed by Mitch McConnell over Supreme Court nominees, and that came after Harry Reid, the Senate Democratic leader, changed it for lower court nominees and others presidential nominees back in 2013.

So right now, essentially, a simple majority, 51 Senators can advance nomination, there are 53 Republican senators. So what Democrats can do procedural things to slow down the body, slow down the chamber. But, ultimately, blocking this nomination we will come down to Republican defections.

And, Don, the other thing the Democrats are talking about is potential retaliation, if they take back the Senate majority in the fall and come to power next year. Their Senate Democratic leader, Chuck Schumer, said all options are on the table for next year.

And I'm told among the things being discussed would be to eliminate the filibuster rule for legislation and then allow him to pass a bill that would expand the Supreme Court potentially add more seats to the Supreme Court. That's going to be something that would be discuss among the various different measures that Democrats will try to do if Mitch McConnell moves forward, which he is bound to do just that.

LEMON: Listen, I heard that Joe Biden is saying that he would be opposed to that. But that may be changing, has anyone of you heard, that he may be changing his mind on that, Gloria?

BORGER: But I think he's always -- first, he was opposed to changing it and I think he softened his position a bit. I don't think we know definitively on that.

LEMON: Yes. That's very dangerous, just like what Republicans did in 2016, but they don't be, they don't seem to be abiding by the rules that they created back in 2016.

Ryan, I want to bring you in again, and ask you about Senator Thom Tillis, is at the Trump rally tonight. He is in a tight reelection bid. What's he saying about a nomination there?

NOBLES: Well, he made it pretty clear that he is going to follow the president's lead on this. He said this is the president's nomination to make and it's the president timeline to set and that he is going to vote for whoever the president puts up for nomination.

And, you know, that was received very well by this crowd here in North Carolina. And it's important to point out as well that Senator Thom Tillis sits on the Judiciary Committee. So he is going to play a very important role on all this process.

And, Don, his race here is extraordinarily close, just like President Trump, his race with Joe Biden in North Carolina is extraordinary close because this is a very, very important state. So every bit of this counts and this is going to be such an important factor heading into this election and Tillis making it clear tonight where he stands.

LEMON: And it's interesting, Gloria, I just have to ask you, is if you look behind Ryan, I'm not sure if you have a monitor where you are, you can Air Force One in the picture, the president using Air Force One in his reelection, making all these stops. I'm not sure who is paying for this, the American people and using, you know, Air Force One as a reelection on the campaign prop.

BORGER: Well, I think probably the campaign would be paying for a campaign fees.

LEMON: The Secret Service and the jet fuel and all that?

BORGER: Right. Can I just say something what I think Biden might be doing?

LEMON: Yes.

BORGER: And because this is -- you know, this is Armageddon right now that we're heading into. And Biden is on a tough spot because he's wanted to talk about COVID, COVID, COVID. Now, you're going, of course, to talk about SCOTUS, talking about Supreme Court and what occurs.

And so I was talking to a Democratic source today who made it very clear to me that there may be a way to kind of meld those two things, which is that Joe Biden will say, look, you're health care is at stake here if a sit flips on the Supreme Court and you get a conservative. Ruth Bader Ginsburg was the one who said, you know, I'm not going to overturn the Affordable Care Act. I am not going to do that to you.

And I think what you'll see more and more Democrats doing, and Manu can talk about this on the Hill a lot, is echoing that refrain which is, if you want to keep your health care, if you want to keep your pre-existing conditions, if don't want to kill Obamacare, then you really need to vote Democratic and stop this from occurring.

LEMON: Thank you all. I appreciate it. We'll see you soon.

The Senate majority leader, Chuck Schumer, says nothing is off the table if Republicans move forward with the Supreme Court nominee in the coming weeks. What does that mean? I'm going to ask Senator Chris Van Hollen. He is next.

(COMMERCIAL BREAK)

[20:15:00] LEMON: President Trump saying he'll have a Supreme Court nominee next week as Senate Majority Leader Mitch McConnell vows to get on the Senate floor as soon as possible. So, Senate Democrats weighing their options, holding the call with Minority Leader Chuck Schumer today.

Joining me to discuss is Democratic Senator Chris Van Hollen. Senator, thank you so much, I really appreciate you joining us.

Listen, we are told that Chuck Schumer said on your call today that nothing is off the table. What does that strategy look like? What is nothing off the table look like?

SEN. CHRIS VAN HOLLEN (D-MD): Well, Don, first of all, it's good to be with you. I think it's absolutely indecent that Mitch McConnell did not even take a respectful pause to honor the life and legacy of Justice Ginsburg before he plunged into this power grab.

What we're saying is that we will use everything available to us to stop this abuse of power, starting with, really, rallying the American people and asking them whether in the middle of this COVID-19 crisis, when we're about to passed the grim mark of 200,000 Americans dead, unnecessarily, in so many cases, because of Donald Trump's negligence and, in fact, his knowing in action.

At that point in time, do we really want Mitch McConnell to abuse his power, violate his own rules in order to stack the court with radical right wing justices, who will start by taking away people access to affordable care, destroying the affordable care act, because that's what this is all about.

[20:20:20]

And so we want to make sure that the American people hear loudly and clearly what the consequences of this abuse of power would be in their lives.

LEMON: But beyond, as you said, you'll do everything, rallying the American people. That was the specific thing that you mentioned. Is there anything specific beyond that? Does that mean expanding the court? Eliminating the filibuster?

VAN HOLLEN: Well, Don, we are focused on stopping this now. Not, you know, what actions we'll take in the event that we're not successful. We're very focused on, right now, using every tool available to prevent this abuse of process, both procedurally, but also, and really very importantly, in these Senate races going on around the country, these very close Senate races.

Republican senators need to know that the people in those states are going to hold them accountable. If they take this pandemic that we're in and instead of focusing on relief for the American people, decide to stop the court with justices who are going to take away access to health care, take away workers' right, take away women's rights, of that is the choice those Senators will be making.

And we think it's important in this moment that the American people rise up and address this moment. As you know, it takes four Republican Senators to say that we should wait until after the presidential inauguration before moving ahead, which, of course, was the position that they took back in 2016 when Barack Obama presented a Supreme Court nominee.

LEMON: Well, it seems like a simple majority and that's -- you know, you say all options are on the table, but it's going to be pretty tough. So let's move on, because I want to ask you about Susan Collins.

And to me, her statement reads as if she's saying, before the election, she's not going to vote but maybe after, even though she os saying the court, the appointment to be made by president who is elected on November 3rd. So -- but no specific, I will not vote, if this president nominates someone, she doesn't say that.

So do you think that that is enough? What do you think about Susan Collins and others who decide not to vote?

VAN HOLLEN: Well, Don, I interpreted her remark to say she would not support any action. She would oppose any effort to vote on a he nominee before Election Day. And that after Election Day, whoever won that presidential election, should be given the prerogative of making the nomination. So, if Joe Biden, were to win, that would mean waiting until after the presidential inauguration.

And the fact that Susan Collins made the statement is exactly the point that I've been making, which is we need three more Republican senators to do that. And for that to happen, we need for the people in these key states to be contacting their senators, the phone should be ringing off the hooks. They should be a mass movement. We were able to stop the Republican effort to destroy the Affordable Care Act, Don. In the end, it was one vote.

And so what we're looking for is for the public to say to these senators do what Susan Collins just did, say that you will not vote for any nominee --

LEMON: But Senator, with all due respect, that's not what she's saying. She's not saying specifically that she would not vote for any nominee. She's saying, I don't believe this, I don't believe that, and all fairness to the American people. But nowhere in this statement does she say, I will not vote. She says, I do not believe that the Senate should vote on a nominee prior in fairness to the American people, who will either be reelecting the president or selecting a new one.

The decision of a lifetime appointment to the Supreme Court should be made by the president who is elected on November 3rd. She could have easily just put out a statement saying, I will not be voting. But that's not what the statement says. It just -- it goes all around that and doesn't say specifically, I'm not voting.

VAN HOLLEN: I hear you. I think she is going to have a hell of a time explaining to her constituents if she ends up voting for a Trump nominee before November 3rd, how that squares in any way with that statement.

And so my view is that it's an indications that she's we'll aware of the fact that her voters in the state of Maine would her accountable for moving in this direction because they understand that what's at stake is losing access to affordable health care.

[20:25:18]

As you know, in mid-November, the Supreme Court is scheduled to take up exactly that issue.

So, I understand that we can sort of look at her statement and maybe reach a different conclusion. I think having made that statement today, she would be very hard-pressed going into her election if she takes another position.

And so the main thing we need to focus on is other Republican Senators doing the same thing. We will continue, as I said, Don, to look for every procedural device available to stop this abuse of power, which is what it is.

But the best way, the one way that we can certainly stop this is if the American public rises up and says, my God, we're in the middle of a COVID-19 epidemic. We have people hurting on the health care front, people dying, we have people, who are struggling to make ends meet and, really, you Republican senators are going to support Mitch McConnell's effort to stack the court with radical right wing judges who are going to take away your access to affordable health care, who are going to take away workers' rights, who are going to take away women's rights. That needs to be our focus in terms of communicating with the public, what's at stake here, as we also look at every procedural tool and device to stop the abuse of power.

LEMON: Senator, best of luck to you. Thank you so much. I really appreciate you joining us. Be well, thanks.

VAN HOLLEN: Good to be with you.

LEMON: So, you heard what Senator Van Hollen just said, what is the best strategy for Democrats right now.

A former Justice Department official in the Obama administration says, he has some ideas and he is going to join me, next.

(COMMERCIAL BREAK)

[20:30:36]

LEMON: A fierce political battle already underway over who will replace Justice Ginsburg and when a vote will take place. Whether the president gets to fill the seat or not, Justice Ginsburg's death could have a huge impact on issues heading to the Supreme Court.

Let's discuss now. Our chief legal analyst is Mr. Jeffrey Toobin, and he joins us. Jeffrey, good to see you.

JEFFREY TOOBIN, CNN CHIEF LEGAL ANALYST: Hey, Don.

LEMON: So putting aside the fate of Justice Ginsburg's seat, what does an eight person court mean for an election related any election related cases if they arise?

TOOBIN: Well, this is a yet another phony issue that's arisen because the Supreme Court has had eight justices, at many times in its history, including very recently after Justice Scalia died, the court had eight members for about a year. So, I mean, there is no problem with the court functioning with eight people.

What happens is, is if the court splits four to four, the lower court's decision is affirmed, that happens several times during the eight-member court. So it's not like the court is paralyzed with only eight members. It just functions in a somewhat different way.

LEMON: So even cases pertaining to the 2020 election, the same thing. If it's a tie, the lower court decides?

TOOBIN: Well, that's right, if it's a tie, the lower court's decision stands. But, you know, that has happened many times in our history. It's kind of too bad. I mean, it's better to have the Supreme Court decide these cases, but the idea that the court would somehow be paralyzed with eight people as opposed to nine, is just silly.

And, you know, the same argument could have been made in 2016. All the Republicans who are now saying, oh, well, it's very important that there be nine justices, by the time there's the election. They didn't want nine justices by the time of the 2016 election.

I mean, it's just -- it's a phony makeweight argument -- to get to where they want, which is to get another conservative on the court.

LEMON: Of course -- of course, I feel your, Jeffrey. State courts had been -- had been ruling on lots of cases about voting access, mail-in ballot issues. What if those similar cases make their way to the Supreme Court? Same thing, your same answer as before?

TOOBIN: Absolutely. And, you know, the Pennsylvania Supreme Court just had an important decision at the end of last week. That was actually a very significant victory for the Democrats because it said that votes postmark before Election Day had to be counted even if they were received afterwards. It said that Pennsylvania could use ballot boxes which the parent -- the President has been attacking, that decision could be appealed to the -- to the Supreme Court.

And if it's appealed, eight justices will decide it. It's not -- But it's not -- and it's been done before.

LEMON: I think what the question is, is that if there are more conservatives, if it's a more conservative court, and election issues arise, is that going to affect how they vote, you know, maybe for what President Trump wants, voting ballot issues or issues that arise about, you know, anything that -- is it more likely that a Republican president will get what that Republican president wants if there are eight people on the court at the time and it leans conservative? [20:35:09]

TOOBIN: Well, I think the -- what -- what's really going on here, Don, is that the conservatives, Ted Cruz, the people who were saying, you know, we need to confirm someone before the election, they just want another vote that will help Donald Trump get reelected, and they're probably right.

I mean, if you look at Bush V. Gore, which is the ultimate election case, from 2000, you had a five to four decision where the five conservatives voted for Bush and the four liberals voted for Gore. I think, you know, it calls for a certain degree of cynicism, when the justices deal with these political cases that they wind up voting in court the way they voted in the ballot box. And I think that the issue here is the Republicans just want another conservative Republican vote in time for the election in case any cases come up.

LEMON: I want to ask you about the ACA, the Affordable Care Act or Obamacare, one week after the election, the Supreme Court will hear oral arguments in the Republican effort to overturn Obamacare. Without Justice Ginsburg, is the law basically doomed?

TOOBIN: Not necessarily. Because remember, when the first and second big challenges to Obamacare came before the court, John Roberts surprised a lot of people, including me, by voting to uphold Obamacare.

Now, the specific legal issue that is before the court here is somewhat different than the ones that John Roberts voted in. But, you know, what makes this particularly perilous for supporters of Obamacare, is that even if Roberts voted with the liberals, in this case, there are now only three liberals. So it would be Breyer, Sotomayor, Kagan, and Roberts, and it would be a four to four tie, and that would affirm the lower court decision which struck down Obamacare.

So, I would say, the departure of Justice Ginsburg from the court is a very serious threat to the survival of Obamacare, as it is to so many issues that liberals and progressives care about.

LEMON: Jeffrey Toobin. Jeffrey, I want you to stand by. We'll be needing you throughout the hour. Thank you so much.

TOOBIN: All right, man.

LEMON: We'll be right back.

(COMMERCIAL BREAK)

[20:40:46]

LEMON: And you're looking live now at the Supreme Court where crowds have gathered tonight paying tribute to the late Justice Ruth Bader Ginsburg. The President says he'll have a nominee to fill her seat next week, that leaves Democrats grieving her loss and girding for a fight at the same time. I want to discuss now with Brian Fallon. He is the executive director of progressive group Demand Justice. He was just Department official in the Obama administration as well. Brian, thank you. You know, right now as we speak, and we show the pictures and we're probably going to pull them up -- put them up again.

Demand Justice is holding a vigil in front of the U.S. Supreme Court honoring Ruth Bader Ginsburg. Tell me about it, please.

BRIAN FALLON, EXECUTIVE DIRECTOR, DEMAND JUSTICE: Well, we've gotten a lot of cooperation, a great outpouring of support. And we're so grateful to co-host organizations like Move On and Indivisible Center for Popular Democracy. I think there's about 5,000 people gathered out there right now, just distributed actions across the country that were organized by Women's March, another group that was very involved in the fight against Brett Kavanaugh two years ago.

And the point tonight is we want to grieve. We want to mark the life and legacy of a true iconic court, Ruth Bader Ginsburg. And tomorrow, we need to come out and we need to resolve to fight. This is a situation where we know that the numbers are in the Republicans favor. But we have to go out and honor the legacy of Ruth Bader Ginsburg by trying to hold Donald Trump and the Republicans to honor her last dying request, which was that the next president get to fill her seat.

So, we're going to go out there, we're going to organize, we're going to do our darndest. I think that there's a change landscape politically compared to 2016. When this situation happened last time with Merrick Garland. Back then, I worked for Hillary Clinton in a presidential campaign against Donald Trump. And we lost voters who cared about the Supreme Court as their top issue by 15 points. This time, there's been consistent poll after poll, show Democratic voters prioritize the issue more than Republicans. So, I think our people are going to be intense, and we're going to come to fight for RBG in the next couple of months.

LEMON: The question is, what does that mean? You know, because I was speaking with Senator Chris Van Hollen, just moments ago, and he -- you know, he said that he wanted to motivate voters, didn't say -- give me specifics, but you lay it out very clearly. And everyone -- you know, everyone is saying, we got to fight, we got to fight, we got to fight, but you laid out very clearly what the Democrats need to do right now.

And you say, number one, oppose Trump's nominee prior to the election, invoking the GOP's own rule from 2016. Number two, you say, defeat Trump on November 3rd. And then number three, keep seat open until Biden takes office. And number four, if GOP rams Trump pick through anyway, add seats to the court.

I mean, you say, this is the play, there is no other play. The first thing is straightforward, if difficult, but are Democrats prepared to add seats to the court? Because it sometimes seems like they are playing by the rules while Republicans are doing anything that it takes to win? FALLON: Well, we on the outside, the groups that are in the streets, organizing people and channeling this raw energy and emotion that has sprung up since the passing of Ruth Bader Ginsburg yesterday, we have to do our part and what does that mean? That means we need to make these Senate Republicans these vulnerable incumbent Republicans that are in tough race as we need to make them feel the pain. We need to make them feel shame over what they're proposing to do here in jamming this through.

[20:45:05]

Do I think we can win over the majority of them? No. I think that a lot of them have decided that they're going to sink or swim with Donald Trump and no boat with him till the -- till the end of their political career potentially in November --

LEMON: So you don't think they'll win over enough -- you don't think they'll win over enough to block it if that actually does go for a bow?

FALLON: I think we can do our darndest. And we can really make them feel political pain and potentially hold them accountable. And flipping the Senate is an important part of this step by step process that you just read.

But then we need the Senate Democrats to do their part, which is I think they need to brandish of the very credible threat that they do have at their disposal, which is to say, if they win back the Senate in November, and it's looking pretty good right now.

And I think an issue like this is only going to help their cause. They need to warn the Republicans if they go there and do what they did, again, 2016 and steal a Supreme Court seat that we are going to change the filibuster rules, and we are going to add seats to the Supreme Court.

If we let the 2016 situation replay itself here in 2020, we will only have ourselves to blame for the next three to four decades of a Trump super majority on the Supreme Court. Democrats have that within their own power to threaten that. I think that could seriously put some pause in the minds of rank and file Republicans. Maybe not Mitch McConnell. Maybe people like Mitt Romney and (INAUDIBLE).

LEMON: And that's if Biden wins. But here's the interesting thing of what you say, because there are Democrats who are opposed to the Electoral College, they believe it's not fair to most people in this country, because the minority has ended up -- has ended up electing the president too many times.

So if Democrats do win the White House and they add seats to the Supreme Court, that means the Electoral College is in jeopardy, and that means it is Republicans will have a tough time to win the presidency, if ever again.

FALLON: So you have to think about the Supreme Court and how does it get to be that the Republicans have had a hammerlock on the Supreme Court for decades. Even though Democrats keep winning the popular vote in presidential elections time after time. The Supreme Court, the way that we get it is we have a president that has been -- we've had two Republican presidents in a row, they've been elected in the first instance without winning the popular vote.

They then nominate justices for the Supreme Court who get confirmed by a Senate Majority that does not represent a majority of the population because of malapportioned in the Senate.

And so this -- the Supreme Court is really the residue of two kind of majoritarian institutions that we already have in our government in the form of the Electoral College and malapportioned in the Senate. And I think we are headed for a crisis where the public is going to say enough, there is -- there are too many kind of majoritarian's choke points in our system, and that's how we end up with an extreme majority on the Supreme Court that is out of step completely with the public's views on common sense things like gun safety, solutions to climate change, and a woman's right to choose.

If Donald Trump gets another vote on the Supreme Court, it won't matter what John Roberts thinks about the Affordable Care Act, they won't matter if he wants to take an institutionalist approach and slow down any effort to repeal Roe V. Wade, they will have five hardliners on the Supreme Court ready to strike blow after blow on each of those issues. I think it will awaken the public even more quickly. And the pressure on Democrats in 2021 will be intense to do something about reforming the Supreme Court.

LEMON: I got to just ask you. I know that we're out of time here. What do you -- how do you feel about Democratic voters in 2016, who were either tepid about Hillary Clinton or just didn't go out to vote? What do you say to them now?

FALLON: Well, I think a lot of people made the mistake of thinking that Hillary Clinton had it in the bag and that they could afford to either sit the election out or indulge a third party preference when it came to casting their ballot.

I think a lot of people assumed out the fight over the American policy, because a lot of them said, well, it was Antonin Scalia that died. So it's a Republican seat. It's -- you know, it's not going to change the balance of the court if Donald Trump now comes in and has to see.

We saw a lot of that hangover. When Neil Gorsuch was nominated, there was not much of a -- an inclination to fight on the part of Senate Democrats when that nomination was first rolled out. And then again, when Brett Kavanaugh was first nominated, you know that it was not until Christine Blasey Ford came forward with her allegations that he really signed uprising in the country.

In the early days of that nomination, a lot of people said, well, it's Anthony Kennedy. It's a Republican appointee for Republican appointee. Democrats have been taking the court for granted for too many years. This is now the capstone of a 40-year project that Republicans and the Federalist Society have been embarking on to steal the Supreme Court. They're about to pull it off. And I think Democrats -- Democratic voters, rank and file, voters are finally saying enough.

Poll after poll shows that they trust Joe Biden on Supreme Court appointments over Donald Trump. I think that the potential for Republicans to experience a backlash from this is quite high.

LEMON: Brian, thank you so much. I appreciate your time.

FALLON: Thanks, Don.

LEMON: We'll be right back.

(COMMERCIAL BREAK)

[20:50:17]

LEMON: I just want to remind you right now about the CNN Films documentary "RBG" coming up tonight at 10:00 p.m., of course. Here's a clip on her relationship with Justice Antonin Scalia.

(BEGIN VIDEO CLIP)

UNIDENTIFIED MALE: Even though they had differing points of view, they were dear friends. I'm sure they were picking at each other the whole time, but they kind of enjoyed it.

RUTH BADER GINSBURG FORMER ASSOCIATE JUSTICE OF THE SUPREME COURT OF THE UNITED STATES: Justice Scalia would whisper something to me. All I could do to avoid laughing out loud so I sometimes pinch myself.

People sometimes ask me, well, what was your favorite Scalia joke? And I said, I know what it is but I can't tell you.

UNIDENTIFIED MALE: They enjoyed going to get the operas together. They enjoyed discussing particular operas and, of course, they appear together in an opera.

(END VIDEO CLIP)

[20:55:04]

LEMON: That's "RBG" coming up at 10:00 p.m.

The battle over Justice Ginsburg Supreme Court vacancy throwing the 2020 election into deeper chaos. So, now what?

(COMMERCIAL BREAK)

LEMON: This is CNN TONIGHT, I'm Don Lemon.

President Trump moving quickly to name a nominee to fill the vacant seat on the Supreme Court following the death of the late -- last night, I should say, of Ruth Bader Ginsburg, saying that he'll make his choice next week.