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FDA Links Hydroxycut to Liver Damage; Justice David Souter Retires
Aired May 01, 2009 - 15:00 ET
THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.
(BEGIN VIDEOTAPE)
RICK SANCHEZ, CNN ANCHOR (voice-over): Guess what Condi Rice was caught on tape saying to Stanford students? Yes.
Why is the White House telling us what Biden meant to say, when we heard what he said? And it wasn't anywhere near this.
ROBERT GIBBS, WHITE HOUSE PRESS SECRETARY: What the vice president meant to say was the same thing that, again, many members have said in the last few days.
The governor of Texas talks about not wanting to be a part of the United States. Yet, guess which state has taken more federal disaster money than any other?
The video that begs the question, why are bus drivers allowed to text or even use a phone on the job? Period. Really, we would like to know, on this, the nation's first national conversation, right now.
(END VIDEOTAPE)
SANCHEZ: And hello again, everybody. I'm Rick Sanchez with the next generation of news. It is a conversation. It's not a speech. And it is your turn to get involved.
There is a health warning from your government that we are reporting to you right now. You're going to recognize what they are saying that you should stop taking immediately.
If you're taking Hydroxycut, Hydroxycut, you or they have to stop taking this thing right away. We are not kidding. According to the Food and Drug Administration, this stuff can destroy your liver. And, in one case, already, it has killed. So, this thing can even kill you.
Senior medical correspondent Elizabeth Cohen is joining us right now.
One person dead, 23 people we understand seriously injured. What is this thing?
ELIZABETH COHEN, CNN MEDICAL CORRESPONDENT: It's called Hydroxycut. And it's got so many different ingredients in it, the FDA says they're not sure exactly what the problem is. But what they found, as Rick said, one person dead, a 19-year- old. And, in addition, they're seeing problems like liver problems, heart problems, seizure. One person has even needed a liver transplant.
So, they have asked the company to voluntarily take these off the market, which they have done. And they also have a statement. The company has a statement. They say, "This is a small number of reports relative to the many millions of people who have used Hydroxycut."
SANCHEZ: This stuff is everywhere. You can walk into any -- I swear, any grocery store, any GNC, any drugstore. We are not trying to single out one. All of them have this.
And turn on your TV, you see a commercial for it like every 10 seconds.
COHEN: Oh, I have seen them many times, sure.
SANCHEZ: So, how did this get so big? And what is it? What -- is it medication? Is it something the FDA had earlier approved?
COHEN: No, that is what interesting, is that it's, strictly speaking, a medication. A medication is something that has to go through three phases of clinical trials before it goes to market.
This is what is called a supplement. A supplement doesn't have the same kind of regulation as a medicine does. They simply don't have to go through -- go to the lengths that a drug would to prove that it's safe and effective.
So, Rick, this is not the first time that we have seen this happen. And a lot of people say, this is ridiculous. We ought to start making these supplement manufacturers -- be tougher on them.
SANCHEZ: That's a great point. And there's a lot of folks who are watching us like right now and like me and even perhaps you, being as svelte as you are...
COHEN: Well, thank you.
SANCHEZ: ... from time to time think, I may need to take off a couple of pounds here.
And There's some great looking products out there that promise all kinds of wonderful stuff, like this one, and perhaps many others. How careful do we have to be with that kind of stuff?
COHEN: Well, I think you do have to be careful, because, as we have seen with this product and with other weight loss products, the FDA ends up asking for these voluntary recalls.
It doesn't mean that all of them are problematic, but certainly some of them are problematic. Sometimes, people think, oh, well, it's an herb or it's a vitamin. It couldn't possibly be harmful. That is not true. Just because something is -- quote, unquote -- natural doesn't mean that it's safe and effective. And in fact they have to go through less testing than an actual drug.
SANCHEZ: This is unbelievable. Again, it's -- say the name of it again, because I know...
COHEN: Hydroxycut.
SANCHEZ: Hydroxycut. It's one of the most popular I guess you would call it a supplement.
COHEN: Supplement, right.
(CROSSTALK)
SANCHEZ: That's what it is, right?
COHEN: That would be the word, right.
(CROSSTALK)
SANCHEZ: You don't use drug. You don't use medication.
COHEN: Right.
SANCHEZ: So, supplement. Thanks so much.
COHEN: Thanks.
SANCHEZ: Good stuff. If you learn anything else, let us know.
COHEN: Will do.
SANCHEZ: Condoleezza Rice goes Nixonian and it's caught on tape, suggesting if the president did it, then it can't be illegal. And Americans ask, when did we become a monarchy?
Also, unbelievable torture video exclusive to CNN and it's done in the country that we consider a friend and ally, but the president has just started to speak.
Let's pick up what the president is saying right now. Let's go that, if we can, Rog.
(JOINED IN PROGRESS)
BARACK OBAMA, PRESIDENT OF THE UNITED STATES: This is kind of cool, Robert.
GIBBS: It's way cooler than it seems.
OBAMA: Yes, absolutely. The reason I am interrupting Robert is not because he's not doing a good job. He's doing an unbelievable job.
But it's because I just got off the telephone with Justice Souter. And so I would like to say a few words about his decision to retire from the Supreme Court. Throughout his two decades on the Supreme Court, Justice Souter has shown what it means to be a fair-minded and independent judge. He came to the bench with no particular ideology. He never sought to promote a political agenda.
And he consistently defied labels and rejected absolutes, focusing instead on just one task: reaching a just result in the case that was before him.
He approached judging as he approaches life: with a feverish work ethic and a good sense of humor, with integrity, equanimity, and compassion, the hallmark of not just being a good judge, but of being a good person.
I am incredibly grateful for his dedicated service; I told him as much when we spoke. I spoke on behalf of the American people, thanking him for his service. And I wish him safe travels on his journey home to his beloved New Hampshire and on the road ahead.
Now, the process of selecting someone to replace Justice Souter is among my most serious responsibilities as president, so I will seek somebody with a sharp and independent mind and a record of excellence and integrity.
I will seek someone who understands that justice isn't about some abstract legal theory or footnote in a casebook; it is also about how our laws affect the daily realities of people's lives, whether they can make a living and care for their families, whether they feel safe in their homes and welcome in their own nation.
I view that quality of empathy, of understanding and identifying with people's hopes and struggles, as an essential ingredient for arriving at just decisions and outcomes.
I will seek somebody who is dedicated to the rule of law, who honors our constitutional traditions, who respects the integrity of the judicial process and the appropriate limits of the judicial role.
I will seek somebody who shares my respect for constitutional values on which this nation was founded and who brings a thoughtful understanding of how to apply them in our time.
As I make this decision, I intend to consult with members of both parties across the political spectrum. And it is my hope that we can swear in our new Supreme Court justice in time for him or her to be seated by the first Monday in October, when the court's new term begins.
And with that, I would like you to give Robert a tough time again.
(LAUGHTER)
(CROSSTALK)
QUESTION: ... when you were the senator? QUESTION: Come back.
QUESTION: Will you shape the short list yourself?
SANCHEZ: You're hearing the questions, but they're not getting an answer. The president did make this -- this surprise appearance, as we look at the Washington press corps there.
Let's listen to some of this. Let's go ahead and listen to some of this, Rog. Let's stay with it for a minute.
GIBBS: I have been notified that Judge Souter is stepping down from the Supreme Court.
(LAUGHTER)
GIBBS: I have this from the very highest levels in our government.
Do you see that the guy -- you know, he read the statement, and he left the -- the questions to me.
Well, where were we? Did I know he was coming? No, I didn't know he was coming. I -- no, we would have put a fancy seal up and everything.
QUESTION: (OFF-MIKE)
GIBBS: I -- you know, I -- well, you guys are, too. So we're kind of fair.
QUESTION: (OFF-MIKE)
GIBBS: Where -- where were we before being so rudely interrupted?
QUESTION: Robert, the president said empathy and looking at the way the law intersects with average, ordinary people. You've said it before.
There are some critics who say the court should not be about that. It should be about interpreting the work of legislatures, whether they be federal or state, and the Constitution and, within that construct, law must be made, and that you err, if you're a justice, when you try to find this empathetic approach outside of what legislatures, duly elected, have decided or what legal precedent establishes.
What's the response to that line of criticism?
GIBBS: Well, I -- I would have those critics listen quite carefully to the words of the president just a few moments ago. He's looking for somebody who understands and respects constitutional values, who understands and respects the rule of law, as well as somebody who understands and respects the -- the importance of what they're deciding and how that impacts millions of Americans in their daily lives.
QUESTION: Can you explain now how the process is going to work here (OFF-MIKE)
GIBBS: Not a whole lot differently than when I explained when we didn't have a...
(LAUGHTER)
QUESTION: (OFF-MIKE) didn't want to talk about it.
QUESTION: (OFF-MIKE)
GIBBS: You know, I -- I think the process is largely as I described it. Again, people have -- have been working on judicial...
QUESTION: (OFF-MIKE) left to do, I guess, is the question.
GIBBS: Well -- well, I think it's probably likely that a series or a grouping of people have been looked at and identified. But I think, obviously, as I said earlier, this is something the president will spend a lot of his time looking at personally and before making any cuts to a list or assembling a larger list or finally picking a nominee.
QUESTION: Is he considering -- is he is looking for a Thurgood Marshall sort of nominee, someone who...
GIBBS: That would be good.
(LAUGHTER)
(CROSSTALK)
QUESTION: ... you know, someone who's -- who's representing plaintiffs in cases, someone who's not been on the bench before...
(CROSSTALK)
GIBBS: Well, I -- again, I think you can have a diversity of experience that has -- that might lead to somebody that is currently sitting on the bench, but has in that diversity of their background, somebody who's represented plaintiffs, somebody who's been in public service, somebody who's -- was in a job different than that before coming either to the law or public service.
So, again, I think you'll -- the president will -- will look for all of that, understanding the issues, as he just mentioned, that are of most importance to him.
QUESTION: As far as the timing of this goes, the president just said that he would like to have someone seated, obviously, when the next term begins. But in terms of announcing a replacement, would you like to see that done by July, by August? What is his timeframe for doing that? GIBBS: Well, I think to get somebody seated by the time period that the president's talking about, I think you'd -- you'd have to have a name before -- well before the end of July, obviously. Congress will spend most of August outside of Washington.
Obviously, the -- the change in parties is likely to require the Judiciary Committee on the minority side of the Senate to have to do some reconstituting.
But I think what's important in what the president just said is, there should not be -- and he does not believe there are -- any barriers that would stand in the way of having somebody sworn in and ready to listen to cases by the time the court next begins to hear those cases in a new term.
QUESTION: What did he learn specifically from this process when he was a senator, when he opposed the nominations of both Justice Alito and Justice Roberts?
GIBBS: Well, I -- I would point you to statements that he made on both of those, obviously, in drawing some specific lessons to those time periods. But -- and I think, if you go back and look at one particular on Justice Roberts, I think you'll see a little bit -- a further explanation of what we have all been talking about, in terms of understanding the applicability of the law and that empathy factor that the president spoke about just a second ago.
QUESTION: In terms of the vetting that this administration has already experienced during these first 100 days and more, what has the president instructed the counsel's office to do, in terms of vetting this nominee, so the same thing does not happen that happened with several high-profile nominees?
GIBBS: I will ask him when I next see him. But I think you can be assured that we'll have a rigorous process in place.
Yes, ma'am?
QUESTION: Robert, sorry to take us off topic, but I wanted to ask you...
GIBBS: That's fine.
QUESTION: ... about housing. Since the enactment of the administration's housing relief plans, we've certainly seen rates come down on mortgages to historic lows. I'm wondering if there's any target on the low end that the administration is shooting for and if they're considering any (OFF-MIKE) including the purchase of additional Treasury or (OFF-MIKE) securities to bring that rate lower?
GIBBS: I don't think there is -- at least I have not heard enumerated a specific sort of goal or a -- a point that we're looking for.
I think the economic team and the president are very pleased that, as a result of some of our efforts, combined with other factors, we have seen rates driven down to their lowest point since -- I think records have been kept since the early '70s.
GIBBS: You've heard the president speak many times about the importance of that for people that are lucky enough to refinance their homes, that, in many cases, you'll have roughly the equivalent of a tax cut for each individual.
I think it also puts people farther away from any potential foreclosure, because their payments obviously are something that are even more affordable.
And the president will continue to look at strategies and improve on the plans to ensure that that group of people that, because they're -- the ratio of what they owe to the value of their house makes...
SANCHEZ: All right. As they move the conversation along, obviously, this caught us by surprise.
We welcome you here to the world headquarters of CNN. I'm Rick Sanchez. The president of the United States made a surprise appearance moments ago at the White House Briefing Room, actually, giving the news to reporters, rather than relying on Robert Gibbs to give -- Robert Gibbs to give the news to reporters.
There it is. As the president came out, you could see the reporters stand up, and then the president starts addressing this. We are going to replay a portion of this in just a little bit, in case you missed it.
By the way, here's the upshot of this. OK? The president comes out and he says: I have just received a letter from Supreme Court Chief Justice -- or Justice, I should say, David Souter. Here's what the letter says.
I'm going to read you part of that. He says "When the Supreme Court rises for the summer recess this year, I intend to retire from active service as a justice" -- again, this coming from David Souter. And now it is official.
And now you can understand why there's going to be so many repercussions and so many other parts to this story.
Jill Dougherty was there when this whole thing went down in the briefing room. And she's joining us now to talk about it.
Can you take us through how this happened, how the president even showed up. Presidents don't usually show up all of a sudden in briefing rooms, do they?
JILL DOUGHERTY, CNN FOREIGN AFFAIRS CORRESPONDENT: They don't, Rick.
But what was going on was, they had to wait or they wanted to wait until that official letter of notification came from Justice David Souter -- it was brought over by a marshal here to the White House -- before that formal letter was accepted, and then they could, you know, come out with their reaction. And we were sitting there. We were asking questions. I asked questions about -- of Robert Gibbs, how is this going to happen? And Gibbs was very reluctant, he said, to get into much of the detail. Obviously, he didn't want to upstage that letter.
So, practically, as things are dying down, the president appears and then makes his statement. So, it was, you know, a dramatic moment. And it's very interesting, because, you know, Rick, the president for 10 years taught constitutional law.
And this is something that's very dear to his heart. It's something he's intellectually very interested in. And, as we were talking with Robert, we got a little bit from him about how people are -- how the president actually would participate in the discussion and the decision on whom he would nominate.
SANCHEZ: I was curious as to what he said, too. He said he is going to pick someone who understands the realities that people go through -- quoting here -- "the realities that people go through every day and someone who understands the rule of law."
What's he saying here?
DOUGHERTY: Well, it is something that he said during the campaign a lot.
And what he is arguing is, you know, traditionally, at least recently, in modern Supreme Court history, they have chosen people who were judges primarily. And, yet, what the president is saying is he is looking for somebody with life experience.
He said that justice is not abstract. How it affects peoples' live is the most important thing. And during the campaign, speaking to Planned Parenthood, in fact, he had some very interesting specific comments. He said somebody who understands what it's like to be African-American, somebody who understands what it's like to be a teenage mother, whatever, the reality of people's lives, as opposed to just the hard and dry legal facts of a case. So...
(CROSSTALK)
SANCHEZ: Well, you know, it is funny, because we got just a hint of it there from one of the questions he received right away. But there are those -- and some of his critics, I'm sure, will argue, no, Mr. President, the law is the law is the law. And that is not -- we don't want people interpreting it.
By the way, hey, Rog, can we do this? Since we have got Jill here and she was just talking about this, I'm not going to interrupt. We're -- she and I are not going to talk for a moment. Let's -- let's let people see that moment when the president just came out, to the surprise of people like Jill here who were there asking questions as they expected of Robert Gibbs, when suddenly the president walked out. Let's take that.
(BEGIN VIDEO CLIP) QUESTION: Mr. President.
QUESTION: Mr. President.
OBAMA: I'm sorry, but Gibbs is screwing this thing up.
(LAUGHTER)
OBAMA: If there's a job to do -- please, everybody have a seat. If there's a job to do, you've got to do it yourself.
(LAUGHTER)
GIBBS: See you guys later. Have a good weekend.
OBAMA: This is kind of cool, Robert.
GIBBS: It's way cooler than it seems.
OBAMA: Yes, absolutely. The reason I am interrupting Robert is not because he's not doing a good job. He's doing an unbelievable job.
But it's because I just got off the telephone with Justice Souter. And so I would like to say a few words about his decision to retire from the Supreme Court.
Throughout his two decades on the Supreme Court, Justice Souter has shown what it means to be a fair-minded and independent judge. He came to the bench with no particular ideology. He never sought to promote a political agenda.
And he consistently defied labels and rejected absolutes, focusing instead on just one task: reaching a just result in the case that was before him.
He approached judging as he approaches life, with a feverish work ethic.
(END VIDEO CLIP)
SANCHEZ: Jill, you know, you and I have been for a while and we have watched a lot of president and seen a lot of political doings.
I don't think I have ever seen a president literally walk out and elbow his spokesperson out of the way. I don't think I have ever -- and then say, you know, with levity, of course, this guy's screwing things up.
That was a heck of a moment there.
DOUGHERTY: Well, it was.
And, you know, to have the president there explaining this, this is a -- Rick, you know, when you get into the discussion -- and this is going to get hot and heavy, because when you're talking about a Supreme Court nominee, there are a lot of people who have very, very strong positions on this.
So, what he was doing, he's coming out. He is explaining it, praising Souter. And look at the things he was praising him for, fair-minded, independent, no political agenda. And now the president is saying, when I make my nomination, I'm going to talk -- he promises to talk with both parties.
And he also says that he hopes to have -- expects that there will be no barriers to having that person sitting on the bench by the beginning of the new session, which would start October 1.
And Rick, also, I want to correct something. I think I did say that we were expecting the marshal to bring a letter, but, when I listened to the president there, he was saying, I was on the telephone.
SANCHEZ: Yes.
DOUGHERTY: So, he actually may have gotten -- talked, instead of that formal let's have a letter.
SANCHEZ: Well, it happened really fast, and it's not like we had a chance to prepare for it, right?
Thanks so much, Jill Dougherty, following things there for us from the White House.
Let me bring in two more people, A.B. Stoddard standing by. And who else do we have who is standing by with us? Gloria Borger is joining as well.
Gloria, good to see you.
Hey, Gloria, let me start with you, because I was listening to the Bill Bennett show this morning on the radio on my way to work, as I often do, and I heard Michael Steele use this opportunity, talking about David Souter.
And what he said was something akin to this. This is why Republicans needed to vote for John McCain. This is exactly why -- making the point and hammering this, trying to make this almost a talking point for why Republicans should not abandon their party now.
What's the strategy here? What's going on there?
GLORIA BORGER, CNN SENIOR POLITICAL ANALYST: Well, this gives the Republicans an opportunity to gather their base and to raise money.
Supreme Court nominees are a great way for political parties to raise money. And while -- they have already been on the phone. They have already hosted a conference call last evening. I spoke with one conservative who said that they were talking about the potential nominees, already listing some of the names, and how they would oppose them. And, also, you know, conservatives are making the case. We have an interesting case here with a president who was actually a senator and is on the record not opposing judicial filibusters.
So, if they should decide to filibuster, they're clearly getting ready to say, well, Mr. President, you know, you didn't oppose the idea of a filibuster when you were in the Senate.
SANCHEZ: A.B., you know what is so strange about this? You really never still know what you are going to get. I mean, look, Souter was appointed, correct me if I'm wrong here, but he was appointed by Bush 41, supposedly to be a conservative.
He is not. He has been ruling if -- moderate or if anything stretching himself a little over to the left. So, as -- knowing that, does the president go through a litmus test -- litmus test and get a lot of heat for it? What do you expect is going to happen in this battle, as Jill Dougherty called it?
A.B. STODDARD, ASSOCIATE EDITOR, "THE HILL": Well, I think that President Obama made clear today he is looking for someone who's independent and has a lot of integrity and honors the Constitution. And luckily he has some time.
But what this is going to do, of course, is -- is -- you know, Gloria's right. It is going to kind of rally the Republican base, rally the Republicans in leadership to try to rev up to oppose whoever comes, whoever comes our way.
President Obama...
SANCHEZ: Why did you say whoever twice?
STODDARD: Republicans absolutely have to oppose this person and call them a liberal, no matter what. It's all they have left at this point. So, we can expect it.
(CROSSTALK)
SANCHEZ: In other words, whether they are or not, is that what you are underscoring?
STODDARD: No, but I have a feeling -- what I want to say is, I really do have a feeling that President Obama is not going to pick a surprise justice and is not going to pick a David Souter, who shocked him. I think he's going to pick someone who is going to be pretty solidly liberal.
It's not going to change the makeup of the court. This is not Anthony Kennedy or Clarence Thomas retiring. And I think Barack Obama is going to know who he's getting before he picks them.
(CROSSTALK)
BORGER: Interestingly, Rick, I think the pressure that the president is going to get is going to be from his left flank. STODDARD: Yes.
BORGER: He is going to be getting a lot of pressure from Hispanic groups, from women's organizations, from all kinds of special interest groups, who want a justice of their own making, right?
And the president has had a little bit of problems with his -- with his left flank. He's also had problems on the right. So, it is going to be interesting to see whether he can pick somebody that -- that -- that everybody in the Democratic Party supports.
SANCHEZ: That's absolutely fascinating. And I think you are right.
I mean, I think, the -- for the sake of actual argument, the Republicans are really going to be on the sideline on this one, unless things change.
BORGER: Well...
SANCHEZ: So, you're going to have -- you're going to have people in the Democratic Party who are going to be saying, no, you got to have a Hispanic, you got to have a woman.
BORGER: Right.
SANCHEZ: You got to have somebody who agrees with either their view of abortion or gay rights or whatever it is. And you're going to have the other moderates in the Democratic Party who are wanting to take the president back to the middle. How certain are we that we're going to probably see something like that, guys?
(CROSSTALK)
BORGER: We are going to have it. We are going to have that fight that the Democratic Party. There's no doubt about it.
But, again, it depends. You know, the president is going to have to walk a fine line here. But the key to me is what he said today. It is sort of interesting, this notion of empathy. The big question is, does he just go to a -- somebody who has been sitting on the federal bench, or does he goes go in a different direction and pick a governor or somebody who has a life experience, which he seems to say is very, very important in a Supreme Court justice?
SANCHEZ: A.B.?
STODDARD: Yes. I could hear that. I think when he talks about diversity of experience, I think he's not going to pick someone who has spent their life on a bench.
I also think that this point about the Democratic Party is really -- this is actually not good timing for him. If you look at the first 100 days, kind of a dog and pony show, get a stimulus out, get a budget blueprint out. Now he's got 60 votes in the Senate likely soon. The real fight in the Democratic Party begins, the liberal flank wanting a public plan for health care, the moderate flank fighting him on all sorts of things, on farm subsidies, on student loans, everything across the board.
Now, we will really -- the Republicans are going to be, as you said, Rick, on the sidelines. We're going to see this pressure brought to bear on who the different groups want, you know, for a justice, and, also, how they're going to get health care and energy out the door by October.
(CROSSTALK)
BORGER: But I think the fight will come in trying to exert some influence over the president, on who he might choose.
But, once he chooses a nominee, I think most of the Democrats, maybe save Arlen Specter, will get in line behind him.
SANCHEZ: By the way, Gloria, I'm sorry to say that we just got a call from Wolf Blitzer's gang and that you have got to go get ready for his show.
(LAUGHTER)
BORGER: I do.
SANCHEZ: It's like your mother called. You have to go home.
BORGER: I have to go home now. See you, Rick.
(LAUGHTER)
SANCHEZ: Gloria, thanks so much.
BORGER: Sure.
SANCHEZ: You know what we're going to do? Let's replace that square if we can with Ashleigh Banfield, who is joining us now as well, looking at this from a legal standpoint.
Ashleigh, thanks for being with us.
ASHLEIGH BANFIELD, TRUTV ANCHOR: Hey, Rick.
SANCHEZ: Hey.
By the way, let me ask you guys something. This is something that could turn out to be a problem here for the president as well. We talked a little bit a while ago that, look, there's no Hispanics. And there was a talk during the Bush administration that we would see the former -- Alberto Gonzales actually perhaps be nominated at one point.
If you nominate someone because they're a woman or someone because they're Hispanic, and you say, it's just their turn, boy, won't that also start a huge argument among people who are going to say, and rightly so in many ways, no, you have got to go out and you got to get the best person who's out there, and it doesn't matter what their demographic make is?
Ashleigh, give it a shot.
BANFIELD: Well, I'm reading your blogs. And you're right. It's already started.
People have already voiced their concerns about picking because of quota. But I think what President Obama has said, Rick, is that he wants a diverse experience on that panel. And when you bring different ethnicities or women onto that panel, that can be represented.
But I want to tell you something else about the broad experience. When you choose somebody who's outside of, say, a judicial bench, you don't know the record is. So, you might get a Souter surprise down the line. So, the advantage of picking somebody who has already got the judicial experience is that you can kind of look at the record and know how he or she makes decisions and thereby maybe not get a surprise halfway into your term.
SANCHEZ: A.B., how ugly can this thing get? I know it has in the past.
STODDARD: Well, these -- I mean, they -- these, obviously, can be among the most volatile debates.
I have a feeling that Gloria is right, that there's going to be a lot of backroom pressure from different groups in the Democratic Party, but that ultimately no matter who Obama selects they're all going to get behind and obviously they're probably going to have the numbers in the senate to be able to shut the republicans out. I think that -- again, I'm just going -- politics is always part of this and I agree with you. I think the Hispanic community who feels that they didn't get enough representation after Bill Richardson fell away in the cabinet and I think there will be a lot of pressure to nominate a Hispanic. Maybe he can do so with Sonya Sotomayer and get a woman and Hispanic at the same time. But remember whoever Barack Obama picks, he's going to say is the most qualified. He is going to. It doesn't matter what color they are. If they wear a skirt. He's going to say that they are the best.
RICK SANCHEZ, CNN ANCHOR: I remember the hearings during the Clarence Thomas situation and that was a veritable saga. And that was ugly. And one can't help but wonder if something like that could happen again in this political environment. A couple of things are going to happen here, A.B. stay with us, hopefully we'll get Ashleigh back you saw that we lost her. There are already names out there being circulated, whether they're the pick or there's going to be a surprise we don't know but we're going to share some of those names with you. Also, very few people know as much about the Supreme Court of the United States than our own Jeff Toobin. Written books about the subject, as a matter of fact. When we come back from the break, we're going to bring Jeff into the conversation, as well. Stay with us. Breaking news on our watch. We'll be right back.
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SANCHEZ: Welcome back. We're following breaking news. I'm Rick Sanchez. This is the world headquarters of CNN. Just moments ago as we were beginning our newscast, the president of the United States walked into the briefing room essentially elbowed his presidential spokesperson out of the way. Reporters stunned stood up. Gibbs didn't know quite what to do with himself as you can see there. Leaves the camera shot and then the president announces that he's just gotten off the phone with David Souter and says that it is now official because David Souter has told him so, that he will retire. David Souter as Supreme Court justice will retire.
We are following this story. Let's do this as we bring our guests in and I guess the best guy to go through this with is Jeff. Let's look at those names that we're looking at right now and maybe Jeff can make some sense of this and tell us who's who here and why. There it is. We start up on the very left with Sonia Sotomayor. Jeff take us through this, who are these people?
JEFFREY TOOBIN, CNN SENIOR LEGAL ANALYST: Sonia Sotomayor is a judge on the federal court of appeals in New York. She is of Puerto Rican ancestry so she would be the first Hispanic on the court. Diane Wood is a judge on the federal court of appeals in Chicago. A former colleague of President Obama, on the faculty of the University of Chicago law school. She is 58 years old which might be a little old for what President Obama wants to do. Certainly she is a highly respected judge. Who's next there?
SANCHEZ: Jennifer Granholm.
TOOBIN: Jennifer Granholm, governor of Michigan, former attorney general of Michigan. And one of the big decisions President Obama has to make is, does he want to go the traditional route of federal appeals court judge? Because all nine justices on the current court are former federal appeals court judges but many of the great justices in history, Earl Warren, former govern nor of California. Hugo Black, former senator from Alabama, were politicians and never judges. So Jennifer Granholm would be in that tradition.
SANCHEZ: Let's go to the other three that have been named and certainly this does not give any kind of assurance that these folks are even going to be called. Elena Kagan is next, what can you tell us about her.
TOOBIN: Elena Kagan is the current solicitor general of the United States, the government's chief lawyer before the Supreme Court, the former dean of Harvard law school. She is certainly the youngest of the serious candidates. She is 49 years old. The question with Elena Kagan will be no judicial experience. Not much experience as solicitor general, hasn't even argued a case yet.
SANCHEZ: Leah Ward Sears would be the fifth supposed candidate at this point, what can you tell us about her? TOOBIN: The chief justice of the Georgia Supreme Court has announced that she'll be stepping down shortly, very respected judge. Has a whole list of firsts. First African-American, first woman to do pretty much anything in the legal system of the state of Georgia. The question is, there has not been a state court judge promoted to the federal bench in a long time since Sandra Day O'Connor although that was an example that worked out pretty well most people think.
SANCHEZ: Finally, here's a name that we have all heard about, he's been in the news, a little more associated with the political side as much as the legal side, Deval Patrick.
TOOBIN: Deval Patrick of course is currently the governor of Massachusetts. He was the assistant attorney general in charge of the civil rights division under President Clinton. He was general counsel of a major corporation in private practice. Very diverse legal experience. Of course, he's a man and many people think it's going to be a woman. But he, again, would be in that tradition of picking someone who had not been a judge but who has broad other kinds of experience to be on the Supreme Court.
I think it's important to emphasize right now, we all have our lists and I think that list of six is a pretty good list. I don't think this -- the White House has a short list yet. My reporting suggests that they don't so the idea that it's down to six is really somewhat -- it's misleading in the sense that it could well be someone who's not on that list.
SANCHEZ: Jeff, let me ask you a question about balance on the court because that seems to be the one issue that fascinates most Americans. Which way will the court go? The left, right, more to the middle? Does this change things at all or will it?
TOOBIN: Probably not immediately. The court is very polarized now. There are four very conservative justices. Chief Justice Roberts, Scalia, Thomas and Alito. There are four liberal justices, Stephens, Souter, Ginsburg and Briar, Anthony Kennedy is in the middle. So Souter's departure, he will almost certainly be replaced by someone who shares generally his judicial philosophy. So in the short term the results of the cases probably won't change that much.
But the Supreme Court's not about the short term. It is the long term. And Obama may well have many appointments so the fact that there's not going to be a change right away doesn't mean that if over the course of his four or eight years he could completely reshape the Supreme Court.
SANCHEZ: So, you know, A.B. Michael Steele when I heard him this morning on the Bill Bennett Show, he was correct. I mean, the fact that Obama is essentially replacing -- I'm going to use these terms loosely but a more liberal judge with what will eventually probably be a liberal judge doesn't really change things a lot. But if John McCain was the president of the United States today, this court would be changing in extreme ways, wouldn't it?
STODDARD: Yes. What's interesting during the campaign last year was how much this was a topic for the right. In their fundraising letters, in their get togethers and their literature and their appeals it was always the next president is probably going to get to name three new justices. This is going to be devastating if we elect the wrong person. While the democrats knew this, it was far more a concern on the right side of the spectrum, just interesting. It was an appeal made by republicans and the campaign not so much by the democrats but that was the thinking that it was going to be three possibly as Jeff said more.
SANCHEZ: For those of you joining us now, coming home from work, we welcome you. By the way, it is official now. The president has received a phone call and spoken to Justice David Souter who has told him apparently in no uncertain terms he will, in fact, retire. Ashleigh, how much of a call do you think we'll hear to see another woman justice? There's one there with Ginsburg of course but there were two before, correct.
ASHLEIGH BANFIELD, ANCHOR, "IN SESSION": Yeah, you know there were. Sandra Day O'Connor, of course, stepping down. I don't personally for what it's worth I don't think that's going to be as big of an issue as a liberal conservative issue and I think a lot of people get very confused to what it means to be liberal or conservative when it comes to justices. Because there's your social view of liberal or conservative and then there's your judicial view of liberal and conservative and how you interpret law and that's a whole other kettle of fish so I don't think anybody can jump out right away when some of these names come up and label them so quickly before they can actually look at their records.
SANCHEZ: Since the president of the United States, the former president -- Jeff, since the former president of the United States talked a lot about perhaps appointing a Hispanic, there was a lot of talk about Alberto Gonzales which looking at it in hindsight now doesn't look so interesting or good.
TOOBIN: Right.
SANCHEZ: Will there be some pressure on the White House to say, look, we have Sotomayor, we have some others out there, we might be needing to go in that direction or at least give it a real good look? Politically, if nothing else.
TOOBIN: Certainly, there will be pressure to give a look but I don't think pressure is all that big a factor in this situation. Barack Obama has 60 votes in the United States senate. The overwhelming likelihood is they're going to confirm whoever he puts up. Sure, some groups may be unhappy but democrats are going to rally around him and there has never been a successful filibuster against a Supreme Court nominee. So the republicans are dealing here with from a position of great, great weakness. So, yes, Hispanic groups will want a Hispanic. As for the woman issue, I think that's somewhat different because, you know, the legal profession in the United States is almost half women. Law schools are more than half women. The idea that there's only one woman on the Supreme Court out of nine is -- does seem like a considerable imbalance so I think a woman is a very likely choice here. SANCHEZ: You know, it is interesting because you know we're going to be hearing an awful lot about Roe during this discussion. We'll pick that up when we come back, as well as how liberal a liberal, think about that. How liberal a liberal? As we go out, let me share one of your thoughts. A lot of folks are watching us right now as they get this news and there's at least one on Myspace who's telling us who they're rooting for. Yay, they finally talked about Sonia. Crossing fingers, toes, eyes and tongue for Sonia Sotomayor. We'll be right back.
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SANCHEZ: We've got some breaking news happening to us again during our watch. This having to do with the Supreme Court of the United States. We've got a great panel that's assembled here for us. We've got Ashleigh Banfield who's been filling us in on this decision with her insight. We also have A.B. Stoddard who's joining us from The Hill and a walking encyclopedia of everything that has to do with the Supreme Court, our own Jeff Toobin, of course. For those of you who didn't see this because you're joining us a little bit late, I want you to watch how this thing went down. The president of the United States surprisingly and shocking reporters there in the briefing room of the White House, just walks out, literally elbows the presidential spokesperson, the White House spokesperson out of the way and gives this announcement. Let's here it.
(BEGIN VIDEO CLIP)
OBAMA: Hey?
ROBERT GIBBS, WHITE HOUSE SPOKESMAN: Mr. President.
OBAMA: I'm tired of Gibbs screwing this thing up. You know, if there's a job to do -- please, everybody, have a seat. If there's a job to do you have to do it yourself.
GIBBS: See you guys later. Have a good weekend.
OBAMA: This is kind of cool, Robert.
GIBBS: It's way cooler than it seems.
OBAMA: Yeah, absolutely. The reason I'm interrupting Robert is not because he's not doing a good job, he's doing an unbelievable job but it's because I just got off the telephone with Justice Souter. So I would like to say a few words about his decision to retire from the Supreme Court. Throughout his two decades on the Supreme Court, Justice Souter has shown what it means to be a fair minded and independent judge. He came to the bench with no particular ideology. He never sought to promote a political agenda. And he consistently defied labels and rejected absolutes, focusing instead on just one task.
(END OF VIDEO CLIP)
SANCHEZ: There you have the president making the announcement. Let's bring our panel back in. The president goes on by the way to say that he's going to make sure that he picks someone that respects the law but also has the consideration of the average American, as well. A.B. I know you have to get going. You have deadlines you have to meet, as well. Let me ask you this question. Very simply. One case. Roe versus Wade. And how likely or how much pressure will be on this president to choose someone with pro choice tendencies as in the past republicans have chosen people with pro life tendencies?
STODDARD: I really am convinced he's going to pick a pro choice nominee. It was interesting at his press conference on Wednesday night the way that the president handled the subject of abortion, pushing off the idea that he would pass the freedom of choice act and the congress this year and really addressing this for the first time using the term pro life which is how pro lifers like to be referred to, not anti-abortion rights. And really saying I don't want to talk about our differences. This is not a priority for me right now and really pushing it off the legislative table. That said, he doesn't want to stir up controversy on that issue right now but when it comes to this justice, I would imagine that he is not going to shock us and pick a pro life nominee.
SANCHEZ: A.B. thanks so much for being with us.
STODDARD: Thank you.
SANCHEZ: Jeff, how big of an issue will this be?
TOOBIN: The number one issue. It always is in the Supreme Court and the difference between the Democratic Party and the Republican Party is one party's pro choice the other is pro life. And democrats pick pro justices and republicans pick pro life justices. And that's the way it was under President Bush and that's the way it's going to be under President Obama. It is a 100 percent guarantee that the justice that -- the future justice that President Obama nominates including all the ones he will over the course of his term will protect Roe v Wade and the right to choose. No doubt about it.
SANCHEZ: Ashleigh how likely is it that we'll be hearing that argument about the litmus test except this time we'll be hearing from the other side, saying there should be no litmus test, there should be no litmus test.
BANFIELD: I think Jeffrey's right. But the only wild card is that, you know, absolutely people vote by party, except that it was never expected that in 1992 when planned parenthood versus Casey came before that court that David Souter would in fact join -- create a joint opinion with Sandra Day O'Connor and Anthony Kennedy and Roe v. Wade would not be overturned back then. Everybody thought it might actually. So there's always that wild card that you can look to, even when you think you have a certain person on the panel.
SANCHEZ: Jeffrey, how did that happen? How did David Souter, picked by George H.W. Bush as what he expected would be a conservative turn out to not be that way? How does that happen?
TOOBIN: Well it's really a great story. What happened was, the first President Bush never really cared that much about these sorts of issues. The Berlin Wall had just fallen. He was completely preoccupied by foreign policy. He was lobbied very hard by Senator Warren Rudman from New Hampshire, his White House chief of staff John Sinoonoo(ph), both from New Hampshire. They wanted a nominee who would be confirmed easily, who would not distract from the foreign policy agenda.
And frankly Bush dropped the ball according to most conservatives and they are bitter towards the first President Bush to this day. And no president since 1990 including President Bush, has ever made that mistake again because a year later, President Bush nominated Clarence Thomas who has been every bit as conservative as the base of that party wants. So yes, the Souter example was -- turned out to be somewhat of a surprise but it hasn't happened since and it's not going to happen again.
SANCHEZ: You guys hang on, when we come back we're going to be talking a little bit about the vetting process. For those of you joining us, there is big news, David Souter has made it official, he is in fact retiring from the U.S. Supreme Court. The president came out and briefed reporters about this and the phone call that he had with Justice David Souter. Our guests are coming back in just a moment, stay with us.
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SANCHEZ: Jeff Toobin for Supreme Court justice, are you kidding me? Yeah, people have been watching our newscast and they seem to think that Jeff knows what he's talking about. We'll ask him about it in just a little bit. But let me do this as we continue this news that we're bringing to you, breaking news by the way that happened at the beginning of this hour that in fact David Souter will be retiring as a Supreme Court justice. The president came out and briefed reporters. We have been talking about it for about the last half hour or so. Wolf Blitzer is joining our panel now to pick up the conversation. Wolf, this is important news and it's the kind of information you know you share with viewers, thinking that this isn't the end of this, this is the beginning of a huge news story, isn't it.
WOLF BLITZER, CNN ANCHOR: It certainly is and remember, David Souter, the justice is 69 years old and it's most likely that the president of the United States is going to nominate someone either in his or her 40s or early 50s. If they live a nice long life that could be 40 years with a relatively liberal justice on the Supreme Court. It shows that elections do really matter and that the president of the United States has an enormous impact on justices of the Supreme Court long after he's re-elected. If he stays in office for eight years, for decades afterwards, he's going to have an impact based on that decision on the United States Supreme Court. So it's really significant what's happening right now, you're all over this story, and we're going to be all over it in "THE SITUATION ROOM" as well.
SANCHEZ: Thanks so much Wolf, we'll look forward to seeing you. In the meantime, we're getting a lot of tweets and a lot of responses from folks on Myspace and Facebook as well. Let's go to this one over here if we can. Zack see if you can shoot me that shot right there, let's take this to Ashleigh and Jeff as well. How about a judge that won't throw elections, allow big business to eat the little guy, represent our country and people laws. Now there's obviously still some resentment out there in America about some of the decisions that this particular court has made. And when you think of that resentment one name that pops up for me is Antonin Scalia. Is there someone out there and I'm sure a lot of democrats and liberals will be asking this question, should the president find someone out there who can go toe to toe with Antonin Scalia? Jeff pick that up for us.
TOOBIN: I think that is a very interesting question in terms of the atmospherics of the Supreme Court. There are opposite numbers to Antonin Scalia on the Supreme Court, Ruth Bader Ginsburg and Stephen Bryar, both appointed by President Clinton. John Paul Stevens appointed by President Ford if you can believe that. But what is different about the three liberals remaining on the court is that they are not particularly outspoken. If you go to an oral argument at the court the real tough questioners, the people throwing the bombs at the lawyers are always Antonin Scalia and Chief Justice Roberts. So I think there are definitely some liberals out there who want a fighter, not just another liberal vote on the court. And again, that's one more factor that President Obama is going to have to consider.
BANFIELD: Although they have a nice silent voice in Clarence Thomas. Jeff you probably can answer this, isn't it accurate to say he's almost never asked a question in arguments?
SANCHEZ: I've heard the same thing. Is it true?
TOOBIN: He has gone entire years without asking a question.
BANFIELD: Yeah, crazy.
SANCHEZ: What does that say?
TOOBIN: He gives various answers to that, he says he doesn't like to interrupt the lawyers, because he's asked about it when he appears at universities and things. My own feeling is that he doesn't want to give his liberal critics the satisfaction of pointing out that he's changed his practice so I think he's locked in on not asking questions, but if you go to an argument at the court, it is very weird because there are eight justices who are really engaged and really prepared and ask a lot of hard questions and Thomas sits there and he never asks questions, never, ever, ever.
BANFIELD: Isn't sad Jeff that you have to actually go, you can't watch it on television? I bring this up for a reason because Justice Souter was against cameras in the courtroom in the Supreme Court and now with his departure maybe there will be somebody on the panel who doesn't feel that way. We've been huge advocates here at Court TV Now in Session for getting that kind of access, getting Americans to be able to see this kind of access.
SANCHEZ: Aren't we beyond that with the technology moving the way it is, Jeff is there really not any excuses left?
TOOBIN: There are no excuses except that we're the Supreme Court and we don't like it. Arlen Specter now much in the news has actually proposed a bill trying to force the Supreme Court to have cameras in the courtroom. I don't think that's probably even constitutional but I think it's indicative of the pressure. What I think will happen first is the court will have audio releases first and video will come later.
BANFIELD: We're getting it in dribs and drabs now but it's not --
SANCHEZ: Out of time guys. Ashleigh, thanks so much for being with us.
BANFIELD: Thanks for the invitation.
SANCHEZ: Jeff, the Twitterers like you man.
TOOBIN: I like them, too.
SANCHEZ: Wolf Blitzer standing by now to take you into "THE SITUATION ROOM."
BLITZER: Thanks very much Rick, happening now, breaking news, President Obama begins choosing his first Supreme Court nominee. He just confirmed Justice David Souter's plans to retire and he promised to find a worthy replacement. The president's options and conservatives' plans to fight him every step of the way.
