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Supreme Court Justice Antonin Scalia Dead at Age 79. Aired 5-6p ET

Aired February 13, 2016 - 17:00   ET


[17:00:00] POPPY HARLOW, CNN ANCHOR: There's a major debate tonight, the stakes could not be higher. Just six Republican candidates on stage with Donald Trump and Ted Cruz at the center of what is sure to be a political slug fest. On that, and one that will drag out for another seven days until South Carolina voters go to the polls. As one CNN contributor put it, this is southern charm with elbows. It is the showdown in South Carolina tonight's GOP debate coming exactly a week before those South Carolina primary voters will make their choice.

CNN political reporter Sara Murray is with us live from Greenville, South Carolina. Senior political editor for The Daily Beast, Jackie Kucinich joins me as well. Thank you ladies both for being here. Let me begin with you, Sara. The feud between Donald Trump and Ted Cruz is escalating. You've got Trump even tweeting yesterday that he may have to sue Ted Cruz for where he is born. You've got Ted Cruz calling Trump's campaign sleazy. But interestingly we haven't seen them necessarily duke it out on the debate stage. Do you think that changes tonight?

SARA MURRAY, CNN POLITICAL REPORTER: Well, like you were just saying, Poppy, South Carolina is known for dirty politics for tough politics. I think we're already seeing that play out between Donald Trump and Ted Cruz. In the last debate Ted Cruz would not take Donald Trump on on stage. And it will be really interesting to see if that changes tonight because this is the state where Ted Cruz is trying to prove that he can win in places beyond just Iowa. And there are plenty of evangelicals here in South Carolina to help him do that. But in order to do that he does have to get through Trump. Trump has led in the latest polls here for quite a while. And I can tell you when Trump has events in South Carolina they are big. They are loud. And there are people who have driven hours to see the billionaire businessman. So I think if Ted Cruz doesn't take Donald Trump on stage tonight that would potentially be a big missed opportunity for him.

HARLOW: And also, Jackie, to you, I mean, look, Marco Rubio is no question going to be in the spotlight tonight after that what he admits was a poor performance in the last debate. He says that's part of why he didn't do as well as he would have liked in New Hampshire. You don't have Chris Christie though on the stage tonight going after him. Can Rubio shake off what happened in the past debate?

JACKIE KUCINICH, SENIOR POLITICS EDITOR, "THE DAILY BEAST": Well, that remains to be seen. But, yes, Chris Christie surely threw him off his game and threw him off his strategy. Remember, going into Iowa, they had a three, two, one strategy. Come in third in Iowa, come in second in New Hampshire, and come in first in South Carolina. And you know, he's thrown off his rhythm here. Now, he's done his best to sort of try to kick the robot moniker that Chris Christie placed on him. But this debate is a big moment for him because he has a lot to lose.

HARLOW: And to you, Sara, any insight from his camp into how he may be doing that? I mean, what he has to be really careful of, right, he's not repeating the same line over and over.

MURRAY: Right. And his campaign is being very tight lipped about how they're preparing for this debate but I think it's interesting if you look over, you know, the few days since the New Hampshire primary. Marco Rubio has really changed his approach. He's spent a lot more time talking to reporters. He is a little bit more off the cuff in his events. He's trying to show a looser side of Marco Rubio on the trail. And I have to say, Poppy, this is what makes places like New Hampshire, will make these early states really great candidates, is mixing it up with voters, mixing it up with reporters. And so it's possible that this entire week has been preparation for a looser and just sort of more active and more responsive Marco Rubio who is ready to take a punch and maybe throw a punch rather than just repeat his talking points.

HARLOW: Jackie, I think it's interesting. I do think we've seen a shift in Donald Trump's tone in the last week. He keeps emphasizing, you know, I'm a nice guy. His campaign manager Corey Lewandowski coming out and saying this is going to be a, quote, "positive campaign." He faces steep competition from Ted Cruz in South Carolina especially with that evangelical vote and Cruz has pointed to Trump and said Trump is running a, quote -- has a, quote, "pattern of sleaze." Where do those -- where does that tit for tat go tonight?

KUCINICH: I think it continues. I mean, even though Donald Trump says that he is being a nice guy, he still threatened to sue Ted Cruz and repeated a lot of nasty things about him. So, you know, you have to imagine that Cruz is going to try to go after Trump and get under his skin because that's when Trump looks bad, right? When he looks irritated, when he looks like he can't really handle the argument that is being posed to him. That's what I would imagine Ted Cruz is going to try to do tonight.

HARLOW: Jeb Bush, Sara, Jeb Bush is bringing in his brother for the first time on Monday to campaign with him in the days leading up to the primary. Julian Zelizer, presidential historian told me last hour that is a risky move and a move that looks desperate despite the former president's popularity in the state, you've also got all the Republicans and other candidates who will bring up, you know, the Iraq war. Trump already has in one of his tweets calling it a week weak move. Talk to me about what South Carolina voters are saying about seeing the former president come on Monday.

[17:05:04] MURRAY: Well, this is just such a tough line for Jeb Bush to walk because, you're right, there is very deep affection for the Bushes here in South Carolina. And this is a national security state so there is an active debate about the Iraq war and whether having George W. out will hurt him or help him. But I think the reality about Jeb Bush is when you talk to voters, even if there are people who like the Bush family, even there are people who are voted for previous Bushes, there is a certain sense of fatigue there and that applies to Jeb.

And when you look at his campaign here he does need to have a strong debate tonight but also a strong finish here. He is hoping that he can get to Florida, that he can beat out Marco Rubio there and then win on saying, you know, I have the best organization, best prepared to compete in some of these later states. But it's an uphill battle for him. And the reality is, his Super PAC is spending a lot of money here on South Carolina already and so far that's not really boosting his numbers very much.

HARLOW: All right. Sara Murray, Jackie Kucinich, thank you very much. I know, you will be watching, we will be watching. We have special post-debate coverage tonight right after the Republican debate that is hosted by our very own Erin Burnett and the best political team in television that all starts immediately after the debate only right here. You can also hear how the candidates are reacting, how they think they did tomorrow morning. Jeb Bush and Marco Rubio will both be on "STATE OF THE UNION WITH JAKE TAPPER," that is at 9:00 a.m. Eastern right here on CNN. We got to take a quick break. I'll be right back.


[17:09:44] HARLOW: All right. I have some very sad news, some breaking news just in to us here at CNN. United States Supreme Court Justice Antonin Scalia has died. According to sources, the 79-year- old associate justice was found dead this morning on the property of a luxury resort ranch in Texas. Those sources tell us at CNN that it appears that Justice Scalia died of natural causes and that at this point there is no foul play expected. Supreme Court justice Antonin Scalia has died at the age of 79.

Our Jeffrey Toobin is on the phone with me. Jeffrey, you are the scholar of the court, the author of the book "The Nine," you know this man, his history, his life, his legacy inside out. Your thoughts.

JEFFREY TOOBIN, CNN SENIOR LEGAL ANALYST (on the phone): Well, you know, Antonin Scalia is one of the handful of most influential Supreme Court justices in history. This is a man who left a huge impact on American law. Now, there has been 115, I believe, Supreme Court justice, but only a handful have enormous personal legacies. And Justice Scalia is in that category. He has been the leader of the conservative wing on the court since he was appointed by President Reagan in 1986. And his departure leaves a huge political fight in the offing because this is a court with five Republican appointees, four democratic appointees.

President Obama will have the opportunity to nominate someone. And there will be one of the great battles in United States Senate history over whether President Obama's nominee even gets a vote because of the Senate Republicans recognize how important it is to maintain a conservative majority on the court. President Obama is only president for another ten months. And the question will be whether President Obama's nominee, who I expect will come quickly, will get a vote at all in the remaining months of his presidency.

HARLOW: And, Jeffrey, let's talk through some of the cases that stand out to you most that he wrote. You know, wrote the leading opinion, decision on. What stands out actually to you most when you think of the history of the cases that he heard?

TOOBIN: Well, certainly the most famous and influential opinion that Justice Scalia wrote involved the Second Amendment, the right to bear arms. You know, for over 100 years the Supreme Court had said that the Second Amendment which refers both to a well-regulated militia and a right to bear arms only applied to militias. But in 2008 in a case called Peller Justice Scalia wrote the opinion that said, individuals have a Second Amendment right to bear handguns for their own personal protection. And that is an enormously important opinion.

He, of course, was in the majority in Bush v. Gore in 2000 which essentially made President Bush president. He has been a Stallworth opponent of abortion rights, he has voted against Roe v. Wade at every opportunity. He has voted against gay rights at every opportunity. He wrote a scathing dissenting opinion in the Obergefell (ph) case. The case that gave gay people the right to marry in all 50 states. There is almost no issue, except for the First Amendment, freedom of speech, where he has not been a down the line conservative.

HARLOW: To sum up his legacy, which is a very hard thing to do for a man with this history, what would you say, Jeffrey?

TOOBIN: Well, I would say that the conservative idea that the constitution should be interpreted as the framers understood it in the late 18th century, the idea known as originalism, he was the leading advocate, the leading scholar, the leading -- the person who brought that idea into the mainstream. And it is now a very much ascended view of the constitution. That he is the person most associated with that. He had enormous success, not total success, but in the Supreme Court is not a fully conservative institution, but he is the -- he was the leading conservative on the court since his appointment in 1986 by President Reagan and he leaves an enormous, enormous legacy in not just American law but American society.

[17:14:50] HARLOW: And, Jeffrey, I think a big question now becomes, what happens to those cases that are presently before the court that have been argued in front of Justice Scalia? What happens to those cases right now?

TOOBIN: Well, those cases will be decided. If they can be. If they are -- if they have a majority of five votes, the cases will be handed down with eight justices. If there are four to four ties, what happens in Supreme Court litigation is those cases become -- the lower court decision becomes affirmed but they are not Supreme Court precedent. It's called of affirmed by an equality divided court. You know, there are not that many five to four cases especially early in the term and this is still early in the term. But the -- the real issue is what happens now in the Senate and who does President Obama nominate and does a person get a vote in the Senate. I think this is going to be -- it's going to transform the presidential campaign and it is really going to -- may well dominate much of politics for the next -- until the election in November.

HARLOW: And now also the question becomes when you look, Jeffrey, at the history of the justices on the court right now, how does he rank in terms of those justices?

TOOBIN: In the top dozen. This is an immensely, immensely influential justice. You know, he is going to rank up there with Oliver Wendell Holmes, with Louis Brandeis, with William Brennan, with Earl Warren in terms of justices who didn't just cast vote as one of nine but who really shaped the legal thinking of their era. He is someone who, you know, who took office at a time when Justice Brennan who was the great liberal who was appointed by President Eisenhower, was still a major force on the court in the mid-1980s.

And Scalia led a counter revolution. There's no other way to describe it. And that counter revolution was largely but not completely successful. When you look at how the court has cut back on abortion rights, how it has cut back on the use of affirmative action, decisions like the -- you know, of Bush v. Gore and the end of the voting rights act or the almost the end of the voting rights act, those are all decisions that have Justice Scalia's handprint all over them. And I think it is just a huge development that he's leaving the court but he also leaves behind a vast, vast legacy.

HARLOW: Jeffrey, to you, let's talk about what Reagan in '86, right, when he was nominated and then confirmed with the court, what Reagan was hoping he would be in terms of a justice over the decades and what he actually became. Do you think he lived up to what then President Reagan thought he would accomplish?

TOOBIN: He more than lived up to President Reagan's hopes for him. Remember, back in 1986 Justice Scalia was the first Italian-American ever to deal on the United States Supreme Court. He's of course since then followed by Samuel Alito, also an Italian-American. And so he has not only been a -- an important conservative voice on the court, he's been a public figure. You know, unlike many justices on the court, Justice Scalia is a -- is someone who has been outspoken off the bench as well as on the bench. He has been a figure of some controversy. People may remember that during the George W. Bush administration he went on a now famous duck hunting trip with Vice President Cheney and then later declined to recuse himself involving a case where some records were sought from Vice President Cheney's official activities.

[17:19:44] And he wrote a very lengthy and frankly very amusing explanation of why he didn't recuse himself in that case. But that was typical of him. I mean, he was -- he was outspoken. He was very funny. He was unapologetic in his conservative views. He was a strong, strong supporter of the death penalty. Another area where he left an important legacy on the court. So, you know, people who have only heard of a handful of Supreme Court justices have usually heard of Justice Scalia because he has been such a big public figure as well as someone who was just, you know, all -- no such thing as an unimportant Supreme Court justice. There are only nine of them. But some are more important than others and Justice Scalia was at the very top rank.

HARLOW: And Jeffrey, stay with me because I have another question for you. I do want to read our viewers though a statement in full that we've just received from the governor of Texas, Governor Abbott, on the passing of Justice Scalia, again, a man who served 30 years in the high court on the bench who died during his sleep during a visit to Texas. Governor Abbott writing, "Justice Antonin Scalia was a man of God, a patriot, and unwavering defender of the written constitution and rule of law, he was the solid rock who turned away so many attempts to depart of the distortion of the constitution. His fierce loyalty to the constitution set an unmatched example not just for judges and lawyers but for all Americans. We mourn his passing. We pray that his successor on the Supreme Court will take his place as a champion for the written constitution and the rule of law. Cecelia and I extend our deepest condolences to his family and we will keep them in our thoughts and prayers."

Jeffrey Toobin, stay with me.

For our viewers just joining us, breaking news in to CNN. Justice Antonin Scalia has died during his sleep on a visit to Texas. He served the high court for the past 30 years after being appointed, nominated, and then appointed by President Ronald Reagan in 1986. Here's more on his life and his legacy from our Joe Johns.


ANTONIN SCALIA, U.S. SUPREME COURT JUSTICE: I, Antonin Scalia do solemnly swear --

JOE JOHNS, CNN CORRESPONDENT (voice-over): The first Italian-American to sit on the nation's highest court, Justice Antonin Scalia was a conservative in thought but not in personality.

UNIDENTIFIED FEMALE: Justice Scalia has an irrepressibly pugnacious personality and even in his early years of the court, that came out both in oral argument where he was the most aggressive questioner and behind the scenes where the memos that he wrote were called ninograms inside the court had a real galvanizing effect on the debate among the justices.

JOHNS: The jaunty jurist was able to light up or ignite a room with his often brash demeanor and wicked sense of humor. Grounded, say many colleagues, in a profound respect for American law and its constitutional traditions.

UNIDENTIFIED FEMALE: Feisty, he can be belligerent, he can be, he's obviously very candid about how he feels about things. Loves to call it as he sees it. Completely not PC. In fact, prides himself in not being PC on the bench, in court.

SCALIA: I'm an Italian from Queens. This is the top of the hill.

JOHNS: A sharp mind combine with a sharpen allowed Scalia to make his point both to the pleasure and the disappointment of his colleagues and the public. PAUL CLEMENT, FORMER SCALIA LAW CLERK: He's very good, especially

with audiences that are not predisposed to like him. I think he is incredibly disarming and charming in kind of -- charming in his own way.

JOHNS: Antonin Gregory Scalia was raised in the Amherst neighborhood of New York City, the only child of a Sicilian born college professor and a school teacher mother, they instilled in the precautious child, a love of words and debate.

SCALIA: I was something of a greasy grind. I have to say. I studied real hard.

JOHNS: He was a top student at public and private Catholic schools in the city. Here he is leading his high school band in the Fifth Avenue parade in 1950. Scalia's interest in law began in college and so, too, an interest in Maureen McCarthy with whom he later married and had nine children. His exuberant embrace of conservatism attracted the attention of Republicans and President Reagan ultimately named the 50-year-old federal judge to the high court in 1986. There he developed a reputation as reliable conservative. In his own style helped liven the public face of the high court.

UNIDENTIFIED MALE: Some of the other justices, including the justices who were already on the court and had been on the court for a while, were kind of, well, you know, if the new guy gets to ask all of these questions, I'm going to sort of step up and ask some questions, too.

[17:24:35] JOHNS: On abortion, the death penalty, affirmative action, homosexual right, Scalia clashed early and often with more moderate or left-leaning bench mates.

UNIDENTIFIED FEMALE: At one extreme he would alienate some of his colleagues. If he was trying to get anybody to sign on opinion it was harder when he would use more combative language. But, you know, as much as they would say, you know, I'd like to strangle Nino, he was still there's in many ways.

JOHNS: In those dissents hoped him hone a creative some said often cruel streak in his writings becoming a master stylist. He once referred to the junior varsity Congress. He quoted, "Cole Porter, Shakespeare and Sesame Street songs." In a closely divided abortion case he slammed Justice Sandra Day O'Connor's views as perverse and irrational. Off the bench came admiration from young conservatives who wrote books and created websites and tribute but controversy, too. A hunting trip with Vice President Cheney at the same time the court was considering a lawsuit against the number two over access to privileged documents. A Sicilian gesture some interpreted as obscene and captured by a Boston newspaper. He call it dismissive in nature. And this on the war on terror.

SCALIA: War is war and it has never been the case that when you capture a combatant you have to give him a jury trial in your civil courts. It's a crazy idea to me.

To thine own self be true. JOHNS: Justice Scalia a man both respected and dismissed, feared and

celebrated, combining equal amounts of personal levity and judicial heft.

UNIDENTIFIED FEMALE: Be remembered in many ways, certainly as this larger than life figure, larger than bench figure, someone who embraced both the law and a life beyond the court.

UNIDENTIFIED FEMALE: He will go down as one of the great justices in the history of the Supreme Court. I think that his -- his clarity of thought, wit, writing, you know, will be very difficult to match.

JOHNS: A judge who combined street smarts with a well calculated conservative view of the law and its limits on society.

SCALIA: I'm not driven. I enjoy what I'm doing. As soon as I know longer enjoy it, I am out of there.


HARLOW: Again, a look at the life and the legacy of Justice Antonin Scalia who has died at the age of 79 while on holiday in Texas. This news just in to CNN that Justice Scalia has died at the age of 79. A sitting justice on the U.S. Supreme Court known as our Jeffrey Toobin has said, to be among the most, the most conservative, the first American-Italian appointed to the court. We have new information coming in from our Justice Correspondent Evan Perez. Evan, what are you learning?

EVAN PEREZ, CNN JUSTICE CORRESPONDENT (on the phone): Well, Poppy, we are told now on the record from the U.S. marshal service that they are on the scene there in West Texas at the Cibolo Creek Ranch where Justice Scalia passed away. It is believed he passed away of natural causes early this morning. We have a few more details of what happened. Apparently last night he was at the ranch with a group for a hunting trip. And he was complaining of not feeling well so he went to bed. Early this morning the rest of his group got up and he did not. He did not get up for breakfast.

So the rest of the group left the ranch to go on their way for their day. And the Justice didn't get up. Later on some time thereafter someone at the ranch decided to go check on him and they found him unresponsive. He had passed away. Again, apparently of natural causes, according to the U.S. Marshal's Service. They're on scene there trying to make arrangements to have obviously the family, you know located way in West Texas in the big band area. One of the most beautiful parts of the country. It's very popular for people to go out there on hunting trips. And that's what the Justice was doing on this trip.

HARLOW: All right, Evan Perez, our justice correspondent with those details from Washington for us. Evan, as you find out more, please bring them to us.

I do want to go back to our Jeffrey Toobin, CNN senior legal analyst, also an expert on the Supreme Court, author of "The Nine." Jeff, let's talk about his relationship with the other justices on the court. Specifically I'm interested in his relationship with Justice Ruth Bader Ginsburg. I mean, his ideological opponent to the left. Jeffrey, Toobin, are you with me?

[17:29:25] TOOBIN: I'm sorry. I lost you there for a second.

HARLOW: That's fine.

TOOBIN: Justice Ginsburg --

HARLOW: Yes. I'm just very interested in as we look at these images of the two of them, Justice Ginsburg and Antonin Scalia sitting down for a conversation on stage, I'm interested in Justice Scalia's relationship with the other relationships on the court and also with Ruth Bader Ginsburg, his ideological opponent really to the left.

TOOBIN: They were friends for many years. They had a lot in common. Other than their politics which had nothing in common. They were both New Yorkers. Justice Scalia from Queens. Ruth Ginsburg is from Brooklyn. They were both on the D.C. Circuit before they were on the Supreme Court together. They spent New Year's Eve together all the time through many, many years. Justice Ginsburg's late husband, Marty Ginsburg, was a famous, in Washington, gourmet chef. And Antonin Scalia, as he would happily acknowledge, was a great gourmet eater. He very much enjoyed eating Marty Ginsburg's cooking.

And Justice Scalia is, was, sorry -- hard to speak about him in the past tense -- was a very funny person. And Justice Ginsburg is someone who appreciates funny men. And they were friends for a long time. I think they enjoyed the public bewilderment at the fact that they were friends. They disagreed on every important issue, whether it was gay rights, abortion, death penalty, affirmative action, free speech, but they were not disagreeable with each other. And it was -- it was a nice lesson for all of Washington for a long time.

HARLOW: What about the possible replacements? Jeffrey, you were speaking about that earlier, just how hard it will be to get a nominee by President Obama through the Senate. What names are we looking at, talking about?

TOOBIN: I would keep an eye on one name above all, Judge Sri Srinivasan, an Indian-American, 48 years old, appointed by President Obama to the D.C. Circuit, which is where Justice Scalia came from, and four other justices came from, widely believed to be the second most-important court in the country. And very importantly justice -- Judge Srinivasan was confirmed unanimously by the United States Senate just a couple of years ago during President Obama's -- towards the end of his first term, I believe. And he is someone -- if anyone could get through the Senate he could get through the Senate. But certainly, you are going to see many Republican Senators saying this is a seat that should be -- that should go to the next president, that the next president should fill this seat, and they will do everything in their power to stop a vote.

Now, this is a Senate in Republican hands. So Mitch McConnell, majority leader, and Charles Grassley, who is the chairman of the Judiciary Committee, if they want, they can stop any vote from taking place. There will certainly be political heat on the court -- on the Senate to take a vote. But this, I suspect, will dominate the life of the Senate for the next few months and it will certainly dominate or play a very significant role in the presidential campaign that's unfolding right now.

HARLOW: Let me read you this. When you talk about just the political battle that will ensue after this, Jeffrey, the communications director for Senator Mike Lee, a Republican of Utah, he sits, Senator Lee, on the Senate Judiciary Committee. Here's what that communications director just tweeted, "What is less than zero? The chances of Obama successfully appointing a Supreme Court justice to replace Scalia."

And then we have Senator Ted Cruz, running for president, just tweeting, "Justice Scalia was an American hero. We owe it to him and the nation for the Senate to ensure that the next president names his replacement."

Your thoughts, Jeffrey?

TOOBIN: Well, this is something you're going to hear a lot of. And the great, great significance of the Senate going Republican in the mid-term elections in 2014 is that the Senate can stop a vote from taking place over the next 10 months. That is -- and certainly, Mike Lee, Ted Cruz, who are very passionately interested in the subject of the Supreme Court, will do their best to stop the Senate from taking action.

You know, it is worth remembering, also, that it is only February. And President Obama is going to be president for another 10 months. That's practically a quarter of his term. If there's no vote on a successor, that will leave the Supreme Court shorthanded for over a year because a new president is not coming in until January. Certainly, it would take some time for a new president to nominate and confirm someone. I don't believe there's ever been a vacancy that's lasted for that long without -- without a vote in the Senate. So there will be considerable political heat on the Senate to act on an Obama nominee. Now, they may simply say, forget it, but that's not the whole story.

[17:35:04] HARLOW: Jeffrey, but take me back to 1986 -- 1968, excuse me -- when the Senate GOP ran out the clock on LBJ's nomination on Abe Fortas to be chief justice.

TOOBIN: That's right. But the court was not shorthanded during that time. Earl Warren had announced his intention to step down but he had not actually stepped down. There were always nine justices on the court. This is a very different situation, sadly, because Justice Scalia has died. But you will certainly hear Republicans say that there is nothing stopping the court from acting with eight justices. Most cases are not 5-4. Most cases are resolved with a substantial majority in the court. So it's not a -- they will say it's not an urgent situation.

But Democrats will say and I think a lot of people will say, look, you know, we have one president at time, and he's still the president, he gets to nominate people, and that person deserves a vote. Obviously, a great deal will depend on who the person is that President Obama nominates. But I tell you, it is very -- I suspect many people in the White House will find it very tempting to nominate someone like Judge Srinivasan, who already receive unanimous approval in the Senate. And their argument will be, how could he be unanimously qualified three years ago when you won't even give him a vote now. That will be the argument you will hear if Judge Srinivasan is the nominee.

HARLOW: Jeffrey Toobin, stay with me.

Because I just received a statement from the Supreme Court, from Chief Justice John Roberts, of the Supreme Court. I will read it to you now in full: "On behalf of the court and retired justices, I am saddened to report that our colleague, Justice Antonin Scalia, has passed away. He was an extraordinary individual and jurist, admired and treasured by his colleagues. His passing is a great loss to the court and the country he so loyally served. We extend our deepest condolences to his wife, Maureen, and his family."

Again, whether you agreed with him ideologically or not, this is a man who served this country and the high court for 30 years.

Jeffrey, someone, as you said, was very close friends with Ruth Bader Ginsburg, a fellow justice, someone ideologically opposed to him. When you look at his legacy and the summation of his career, what is the one word that comes to your mind?

TOOBIN: Giant. This is a giant of American law. The transformation in constitutional law, the transformation of how judges and ordinary citizens look at the Constitution -- you can almost never say there has been someone in American history who had this kind of influence.

HARLOW: Jeffrey, stay with me.

I want to bring in our CNN senior political commentator, David Gergen, who also was adviser to four former presidents.

David Gergen, to you. David Axelrod, the senior political commentator for CNN, but also former adviser to President Obama, calls this a "seismic event" for the presidential campaigns.

DAVID GERGEN, CNN SENIOR POLITICAL COMMENTATOR (voice-over): I think that is, too. I heard what Jeff said and I agree with almost everything.

This is going to thrust the future of the court right into the middle of the campaign. And I have no doubt that even as everyone expresses mourning for this man who had such enormous influence but also did serve his country as he saw by his own lights enormously well, you're going to hear tonight in this debate the beginnings of the argument about not only should the president wait and let the next president succeed -- or, you know, make the choice, but very, very importantly, Scalia was one of three justices who were going into their 80s during the term of the next president. Justice Kennedy and Justice Breyer will also enter their 80s. And, of

course, Justice Ginsburg is already there. And everybody was speculating, it could be two, three, even four seats that could open up during the first term of the next president. That's enormously important to the future of the country, certainly, to the future of the law, the direction of the law. And so the next -- it's a choice people make about -- in their election is very much involved not only the economy, not only jobs, not only American security, but who is going to choose the future direction of the highest court in the land.

[17:39:57] HARLOW: It absolutely is. And this has already become political.

Obviously, the breaking news is the very sad death of a 79 year-old Supreme Court Justice Antonin Scalia, who served on the high court for 30 years after his nomination by then-President Reagan in 1986.

Of course, with his passing, everyone will mourn. They are mourning. I just read the statement from the chief justice. But it has become political, David Gergen, as we look at live pictures of the Supreme Court as night falls on our nation's capital. Con Carol (ph), the communications adviser and advisor for Senator Mike Lee, a Republican from Utah, who sits on the Judiciary Committee, just tweeted this, "What is less than zero? The chances of Obama successfully appointing a Supreme Court justice to replace Scalia."

How bitter of a fight does this become, David Gergen?

GERGEN: I'm not sure how bitter it will become this year because I don't think the president has the votes to move it. The conservatives -- Scalia was so important to the conservatives. He was the anchor for conservatism on the court. He was on the person who was the most persuasive.

At least four people there, who have been there, the sort of stalwarts of conservatism, if you will, and they expected him to basically live on for years to come. This is going to be a real shock in the conservative community. And they are going to respond by saying, well, we're very polarized country and very divided, and rather than the president putting up someone who is going to, you know -- rather than putting up someone potentially -- you could make the argument, as Jeff has and I think he's right about this, that someone who has been confirmed unanimously to the court of appeals, you know, why would you object to him?

The reason you object to him is reasons other than what you -- why you voted for him on the court of appeals, and that is he's going to tip the balance of the court. And shouldn't that be decided by a vote of the people rather than by some action in history? And that I think is -- I think a lot of conservatives are going to argue, look, the president ought to give this time, at any event, he shouldn't put up a nomination -- you know, he really ought to run a thorough search. And then he can take his time to assess all of this. And, yes, we're going miss him and the court will live on, but for the future direction of the country, of the court, then it's important to let the people speak. I don't know which way the argument will cut with the American people.

There are arguments, meritorious arguments on both sides but the Senate is going to be very divided. And as Jeffrey says, the Senate happens to be controlled by Republicans as a result of the recent elections.

HARLOW: David, if you were advising your fifth president. You've been adviser to four former presidents. If you were sitting in the Oval Office this week, advising your fifth president, President Obama, would you advise him to nominate or to wait?

GERGEN: I think the president ought to -- I think everyone here needs to act with some deliberation and not rush to the barricades because the American people deserve better than that. This is a time of mourning. Let people show a little more judgment. Wait a little bit and make a decision about what to do. I don't think a president ought to make a decision. Let this settle down a little bit and certainly wait a few days.

I think I would probably come down on the side of, if we have a really strong candidate, who was unanimously confirmed, we should put that candidate forward, and then let the Republicans show their stripes and block things, and that will re-enforce your argument that their obstructionist and they don't care for tradition. If they really cared about the court, they wouldn't let it go a full year or so with only eight members. I think that's a political step. I don't think the president would have a realistic chance of getting it done. But if you're sitting in the White House, you're thinking about the politics of it as well as everything else, and you realize you probably don't have the votes, but politics says maybe you ought to help your nominee. And for that reason, I think the president will probably lean towards putting forward a candidate. I would love to hear Jeffrey's general view about the politics of this.

HARLOW: Absolutely. Let's bring Jeffrey Toobin back in, CNN's senior legal analyst, author of "The Nine Experts on the Supreme Court."

David Gergen, stay with me as well.

Jeffrey, for our viewers watching, when you look at a 4-4 decision, OK, does the prior rule -- the ruling of the prior court stand in a 4- 4 decision?

TOOBIN: It does. But it does not become Supreme Court precedent. It only applies to the circuit where the decision has been reached.

Just to reflect some of what David was saying, one reason why Republicans will be so reluctant to give a vote to any nominee that President Obama makes is that this court now has five Republican appointees and four Democrats. And it is usually -- and in high- profile cases, it often splits along that 5-4 action. If President Obama successfully nominates someone to the Supreme Court, it will become a 5-4 Democratic majority. That could have huge, huge implications for the future of the court, especially since Justice Sotomayor and Justice Kagan are relatively young, by Supreme Court standards. You can have three young Democrats along with Justice Scalia --

Justice Ginsburg and Justice Breyer, with a progressive majority in the court. And I find it very hard to believe that Republicans will allow that to take place. Certainly, many Republicans will be opposed to it. Some Republicans, especially if they voted for the same nominee before, may allow it, but this -- my point is, this is not just any vacancy on the court. This is a vacancy that would tip the balance from a conservative majority to a liberal majority. That makes it that much more significant.

[17:46:27] HARLOW: It absolutely does. What will also be significant, Jeffrey Toobin and David Gergen, is what we hear from the White House, the fact that the White House never agreed with Scalia or his rulings, being such a conservative justice.

What they say in this statement will be critical, Jeffrey Toobin.

TOOBIN: I think the White House will simply say -- express sympathy and respect for Justice Scalia. It's certainly only tawdry journalists, like me, are talking about successors at this point. It would certainly ill behoove the -- the White House to be talking about successors. I can't imagine any statement would be anything other than a statement of sympathy and respect for Justice Scalia at this point. There will be a respectful silence from the White House for a while, but, believe me, they are already thinking about their strategy.

HARLOW: David Gergen, to you. Your thoughts on that?

GERGEN: I'm sorry?

HARLOW: David Gergen, to you. Your thoughts on what we may hear from the White House when we do get a statement from them?

GERGEN: I agree with Jeffrey again that it will be -- they will be very respectful. Just as Justice Ginsburg has had a friendly relationship and respectful relationship, I think the White House will not be friendly but it will be very respectful and recognize his importance to the court and also recognize this was a man with a long marriage with nine children who loved life. And I would think that they -- with a sense of humor that often served him well.

You know, it's often like gladiators, at some point, you respect what the other person does, even though you may totally disagree with them. And I think that's the position the White House will take. I think their public position will be that the president has made no decision about how he proceeds. And I think their leaked position, their private position to the reporters, anonymous position will be, well, of course, we ought to fill the seat, of course, we're going to have to do this. And I think that's where we will stand for a while until the search becomes a -- I would think they would launch a search of some sort fairly quickly, certainly, within three or four weeks.

HARLOW: And, Jeffrey Toobin to you. Let's just talk in some context historically about this. There has not been a vacancy on the Supreme Court with the Senate and the White House in opposition and being controlled by different parties since Clarence Thomas 25 years ago.

TOOBIN: That is -- makes this challenge for the Obama administration much, much harder. Also, the difference is the -- it is not just the fact that the president is of the opposite party. We're in the last year of an administration. That was not the case with Clarence Thomas. He was nominated in 1991 with two years to go in the Bush administration. So the option of simply running out the clock did not exist for the Democrats when then-Senator Joseph Biden was the chairman of the Judiciary Committee. It is certainly possible to run out the clock for 10 months in a way that it's more difficult to run it out for two years.

However, it is also true that the Senate is a lot more politically polarized in 2016 than it was in 1991. The moderate Republicans are all gone, except perhaps in Susan Collins, of Maine. So that core -- the Arlen Specters of the world, from Pennsylvania, they're all gone. This is a much more conservative Republican majority in the Senate, who will be that much more reluctant to confirm any nominee to the Supreme Court, much less one that will shift the balance from 5-4 conservative to 5-4 liberal.

HARLOW: David?

[17:50:36] GERGEN: Probably, when you come down to it, what we have now shaping up in this election year is an election that will determine control of the White House, control of the Senate and control of the Supreme Court. All three branches of government are in play here in this election. And that makes the election intensely important.

And the Supreme Court is going to become the future. The court is a part of a much, much larger battle. I think it will be very elevated into the conversation about where we're going from here and who should serve as president in the coming years.

HARLOW: That is a very important point.

David Gergen, stay with me.

Because I just got a statement in from former President George W. Bush. I will read it to you in full: "Laura and I mourn the death of brilliant jurist and important American Supreme Court justice Antonin Scalia. He was a towering figure, an important judge in the nation's highest court. He brought intellect, good judgment and wit to the bench. He'll be missed by his colleagues and the country. Laura and I send our heartfelt sympathies and condolences to his wife, Maureen, their nine children, and the entire Scalia family."

And David Gergen and Jeffrey Toobin, I know that, obviously, is very political in terms of who will replace him. But let's take a moment to step back and talk about the man, whether you agreed with him ideologically or not, whether you were a fierce opponent of the majority decisions that he wrote or the dissenting opinions that he wrote. This is a man that is a father, a man who had 28 grandchildren, and a man who spent 38 years of his life, Jeffrey Toobin, serving our country. TOOBIN: And he led one of the great American lives. Here's a kid who

grow up in Queens. And I remember he told me once that he did riflery in high school and he used to take his rifle on the subway, which is quite a sight to imagine. You do see many rifles on the New York City subway anymore. And it was late in life when he was appointed the circuit justice, the justice in charge of the courts in the south. And he became -- he started to be invited to hunting expeditions and he became a devoted hunter really late in life.

And I saw he was on hunting trip when he died. And I know from personal experience that means he died doing something he loved because he loved hunting. He even introduced Justice Elena Kagan, who was also a New Yorker, someone who did not hunt as a kid, but someone that he brought -- he shared his love of hunting with.

This is someone who was a tennis player. He was a hunter. He was a raconteur. He led a life full of enjoyment and fun and intellectual combat. He never -- he never shied away. I saw him many times speak in public forums and, unlike some Supreme Court justices, he took questions from anyone, hostile questions. He was not afraid of defending his views in an unstructured setting. He loved life. And he had a big, big life and a big influence. And there are very few people who claim -- who deserve -- who receive the kind of influence that he did through his long life.

HARLOW: Jeffrey, talk to me about the process now, the way that he is honored, the pomp and circumstance that will follow for a Supreme Court justice. What happens when they pass away? What kind of funeral will be held for him? Will his body lie in state?

TOOBIN: His body will -- this will, in part, be up to his family. But almost certainly he will lie in state in the great hall of the Supreme Court. And I have a very vivid memory of standing, watching the casket of William Rehnquist, who was Justice Scalia's great friend and ally on the court. And I remember watching Justice Scalia walking by the casket, tears just flowing down his cheeks. I mean he was someone who was not afraid of expressing emotion. He was someone who was operatic in his life, as well his passion for music. And I remember just being impressed by how open he was in his grief. And I suspect when Justice Scalia lies in state in the same place, many people will shed the same kind of tears.

[17:55:27] HARLOW: Stay with me, Jeffrey Toobin, David Gergen.

I want to go straight to our Dana Bash, chief political correspondent, joins me on the phone.

Dana, your sources are talking to you about perhaps the next appointment?

DANA BASH, CNN CHIEF POLITICAL CORRESPONDENT (voice-over): That's right, Poppy. You've heard Jeff talking about the fact that we are -- never mind there is an opposition party running Capitol Hill, especially the Senate, which has the duty of confirming and approving any Supreme Court justice, but we are just 11 months short of a new president taking the oath of office. So I've within talking to a senior Republican source in the Senate who said that it is unlikely at this point for the president to get a nominee through this Senate while President Obama is still in office, both for logistical challenges, because it takes a long time for the paperwork and everything else, but much more importantly, because of political challenges.

You are already seeing Republicans, both on Capitol Hill and off Capitol Hill, conservatives saying there is no way they want -- in the twilight of President Obama's administration, they want him to be able to pick the next nominee to the Supreme Court, especially somebody who is going to fill the slot left by Antonin Scalia, one of the most admired justices by conservatives. So you're already seeing that kind of pressure.

I want to emphasize that there is no decision made. Obviously, this is a surprise. This is not like -- as Jeffrey was just talking about, usually, you have -- at least in recent history, you are retirements, or at least some expectation that there is a nomination process coming. And this is not one of those situations. So it is absolutely not decided that the Republicans, who run the Senate, will not go forward with an Obama nominee, but it is looking extremely unlikely, again, for political reasons and logistical reasons. But let's be honest, it's mostly political reasons.

HARLOW: Dana Bash, thank you for your reporting. Stay with us. Dana will get more.

I do want to read a statement and some reaction that we're getting from Washington, from the White House. Principle deputy press secretary, Eric Shultz, from the White House, writing, "This afternoon, the president was informed of the passing of Supreme Court Justice Antonin Scalia. The president and the first lady extend their deepest condolences to Justice Scalia's family. We'll have additional reaction from the president later today in the White House."

With that statement, additional reaction from President Obama and the White House will come later today.

David Gergen, to you. Your thoughts?

GERGEN: Well, I think the White House is handling it just as it should. That's very protocol oriented. This is to make the early statement now saying that the president sends his deepest condolences. But they're promising a statement later on. They've got to get folks in place to do that. This has caught everybody by surprise.

But it's -- I can't emphasize enough, I think that -- going back to Jeffrey's point, this is a man that was so full of life. It was totally unexpected that he would die like this. I guess he was quail hunting yesterday, going out in west Texas. That's where a lot of folks like, the Jim Bakers and the Dick Cheneys and others who like to go out there, and George W. -- I don't know how much hunting he does these days. But to have a man so full of life, to have his life extinguished so quickly, and to have him at such a pivotal moment, both at the court and in politics, our national politics, I think all of us are thinking, whoa, that was -- this is -- David Axelrod got it right, it is a "seismic event."

HARLOW: No question about it.

It's interesting, Justice Scalia, in one of the very few interviews he ever did, spoke to "New York" magazine, and they asked him, what will be the tell-tale sign that he will retire, David Gergen, and he said, "One will be that I don't enjoy it as much as I do. I think that's the beginning of the end." And we know he enjoyed it all the way through.

GERGEN: I think he -- he lived life to the hilt. We live near each other in northern Virginia and our kids played in the same swimming pool in a small place there. And he was always so convivial. And, you know, people understood he very conservative, but people of all stripes enjoyed his company. He was great company.