Return to Transcripts main page

CNN Newsroom

Supreme Court Hears Oral Arguments On Future Of Obamacare; Rep. Mikie Sherrill (D-NJ) Is Interviewed About How Dems Will Control The House With Smaller Majority. Aired 12:30-1p ET

Aired November 10, 2020 - 12:30   ET

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

(COMMERCIAL BREAK)

[12:30:15]

JOHN KING, CNN HOST: The Supreme Court today, hearing oral arguments on the future of Obamacare, insurance coverage for millions of Americans could hinge on this decision.

With me now to discuss Steve Vladek, a professor of law at the University of Texas Law School, Steve, it is good to see you. So one of the issues that came up, I want to get right to it. The Chief Justice talked in some of the oral arguments about well, if we strike down this provision, can't we leave the rest of the law intact because many people think this is about, essentially this is about the heart. You know, this is about the pumping heart of the Affordable Care Act if you strike it down. It's done the entire Act. And weighing -- jumping into weigh in on that as someone whose hope will be critical Trump appointee Brett Kavanaugh, let's listen.

(BEGIN VIDEO CLIP)

JUSTICE BRETT KAVANAUGH, ASSOCIATE JUSTICE OF THE SUPREME COURT: I'm sorry to interrupt Mr. Verrilli, but let's assume, just for the sake of argument, assume I don't agree with that, and then we get to severability. I tend to agree with you on this, it's a very straightforward case for severability under our precedents, meaning that we would excise the mandate and leave the rest of the act in place reading our severability precedents. One of my questions is do you think that's would have been the right result under the 2010 act or did that change in 2017? Or, how would you assess that?

(END VIDEO CLIP)

KING: Explain the significance of that to our viewers because the reference to 2017 is when the Congress came back after the previous Supreme Court ruling?

STEVE VLADECK, PROFESSOR OF LAW, UNIVERSITY OF TEXAS SCHOOL OF LAW: That's right, John. And I think in 2017, Congress zeroed out the penalty for the individual mandate. So someone who does not actually follow the individual mandate today faces no consequence. That's why most of the focus on this case has not been on the fate of the individual mandate, but rather whether as the district court held, the whole statute has to follow that is to say, the Medicaid expansion, coverage for preexisting conditions, HIV and AIDS programs.

And when Justice Kavanaugh this morning expressed that sentiment that he agrees that the individual mandate can be severed. He's basically telling everybody, you know, I'm going to vote to sever the mandate. John, that's a pretty good sign there at least five votes, including Kavanaugh, the Chief Justice, the three progressives, to leave the rest of the ACA intact, couldn't have gotten a clearer statement from the court during this morning's argument.

KING: Well, and let's listen to the chief on that point, because he saved Obamacare before, listen to this time.

(BEGIN VIDEO CLIP)

JOHN ROBERTS, CHIEF JUSTICE OF THE UNITED STATES: General Hawkins, on the severance question, I think it's hard for you to argue that Congress intended the entire act of fall if the mandate was struck down when the same Congress that lowered the penalty to zero did not even try to repeal the rest of the act. I think, frankly, that they wanted the Court to do that, but that's not our job.

(END VIDEO CLIP)

KING: Pretty clear what he's trying to say to your point from the previous and he's trying to recruit another vote or two, because he needs one or two more of the conservatives. When you hear Kavanaugh, essentially agreeing with Roberts or tacking along with him in the arguments, does that necessarily mean you have his vote or the Justice is sometime give us a feint, if you will, and how they question during arguments?

VLADECK: You know, John, we've seen feints before. And it's the old adage that you can't necessarily be sure from the argument. But I will say when a justice like Justice Kavanaugh says, I agree. I mean not just in the in the clip you play, John, but later in the argument and a colloquy with Texas, his lawyer, he came back to the same point, he said even more strongly, I think we can walk away pretty confident that there are at worst five votes to sever the individual mandate. That doesn't even necessarily mean the Court is going to strike down the individual mandate, but that the worst case scenario coming out of today's argument is that part of the ACA gets thrown out, but the rest of it remains intact. That's going to be a big sigh of relief for millions of Americans.

KING: I have to wait a few months to get that decision and I suspect, but Steve Vladek grateful for your insights on the hustle here as the Supreme Court here's argument today. We will circle back when we know more. Steve, thank you.

[12:34:05]

Coming up for us, President-elect Biden, yes, he's waiting for a concession from President Trump. But he's got other worries too. Already, we have a family feud in the Democratic Party.

(COMMERCIAL BREAK) KING: An interesting family gathering today for House Democrats, the Democratic Congressional Campaign Committee will brief fellow members this afternoon on last week's losses. As of now, more than a half dozen house incumbent Democrats lost their bids for reelections. Democrats will still maintain their majority in the House. But there's been some intra party fighting between moderates and progressives about who is to blame for that smaller majority.

New Jersey Congresswoman Mikie Sherrill won her reelection race and joins me now. It's good to see you, Congresswoman. So in this meeting today, if you have to make a point about what happened and what needs to be done, what would you say?

REP. MIKIE SHERRILL (D-NJ): You know, I think I would draw in my experience as a naval aviator. We used to do aircraft mishap boards after a mishap. And the point wasn't to assign blame. The point was to dig deep and figure out what went wrong and how we can fix it. We need to all move forward together in the caucus, we have a lot to get done. And if we use the next couple of years to fight each other, we're just not going to be able to get on a path that really helps the American people.

KING: Well, if the President-elect is watching, he might want to make your secretary of state because that was very diplomatic. But, you know, you understand what's happening. And look, I've been here a long time. You know, fights within families happen. They happen. We're in the Thanksgiving. We're in the Thanksgiving season and the Christmas season. We're all used to this. But as you know, there has been some finger pointing and there have been more centrist and moderate members like yourself who say, you know what, they threw the socialism label at us, they threw, you know, Medicare for all at us, they threw, you know, government takes care of this, that, and the other thing at us. I want you to listen here to a couple of the progressives, one in Congress and one about to join Congress saying no, no, this is not our fault.

(BEGIN VIDEO CLIP)

[12:40:18]

REP. ILHAN OMAR (D-MN): All of those members who are part of the Progressive Caucus, who are also in those swing districts, won their races or are on track to win their races.

JAMAAL BOWMAN (D-NY), CONGRESSMAN-ELECT: I disagree with the notion that it's the fault of progressives, especially when you look at how much progressives organize across the country to help Joe Biden win.

(END VIDEO CLIP)

KING: You know, I spent a lot of time at maps and I know your district is different than their districts. But how did Democrats come together and say, look, we all have to give, here's our plan, or can you do that, given the diversity and the size of the caucus, and the fact that some people come from very different places, some people come to places much more liberal than you do? SHERRILL: Well, I think we can do that because there are so many things that we're fighting for. We want to make sure that we're handling this health care crisis, the pandemic in the nation. We need to get past it so we can then handle the economic crisis. We're delving deep into how communities of color have fared so poorly. And why that is and how we can make sure everyone has access to health care and prescription drugs. These are things that everyone in my caucus wants to fight for, we can do that together.

And I think, though, that there has to be an understanding. If we want to get that accomplished, if we want to get legislation passed that's going to improve the lives of the American people, we've got to hold the tough districts. We have to hear from people in the tough districts about what just went on, how hard it was, and why that was difficult, because let's face it, we have a President who has just basically run for four years on dividing the country on fear mongering and really scared people, I think, in many areas into voting for him.

So what was it that scared people about the Democratic Party? How can we do better? Because we're working so hard for the people of this country, I think we've got to be laser focused on how we continue to do that. But we also want to make sure that we're fighting for the right things, that we're fighting for what people care about, because we're not connecting in some ways in these tough districts.

KING: Congresswoman Mikie Sherrill, I'll circle back as go through this, shall we say interesting family discussion. We'll call it a family discussion for now. We'll see if it escalates from there. Appreciate your time today very much. Thank you, and congratulations on your reelection.

SHERRILL: Thanks so much.

KING: You're welcome.

Coming up, yes, the pre-election polls once again, miss the mark.

(COMMERCIAL BREAK)

[12:47:25]

KING: The map well it speaks for itself when we capture Election Day. Joe Biden on track to win 25 states, perhaps 306 Electoral College votes and a giant win in the popular vote, 76 million votes plus for Joe Biden, 71 million votes plus though for Donald Trump, President Trump. But Joe Biden 4.6 million votes ahead in the popular vote that of course, it's not how we pick presidents. And so Joe Biden is the President-elect, he will take over the White House in 10 weeks. But once again, once again, a lot of people thought there was going to big, big blue wave, right, didn't happen.

A lot of people thought House Democrats would pick up 10, maybe 15 seats, didn't happen. A lot of people thought it was a lock that the Democrats would take back the Senate, didn't happen, at least not yet. Two run offs in Georgia in January. So let's discuss why once again, some of the polling was just plain wrong. Joining us now Margie Omero, she's a Democratic pollster at GBAO and Republican pollster Neil Newhouse. He's the cofounder of Public Opinion Strategies. Let's start first with just the national polls, not how we pick a president. But we came into the last day of the election. And, Neil, I want to go to you first on this, for our national poll of polls, and this is the safe way to do it, right? There's five or six polls out there, you don't invest in one. So you average them and you have a 10-point Joe Biden lead.

Well, here's what America said. Here's what actually happened, 51 percent if you round up to 48 percent if you round up, so a 3 point Biden victory. Neil, I know your firm did a detailed survey on election night and you believe this is because of what you call the President is not shy but that there are shy Trump voters out there.

NEIL NEWHOUSE, REPUBLICAN POLLSTER: I think it's because of two factors. I think those shy Trump voters, our election night survey showed that 19 percent of Trump voters said they kept their support for Trump secret from their friends. These were married women, suburban, higher educated voters, the kind of people who might find it socially embarrassing to admit their friends they are supporting Trump.

But truthfully, the second and more important factor is I think the group we could call poll deniers. These are voters who have listened to President Trump railed against polls for five years. And they believe that pollsters have an agenda that doesn't include them. They believe pollsters are up to new no good. And they produce fake polls. And so they refuse to cooperate. And I think that's one reason why they're underrepresented in these national polls in the state polls. They get some just simply left out because of personal choice.

KING: I know anyone watching, I've known Neil and Margie a long time. They're not up to no good. They're actually very nice people even though they have different views. And so Margie, I want to bring this one so, you know, Democrats are going to win back the blue wall, Pennsylvania, Michigan, Wisconsin, and they are happy about that because that's why Joe Biden is president and it takes away the big bragging rights President Trump had coming out of 2016. But in the poll of polls heading into those states, Wisconsin the average was that Biden was up 10, he won the state point six, I'll show you the margin in a minute.

[12:50:09]

Pennsylvania, plus six, won the state by point seven less than a point. Michigan was plus nine in the polls. He won it by three. And just again to zoom in here on Pennsylvania, 49.7 to 49.0. What happened and is this unique to Trump, I guess, is my question? Neil mentions, the shy Trump voters, people afraid to acknowledge publicly or to a spouse or partner or a friend, they're voting for Trump. Is this unique to him? Or is there a problem in the industry?

MARGIE OMERO, DEMOCRATIC POLLSTER: So there's, there's a lot to unpack here. The first is we don't know the answers yet. It's going to take a while to examine to look at the people who actually voted, getting the voter file, you know, coded, so you know who is an actual voter and really compare that to folk's assumptions. But I think it's a couple of things to point out, first is some -- we don't know exactly how off the national polls rate is in the states polls were on some compared to the results, because we're still counting ballots and a lot of places.

But it's quite possible that polls were a little bit more often some Senate races than in -- then for the presidential contest, so that suggests that it's not just about people lying about Trump, per se, it is something perhaps and this is just a theory, it requires a little bit more investigation about who is in your university gamut, the data that you collect. I think it's less about whether or not people are telling a pollster or something different.

Now, I appreciate Neil's new finding. I think, you know, we need all hands on deck to think this through and ask a variety of different questions. But those are people in a survey who said they are Trump voters. So are they really the kind of shy Trump voters who would have led to a poll saying something different than what the outcome suggest.

KING: And so I'm going to continue, I'm trying to figure this out myself because, you know, I do this all the time pre-elections, and I rely on pollsters. And I know how you guys do it is different often than how some of the public pollsters do it in terms of who you're up or who you're actually talking to out there.

But Neil let's look at the key battleground states, in Florida, the polling average coming in had Biden plus three, the President won it by three in the end. In Texas, the polling average of the President, plus two, he won it plus six. In Iowa, the polling average had the President, plus two, he won it by eight. And Ohio was even the President won it by eight. How much of this is a polling era? And how much of it is the President campaigned aggressively in the end doing all these rallies and what do you think they're wise or not because of the coronavirus, they worked, they turned people out?

NEWHOUSE: Well, you know, truthfully, it's a combination. And even our polling show that the President really came on late. He won late deciders, there weren't that many late deciders, but he won them by about 20 points. And I think it was -- there was an energy around the Trump campaign late that the Biden campaign simply didn't have. And then a lot of that was because of the rallies. But I think you combine that with the fact that there were these poll deniers who simply, you know, refuse to respond to polls. And I think that accounts for a decent amount of the difference between what actually happened in those statewide polls.

KING: And so Margie what happens now among Democrats in the sense that a lot of Democrats based on public polling thought there was a big blue wave coming. Cheri Bustos is resigning her seat as the chairman of the House Campaign Committee, because she thought they were going to pick up a dozen seats, and they didn't. How mad, I guess let me ask it this way, how mad are Democrats at their pollsters?

OMERO: So I think, you know, I think first, you know, people are looking to really figure out what we do next, right? I think this is an important point to come together to celebrate a Biden victory, think about what's next for a Democratic majority in the House, focus on the racist in Georgia, and think about how we heal and bring the country together, rather than, you know, point the fingers of folks.

And I think another important thing to remember too, is it's not Democratic polling, or Republican polling or public polling, presidential polling, Senate polling. I mean, there's a lot of different polls out there that were often this in similar ways. There were some states where the polling errors was a lot smaller, some states were a little bit larger. But the, you know, the questions that I think and the introspection that needs to happen in the industry, like after '16, where a lot of these things were remedied in '18, really is something that is should be done across the industry, not just one party or the other.

KING: We will learn as we always do, we learned from the last one as we go forward, but just to anyone out there watching who's skeptical pollsters, Margie and Neil are here because at least in my view among the best in the business. Appreciate it to both of you.

[12:54:24]

And coming up for us, the Senate Majority Leader praising the Defense Secretary Mark Esper just one day after President fired him.

(COMMERCIAL BREAK)

KING: Some interesting politics in the United States Senate today earlier in the program, Senator Mitch McConnell, the Republican majority leader standing by the President saying he should take his time here if he wants to contest the election results but just moments ago, that same Senate Majority Leader speaking out in praise of the ousted Defense Secretary Mark Esper. Majority Leader not weighing in on why Esper might have been fired. But listen to this on the floor. The President fired him in a tweet days after the election, the Senate Majority Leader says Esper, good guy.

(BEGIN VIDEO CLIP)

SEN. MITCH MCCONNELL (R-KY): When the Senate considered Secretary Esper's nomination, I said you could hardly invent better qualifications to run the Pentagon than his resume. This leader has stepped up when his country needed him. The Secretary brought integrity, expertise, and steady leadership to the Pentagon's top job.

(END VIDEO CLIP)

KING: Thanks for spending some time with us today. Hope to see you back here tomorrow as we go through this shall we say interesting week to say an understatement.

[13:00:02]

Don't go anywhere. Busy News Day, Brianna Keilar picks up our coverage right now. Have a good day.