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Breyer to Announce Retirement; Political Battle over Supreme Court Vacancy; Ned Price is Interviewed about Russia's Response. Aired 9-9:30a ET

Aired January 27, 2022 - 09:00   ET

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

[09:00:00]

BIANNA GOLODRYGA, CNN ANCHOR: Good morning, everyone. I'm Bianna Golodryga.

JIM SCIUTTO, CNN ANCHOR: And I'm Jim Sciutto. Good morning to you.

Today, a supreme announcement. Supreme Court Justice Stephen Breyer is expected to formally declare his intent to retire from the high court. That moment taking place at the White House with President Biden. Democrats are hoping for a quick confirmation process for the president's pick to replace the 83-year-old justice. But, it is a process, imagine this, in Washington, that will likely not be without political drama. We're going to have more on that in just a moment.

GOLODRYGA: Meantime, the president standing by his campaign pledge to nominate the first black woman to the court. The question remains, however, who will that person be? And will the process be completed before the midterm elections.

SCIUTTO: We are also following some breaking news on the economy. Thankfully some good news. In the last year, the U.S. economy grew at the fastest rate since 1984. This according to a new report out this morning. We're going to have much more on that coming up.

But first --

GOLODRYGA: CNN justice correspondent Jessica Schneider and White House correspondent Jeremy Diamond are standing by with more on the news about Justice Breyer stepping down.

Jessica, first to you. How do we expect this to play out timing wise?

JESSICA SCHNEIDER, CNN JUSTICE CORRESPONDENT: Well, Bianna, you know at this point we're still waiting to hear from Justice Breyer directly or potentially a statement from the Supreme Court. We're expecting maybe that will come later this morning, early afternoon. But a source familiar has told our Kaitlan Collins that Justice Breyer and President Biden will appear together at the White House today to officially announce that retirement.

Admittedly, this is all rolled out a bit unconventionally. For comparison's sake, the last time we saw a retirement was in 2018. That's when Justice Anthony Kennedy actually first went to the White House, he informed President Trump, and then an official announcement came out from the court that afternoon. That was at the end of the term in June 2018.

This time, however, we know that Justice Breyer did convey to the White House last week that he planned to step down from the court. But we know that he didn't tell President Biden directly. And as of yesterday, we know that the White House had not actually formally received a letter from Breyer making his retirement intention official.

But, you know, even when it is officially announced, probably later today, Justice Breyer, we know, will not leave the court before the end of the term. That is still five months away. And there are a lot of consequential decisions to come.

We've got cases on abortion rights, gun rights, religious freedoms still to be decided. So Justice Breyer really has a lot more work to do on the court.

Jim and Bianna, of course, the White House, at this point, the president gearing up to decide on his successor launch into what could be a quick confirmation process here. Democrats already saying they plan to follow what they call the Amy Coney Barrett timeline. She was confirmed one month after her nomination. So it could move very quickly at this point.

Guys.

SCIUTTO: Yes, look out for comments about not rushing things. We'll see.

President Biden, Jeremy, he has a history with Breyer. He was chairman of the Senate Judiciary Committee back in the early '90s when he was confirmed. A deep, personal relationship. Do we expect to hear from both of them today?

JEREMY DIAMOND, CNN WHITE HOUSE CORRESPONDENT: Well, listen, President Biden and the White House have known since last week that Justice Breyer planned to retire. And yet yesterday, after this news broke, President Biden was asked about this and he stayed tight lipped once again on this topic, as did the White House press secretary, and that's because there hasn't yet been that formal announcement.

Today, though, that is expected to change. And I think you can expect President Biden to reiterate once again his plans for nominating Breyer's successor, which is to say that he does indeed plan to nominate a black woman to be first black woman on the Supreme Court of the United States. That's something that the White House press secretary said yesterday, the president is -- it is a pledge that the president still stands by. And so we're already a short list of candidates has emerged, including Judge Ketanji Brown Jackson, a California supreme court justice, Leondra Kruger, to name just a couple of them.

Look, over the last few months there's been mounting pressure form liberal activists on Justice Breyer to retire, but President Biden has been silent on that. They didn't want to give the appearance even of pressuring Justice Breyer to retire from the court. But that hasn't stopped the process of picking Breyer's successor from beginning here at the White House. Some of the vetting has already been underway. The short list of candidates has already begun to emerge. And so, ultimately, President Biden, what he now has to do, is to meet with several of these top candidates. Ketanji Brown Jackson, the president has already met with her last February, actually, when he nominated her to that D.C. Circuit Court of Appeals.

[09:05:05]

But the other candidates, those meetings will be crucial, of course, a crucial step in this nomination and confirmation process.

GOLODRYGA: Yes, Justice Breyer will have served 28 years on the court by the time he formally steps down. We should note, he was approved by 87 votes. Quite a different change in the landscape in Washington today.

Jessica Schneider and Jeremy Diamond, thank you.

Well, while President Biden has dealt with interparty politics with its legislative agenda, holdout Senators Joe Manchin and Kyrsten Sinema have always voted with party for Biden's lower court nominees.

SCIUTTO: Yes, and not inconsequential fact, but, like all votes, of course, in the Senate, it's a slight (ph) margin. But Biden's first challenge to a nominee will likely come from the Senate Judiciary Committee.

CNN Capitol Hill reporter Melanie Zanona with us now.

Melanie, the Republicans have a potential path to slow this down in the committee, but also Democrats have a way around that, do they not, if that were to happen?

MELANIE ZANONA, CNN CAPITOL HILL REPORTER: Exactly. Republicans don't have the power to actually block this nominee from being ultimately approved. But they can slow it down. And that's because Republicans are needed to provide a quorum on the Senate Judiciary Committee, where this nomination will first be considered. Essentially what that means is the majority of the committee members need to be present in order to hold a vote. And because of the 50/50 split Senate, it is evenly divided among Republicans and Democrats. So, technically, if all 11 Republicans choose to boycott the committee hearing, they could essentially deny the quorum.

But, if that were to happen, Democrats could just change the rules. They do have the power here. And there also would be enormous backlash for Republicans for going scorched earth against what is expected to be first black woman nominated to the high court. So, it's just not clear that there's a huge appetite among Republicans to go all-out in opposing this nomination. They know they can't block it, ultimately. It wouldn't change the makeup of the court anyway. And, in fact, I think you could see some Republicans peel off and support whoever Biden ultimately nominates.

The senators we're looking at are Susan Collins, Lisa Murkowski, even Lindsey Graham. And, Susan Collins voted for two of President Barack Obama's justices on the Supreme Court. However, she did say she has some concerns about the timeline that Democrats are pursuing for this confirmation process.

Take a listen.

(BEGIN VIDEO CLIP)

SEN. SUSAN COLLINS (R-ME): As you know, I felt that the timetable for the last nominee was too compressed. This time there is no need for any rush. We can take our time, have hearings, go through the process, which is a very important one. It is a lifetime appointment after all.

(END VIDEO CLIP)

ZANONA: So, obviously, there is an opportunity to pick up some Republican support, but it is not necessary. Democrats feel good about their chances. Ultimately, though, Jim and Bianna, it's going to come down to whoever that nominee is.

SCIUTTO: Melanie, correct me if I'm wrong, Democrats tried the quorum strategy with Amy Coney Barrett, but Republicans got around it.

ZANONA: Right. Exactly. When you have the control of the Senate, you can get around these things.

SCIUTTO: Yes. Understood.

OK, Melanie Zanona, on The Hill, thanks so much.

So, let's take a closer look at these nominees, eight black women on the short list of potential nominees.

GOLODRYGA: Yes, let's begin with Ketanji Brown Jackson and her confirmation hearing, the front-runner. That's the D.C. Circuit Court Judge Jackson.

Last year Biden appointed Jackson to the second most powerful federal court in the nation, the D.C. Court of Appeals.

(BEGIN VIDEO CLIP)

JUDGE KETANJI BROWN JACKSON, D.C. COURT OF APPEALS: When you become a judge, you take an oath to look only at the law in deciding your cases, that you set aside your personal views about the circumstances, the defendants, or anything else. (END VIDEO CLIP)

SCIUTTO: Brown got a couple Republican votes in her confirmation there. Jackson recently signed an opinion ordering Trump White House documents be given to the January 6th committee and she has ruled on high profile cases, including the Don McGahn congressional subpoena lawsuit. Jackson also worked directly with Justice Breyer. She clerked for him early in her career.

GOLODRYGA: Also, a closer second look at supreme -- California Supreme Court Justice Leondra Kruger. Kruger clerked for the late Justice John Paul Stevens and served as acting deputy solicitor general in the Obama administration.

(BEGIN VIDEO CLIP)

LEONDRA KRUGER, CALIFORNIA SUPREME COURT JUSTICE: I think we tend to forget, when we're in the outside world, that really conversations about these very difficult cases are confined to a very small number of people.

(END VIDEO CLIP)

GOLODRYGA: But a key endorsement could shift the focus to District Court Judge J. Michelle Childs of South Carolina. Congressman Jim Clyburn, who was critical in helping deliver the battleground state to Biden in 2020, has endorsed Childs. Just last month, Biden nominated Childs to the U.S. Court of Appeals for the District of Columbia Circuit. The nomination does remain pending.

[09:10:01]

(BEGIN VIDEO CLIP)

JUDGE J. MICHELLE CHILDS, U.S. DISTRICT COURT OF DISTRICT OF SOUTH CAROLINA: I have a high regard and sincere appreciation for our legal system, which is the form of order in our court, in our democracy.

(END VIDEO CLIP)

SCIUTTO: Other names floated include Anita Earls, she's associate justice of the Supreme Court of North Carolina. Judge Mimi Wright, who sits on Minnesota's Federal District Court. Judge Eunice Lee is a former New York public defender who Biden nominated to the Second Circuit. Judge Candace Jackson-Akiwumi is an alumna of Chicago's Public Defenders Office, appointed to the 7th Circuit and Sherrilyn Ifill, the civil rights attorney who recently announced plans to step down from her role as president and director council of the NAACP Legal Defense and Educational Fund.

And, Bianna, it's interesting, on this list, one commonality we've seen with a lot of Biden's court appointees is getting folks not necessarily with a court background, public defenders, people with a more diverse, professional background.

GOLODRYGA: Yes, a really wide net here. SCIUTTO: Yes.

GOLODRYGA: And Justice Breyer's successor, we should note, will become the 116th justice to serve on the Supreme Court. It is no doubt a significant moment in history. Of the 115 justices who served so far, 108 have been white men, compared to two black men, four white women and one Latina.

Well, joining us now to discuss is Gloria Browne-Marshall, a civil rights attorney and author of "She Took Power: The Black Woman Law and Power," and Laura Coates, a senior CNN legal analyst and a former federal prosecutor. She's also the author of the new book "Just Pursuit: A Black Prosecutor's Fight for Fairness."

Welcome, both of you, on this really groundbreaking day and news.

Laura, let me begin with you, because this pick won't change the ideological balance of the court, right? You're replacing one liberal with another. But it will change the diversity balance of the court. And I think back to President Biden, promising that his cabinet will look like America. And now it appears that the highest court in the land will look more like America as well.

How significant is that?

LAURA COATES, CNN SENIOR LEGAL ANALYST: It's extraordinarily significant. I mean, it's not the idea of diversity for diversity's sake. Every one of the women who were on that short list you already mentioned, extraordinary credentials. Women of extraordinary legal merit who are revered in their communities at the legal bench, in the bar, for their expertise, their intellect, their ability to be impartial. And I think that's a high bar, what you should expect, of course, from a Supreme Court justice. The extraordinary spectrum of opinion and diversity is important to really evaluate the laws in this country.

Remember, we're talking about very significant cases finding themselves in front of the supreme Court. This term alone, the abortion ban, the idea of affirmative action. In the next term going forward, voting rights sure to essentially be on the docket at some point, the Second Amendment, all issues very important to the overall fabric of our nation, and the really exclusion, up to this point, of black women as viable candidates and nominees is really a problem for America, but not because there was a dearth or an absence of people who were qualified.

And so I'm very heartened to know that these extraordinarily qualified women will find themselves with the opportunity to have a confirmation hearing. I certainly hope it will be fair. And at the same criteria that was used to evaluate other members of the bar, including those with limited appellate experience, those who have never even been a judge, that they will be given the same benefit of the doubt, an opportunity to demonstrate their intellect the way everyone else has been.

SCIUTTO: Gloria Browne-Marshall, it's quite a term, right, this term and the next term. So this justice, along with the other eight, will be facing crucial, crucial decisions for this country on a whole host of things, from gun rights, to abortion rights, to affirmative action perhaps.

I mean, tell us, you know, what this means for the court. It's not going to change the makeup 6-3 conservative-liberal, but the decisions they're going to face, consequential.

GLORIA BROWNE-MARSHALL, CONSTITUTIONAL LAW PROFESSOR, JOHN JAY COLLEGE OF CRIMINAL JUSTICE: Very consequential. But also keep in mind, from a legal history standpoint, the first black female lawyer was in 1872. 1872. When we go back to Jane Bolin, the first black female judge, and we think about the fact that she was in 1939. We have Constance Baker Motley, our first black female federal judge, in 1966. So, we have a long history of black women in the law.

It's not a coincidence that our first first black first lady is a lawyer, that our first vice president who's a woman is also a lawyer. The law has been a very important part in the makeup of not just how we fought for liberation as black women, but also how this world has been able to look at our prism of freedom and democracy.

So, these women have been wrestling with issues for a long time and they have been -- as was pointed out -- on the highest end of our spectrum of legal integrity, as well as people for who have been vetted before.

[09:15:05]

GOLODRYGA: And, Laura, listen, from Justice Jackson to Kruger to Childs and the others on that list, you know, it's an embarrassment of riches one could say in terms of the qualifications that the president has at his ready as he makes his choice. But we know the jockeying will only now begin.

Talk about who you think stands out amongst these possible candidates and why.

COATES: Well, it's an embarrassment of riches, you're right. It's also an embarrass that these riches have been available for quite some time, as my colleague just noted.

And the idea of who would stand out, that's one of the most joyous things for me as a black woman who is an attorney, that the idea that of all of the women that have been on this short list, I don't know of a single reason that would disqualify them or make me question their minds or make me question their credentials. And I think that's an important note to say that President Biden certainly has his work cut out for him.

Of course, I was a year behind in school of at least one of the people here, we're talking about Judge Candace Jackson out of Chicago as well. And even at 17 years old, I can tell you that she was an intellectual force to be reckoned with. And I knew that then.

In my own home state of Minnesota, Judge Mimi Wright, who sat on the state appellate court, the state supreme court and now a federal district court, you're not talking about someone inexperienced.

Sherrilyn Ifill, everyone knows her work from civil rights advocacy. And everyone down the line you could talk about. And I highlight only a couple of them, but not because they could be excluded from the overall conversation.

But this is the point, I am very curious going forward as to how these women will be treated, and vetted, and viewed. I've already seen rumblings on other networks about, well, are they qualified enough, and have they had a long enough tenure. Questions that were not asked of those who have been recently stated, who have had shorter appellate histories. And so I'm looking to see how America now receives this embarrassment of riches.

SCIUTTO: Do you believe, Gloria Browne-Marshall, that this might get some Republican support, granted it's such a partisan process now. I'm not talking about a lot, but some Republican support given the historical nature of this potential pick?

BROWNE-MARSHALL: I think of the historical nature of it. But also, when you think about the states from which these women either reside now or were working should support their nominations. I mean, yes, this is a political process, yes, this is going to be very divisive, but I think these women deserve the full, honest look at their credentials and to understand what they bring to the bench. And if there are contenders who are outside of, you know, being black women, and I'm sure there are, then let's compare apples to apples and see who comes out ahead.

SCIUTTO: Gloria Browne-Marshall, Laura Coates, thanks so much to both of you. We're going to be talking about this a lot in the coming weeks.

Coming up next, Russia has responded now for the first time to a U.S. letter addressing some of their demands. I'm going to speak to the State Department spokesman about how the two sides -- can the two sides move forward to avoid military conflict in Ukraine?

GOLODRYGA: Plus, Moderna just started the next phase of its trial for an omicron specific vaccine. But there's also new data about how much protection its current booster provides.

And a Florida radio host is cooperating with the sex trafficking investigation into Congressman Matt Gaetz. What his lawyer says he was able to share with federal investigators.

(COMMERCIAL BREAK)

[09:22:49]

SCIUTTO: New this morning, the Kremlin says Vladimir Putin has now read the U.S. and NATO's written responses to Russia's security demands. And while insists he will not rush to judgment, also warns, quote, there are few reasons for optimism because, Russia says, their prime concerns were not addressed.

Joining me now is State Department spokesperson Ned Price.

Ned, good to have you on this morning.

NED PRICE, SPOKESPERSON, STATE DEPARTMENT: Thanks for having me, Jim.

SCIUTTO: As the U.S. and NATO has spoken to Russia, kept diplomatic channels open, Russia has been adding forces, not subtracting them, from in -- from around Ukraine. What evidence do you have, does the U.S. have, that diplomacy is working?

PRICE: Well, Jim, we've been very clear that we want diplomacy to work. We've been very clear that diplomacy needs to work because diplomacy is the only responsible way to resolve this crisis that Moscow has needlessly precipitated. But, we have also been consistent in saying that in order for diplomacy to work, it needs to take place in the context of de-escalation. Certainly not in the context of escalation.

To your question, you're right, we have not seen signs, we have not seen tangible signs just yet that the Russians are in the process of de-escalation. That remains an option for President Putin. We certainly laid out some ideas in the written response that we provided to the Russian federation yesterday. Ideas that we think would be effective, would be constructive, and would address our mutual concerns, as well, of course, of our -- the concerns of our allies and partners in Europe.

SCIUTTO: OK. Given that you, therefore, have not seen evidence of de- escalation, is the U.S., are NATO allies, prepared to act now, that is before a Russian invasion, either in terms of troop movements, or economic penalties for Russia, prior?

PRICE: Well, we are -- we are acting now. And we have been acting for weeks now, Jim. Let me talk about some of what we've done. We've talked about the dialogue and the diplomacy side of the ledger, but there's also another side of the ledger, and that's defense and deterrence. And we have been moving aggressively. We have been moving constantly in that direction for weeks now. We have provided more than $650 million over the last year to our Ukrainian partners. This is defensive security assistance.

[09:25:01]

That is more security assistance than any administration has ever provided to Ukraine.

SCIUTTO: OK.

PRICE: This is material to -- so that Ukraine can defend itself. On top of that, we have been very clear that if Putin moves into Ukraine, we will provide even more. When it comes to NATO, the president and the secretary of defense have put at a heightened state of readiness 8,500 U.S. troops.

SCIUTTO: Yes.

PRICE: Troops that can be called into service should that need to be the case. We certainly hope it's not the case.

One more key ingredient here, Jim, on top of all that we're doing. We have been very clear, we have been working with our allies and partners over the last couple of months now to put into place a series of significant, severe and sudden measures that would inflict substantial costs on the Russian federation if Vladimir Putin were to move forward in an aggressive way against Ukraine.

SCIUTTO: OK. There are many, as you know, American citizens, passport holders in Ukraine. Do you know how many and do you have plans to get them out if a Russian invasion happens suddenly?

PRICE: Well, Jim, we've been warning for months now that Americans should not travel to Ukraine. And we've reiterated those warnings in recent days. And we've actually been communicating with Americans in Ukraine, indicating to them that they should strongly consider leaving Ukraine now. This is about prudent preparation because we know a few things. We know that Russia has more than 100,000 troops amassed along Ukraine's borders. We know that Russia has tens of thousands of troops in what should be the sovereign independent country of Belarus.

SCIUTTO: Yes.

PRICE: All of this and more adds up to the fact that Russia is poised -- could be poised to move against Ukraine at any moment. And the security situation could deteriorate rapidly if that happens. So, we have been urging Americans to strongly consider leaving. Commercial options are widely available.

SCIUTTO: For now.

PRICE: Our embassy in Kyiv remains open.

SCIUTTO: Yes.

PRICE: It remains open. Our embassy is prepared to do everything from assisting Americans to book these flights to offering them loans if they can't afford a commercial option.

SCIUTTO: OK.

PRICE: So, we are working around the clock, as we always do, to support American citizens, to message to them, and to indicate what they should be doing.

SCIUTTO: OK.

PRICE: And right now we think they should be strongly considering leaving using those commercial options.

SCIUTTO: OK. A couple more things I want to get to and we have limited time.

Is Nord Stream 2 dead if Russia invades Ukraine?

PRICE: Jim, I want to be very clear about this, if Russia invades Ukraine, one way or another, Nord Stream 2 will not move forward.

SCIUTTO: OK. That's a direct answer.

I want to ask you about -- well, is Germany on board? Because, of course, this is a German/Russian project.

PRICE: Well, look, I'm not going to get into the specifics, but we will work with Germany to ensure Nord Stream 2 does not move forward. You have heard statements from our German allies, even over the past 12, 16 hours, speaking to the strong measures that the German government is ready and willing to put in place.

SCIUTTO: I want to ask you about Afghanistan now, because an evacuation flight chartered by the U.S. government left Kabul in the last 24 hours, the first time since November. Is the U.S. still committed to getting the many thousands of Afghans who served alongside the U.S. out of the country safely, given the threats that they face, and where does that process stand?

PRICE: Absolutely. We are absolutely committed to that. You've heard that since August when the U.S. military mission in Afghanistan came to an end, and you've seen us make good on that promise. Among our core interests, a priority of ours is to provide the -- to provide the -- facilitate the safe departure of Americans, U.S. citizens, of lawful permanent residents and, as you mentioned, Afghans to whom we have a special commitment to leave the country if they so choose.

Since August 31st, nearly 1,000 U.S. citizens and lawful permanent residents have been able to leave the country, have chosen to leave the country, with our assistance --

SCIUTTO: No, but it's -- you have tens of thousands of special immigrant visa applicants, as you know, and they're the ones who, sadly, the vast majority are left behind.

PRICE: Well, Jim, you know that during the evacuation process in August we were able to evacuate more than 124,000 individuals. These are many individuals who are either SIV, Special Immigrant Visa, holders, or who -- who are SIV eligible.

But, again, our commitment to those individuals who remain in Afghanistan, who choose to leave is enduring. We are supporting them. Those who are at a certain stage of the process are eligible to receive our assistance in leaving the country. We're continuing to process them constantly.

As you know, Jim, we inherited a program that was decrepit, that was literally at a standstill. A program that had not conducted a single interview in Kabul since March of 2020, the year before we took office. What we did, in the course of just a few short months, was to put in place a system to make much more efficient the processing for special immigrant visa candidates. We went from processing 100 candidates a month to about a thousand in August.

[09:30:01]

And that processing continues.

SCIUTTO: OK.