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Today, Justice Breyer to Announce Retirement at White House Event With Biden; Kremlin Says, Putin Read U.S. and NATO Responses, Won't Rush to Judgment; Soon, Wake Begins for Fallen NYPD Officer Jason Rivera. Aired 10-10:30a ET

Aired January 27, 2022 - 10:00   ET

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

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[10:00:00]

JIM SCIUTTO, CNN NEWSROOM: A very good Thursday morning to you. I'm Jim Sciutto.

BIANNA GOLODRYGA, CNN NEWSROOM: And I'm Bianna Golodryga.

Our top story this morning, in the coming hours, the president will appear alongside Supreme Court Justice Stephen Breyer at the White House as Breyer expected to announce retirement after 28 years on the bench.

SCIUTTO: The 83-year-old liberal justice is giving President Biden a chance to deliver on a major campaign promise to nominate the first African-American woman to the highest court in the country. But big questions remain about who that will be, also how long it will take to get her confirmed. We're following all the legal and political aspects of this.

With us now, CNN Supreme Court Reporter Ariane de Vogue and Chief Congressional Correspondent Manu Raju.

Ariane, beginning with you, talk to us about timeline, because there's kind of an interesting two-track thing going on, he stays until the end of the term but they start the process now.

ARIANE DE VOGUE, CNN SUPREME COURT REPORTER: Right. Well, for years, the process was usually between two to three months. There was the pick and then the vet and then the nominee would go and visit with all the senators but all that changed, remember, with Justice Amy Coney Barrett. There, the Republicans really pushed it, they compressed it from announcement to confirmation. It was about 30 days. So, you could see here the Democrats moving very quickly. They could have hearings, they could even have a vote and then the president wouldn't sign off on the commission until after the term, right, when Breyer has finished on the term.

On the other hand, timing is interesting because this hearing is about a lot more than the nominee. First of all, it's going to be, as you said, the first African-American woman. That in itself is a huge milestone. But it's also going to play out while the Supreme Court is actually right now considering some of the biggest issues of the day. They're considering whether to overturn Roe v. Wade. They're considering whether to expand gun rights. Next term, it's going to be affirmative action. So, some Democrats see this as a rare opportunity to engage people who may not always be exactly focused on what's going on in the court to say, this is why it matters.

And, of course, Durbin, it will be the first time that he chairs one of these hearings. He's going to be careful. He may not want to raise too much. He may want to take advantage of this opportunity that, of course, all comes as the political process is set to play out in the upcoming elections. That's why the timing here is so interesting.

GOLODRYGA: And, clearly, Ariane, Justice Breyer put a lot of thought into this timing as well in interviews with you and others. You could sense that he was a bit frustrated when asked that question but here he gives a lot of time for the president to make that choice, if the president chooses to take that time. It appears that they're not, though, Democrats, Manu, on the Senate Judiciary Committee already to have a meeting on the books to come up with a confirmation strategy. What more can you tell us about that strategy?

MANU RAJU, CNN CHIEF CONGRESSIONAL CORRESPONDENT: Yes. Dick Durbin is convening a member -- a meeting of his 11 members, including him, on this committee sometime today. They're going to meet virtually. They're going to discuss the process, laying out exactly what will happen. There will have to be a questionnaire that will go to the nominee after the president picks his nominee. And then there will be an opportunity for the committee members to meet with the nominee. There will also be, of course, the hearing, which will potentially happen relatively quickly. That's what Chuck Schumer, Senate majority leader, wants to do. I'm told that he is looking at following that Amy Coney Barrett timeline, which took about a month between the time that the nomination was made until the time of confirmation. So, they want to move quickly.

But Durbin also has limitations because of the fact that they are in a 50/50 Senate. They have to be careful in not to put off some of their swing votes, some people who may want more time, or yesterday, Senator Susan Collins of Maine, a swing vote on this issue on the Republican side, raised concerns about moving too quickly. And that is something they will have to consider as they move ahead.

There are also procedures allowed under rules of the Senate for republicans, if they wanted to scuttle a vote from happening, they could essentially do that by denying a quorum and potentially, if there's concern, if they move too quickly, they could actually forge, Republicans could try to take some recourse in their hand to try to slow down the process. So, these are the kind of things that Democrats will have to work through as they lay out their strategy, lay out their timeline to pushing ahead.

But, nevertheless, guys, Democrats are confident they will have the votes at the end of the day. It's a 50/50 Senate. Those two swing votes, Joe Manchin and Kyrsten Sinema, have voted for every Biden judicial nominee. Manchin vote for two of the three Trump Supreme Court nominees and there's expectation they will be there at the end of the day that could potentially pick up some Republicans as well.

[10:05:02]

SCIUTTO: Listen, fast or slow is in the eyes of the beholder. Just look at Barrett and Garland, in terms of how that is ratcheted up and down, depending on the politics. Ariane de Vogue, Manu Raju, thanks very much.

Joining us now to discuss, CNN Legal Analyst Elliot Williams, a former federal prosecutor and deputy assistant attorney general and former Federal Judge and then Thomas Griffith, he's a Harvard Law professor who served on the D.C. Circuit from 2005 to 2020. Thanks to both of you.

Elliot Williams, in terms of the significance for the court, this is a hold, right, for Democrats and the liberal wing, given that you're replacing one liberal with another, but tell us the significance here.

ELLIOT WILLIAMS, CNN LEGAL ANALYST: Look, there's a couple of bits of significance. Number one, it's a hold if it's a question of counting the noses of people elected by the court by Democrats versus Supreme Court by Republicans. But what it does is it secures a seat on the court for 25, 30, however many years just looking at basic human life expectancy. So, number one, it puts someone who's more liberal on the court for a longer period of time.

Number two, President Biden has committed to putting a black woman on the court. That is profound in American history. Look, it took some 178 years before a black person was put on the court in 1967. It was many years before, after that, in 1981, when a woman was put on the court. It's just time to diversify the Supreme Court more. This is a very profound and very significant and very important step forward for all of us as a nation and everybody who thinks in terms of equal rights for all.

GOLODRYGA: Yes. Elliot, it was interesting to hear you and Senator Lindsey Graham seem to agree on one point yesterday and that is that elections do have consequences.

Judge Griffith, let me turn to you, because President Biden named you to a commission to study the Supreme Court that was formed last April. As we heard, Senate Majority Leader Chuck Schumer wants to move this quickly. Walk us through the timeline here and how quickly this actually could work out.

THOMAS GRIFFITH, FORMER FEDERAL JUDGE: Well, that really is up to the leader. There are rules in place. There are rules regarding the time that it takes to bring an action before the Senate Judiciary Committee. But those are all subject to majority vote and this could be done very quickly. It's really -- it will really be up to Leader Schumer and to Chairman Durbin, how quickly they want to move on this.

SCIUTTO: When you look at the candidates, Elliot Williams, here, you have a lot of, I mean, supremely qualified women, enormous variety. Do you see, based on your knowledge of this, a favorite here?

WILLIAMS: Look, I'm not at the White House, so I don't see a favorite. All of the candidates that have been put forward are either Harvard Law graduates, federal judges, law professors and people with sterling credentials. Any of whom would be a tremendous asset to the Supreme Court.

To pick up on Bianna's point though about elections having consequences, this matters in terms of who President Biden put on the court. It mattered when Republicans were able to hold open a vacancy for more than 300 days when they have a majority and it will matter for President Biden and his ability to fill future seats, elections, and not just for the presidency but the United States Senate matter and have profound consequences for decades to come.

SCIUTTO: Just footnote there, the one who is not from the Harvard pantheon is Michelle Childs, University of South Carolina, a proud graduate there.

WILLIAMS: But a federal judge.

SCIUTTO: I'm not questioning the credentials. I'm just saying, you have someone outside of that tiny little bubble.

WILLIAMS: Of course.

GOLODRYGA: And, clearly, that's someone Jim Clyburn has been pushing for the president to nominate.

Can I ask you, Judge Griffith? Obviously, we are right to focus so much on this monumental change that we would see with a black woman on the Supreme Court bench. But can you talk a little bit about Justice Breyer's legacy, having served there 28 years? He was described as someone who looked beyond, I'm going to quote this, a lost text, to its, quote, purposes and consequences. What lasting impact will he leave for the Supreme Court?

GRIFFITH: Well, it's a great loss for the Supreme Court. Justice Breyer and throughout his tenure was adamant at a point that the media doesn't pick up on and probably disagrees with, and that is that judges are not partisans in rogues. Justice Breyer would not be pleased with the description of him as a liberal hit of the liberal wing of the Supreme Court. He viewed himself, and I think rightly so, as a judge who, by oath, did his best to be impartial in applying the law. He wasn't there looking for certain outcomes that favored Democrats or progressives. He was doing his best to apply the law as required by the Constitution, the statutes.

He was an expert, before he came a judge, he was one of the leading scholars on an area of administrative law.

[10:10:00]

That's an area that big issues coming up on the Supreme Court about the role of federal agencies and whether they have overstepped bounds or whether they have done more than Congress has allowed them to do. And Justice Breyer was looked to because of his experience and his scholarship as a leader on the court when it came to issues of administrative law. So, his expertise in that area will be greatly missed.

But one final thing, he had more experience before he was a judge, working on Capitol Hill as a Senate staffer than any of his colleagues and you saw that in his opinions, a lot of deference to Congress, to acts of Congress. That was his natural inclination. That inclination is not shared by all of his colleagues on the Supreme Court.

SCIUTTO: Judge Griffith, you say that Justice Breyer's belief was that judges are not political. Do you still believe that, given what we've seen with the juicing of the process, for instance? Some presidents allow the right to make appointments, others not, and also decisions that have come out that seem to favor one party over another.

GRIFFITH: Yes, no, there's no question it's a political process, right? I mean, it's our elected representatives who choose the judges. What I'm endorsing Justice Breyer's view here is in that in the act of judging, judges do not confer together to decide, will this outcome favor this political party? Will this outcome disfavor this political party? That is just not how it's done.

There are vigorous disagreements among judges about how best to interpret the Constitution, how best to interpret the statute, and so you see divisions along those lines. But the idea that the justices or judges, more broadly, are looking to help the Republicans or help the Democrats, I've been there, I'm telling you, it just doesn't work that way.

WILLIAMS: And I can just say one thing, Jim. Sorry, that's a noble aspiration. That is a very noble aspiration from the judge, I respect it and appreciate it. But the simple fact is there's a remarkable tracking right now of judges that, at least on the Supreme Court, judges that were appointed by Republicans and judges that were appointed by Democrats, and how you can predict how they might vote.

Look, I've worked in, as a prosecutor, as a lawyer for years, but the simple fact -- and we would strive and we should strive for a political judiciary, but it's just not operating that way in practice anymore.

GOLODRYGA: Listen, Justice Breyer publicly expressed --

GRIFFITH: And I guess we'll just -- I guess we'll just have to disagree on it.

GOLODRYGA: Yes, we'll have to wrap it up here. Just to put a pin in this though, I mean, Justice Breyer was very outspoken about how dangerous he thought it was to associate any justice or judge with the president who nominated them. Judge Thomas Griffith and Elliot Williams, thank you so much for joining us. We appreciate it.

And still to come, the Kremlin reacting to the United States' written response to Russia's demands in the escalating Ukraine crisis. So, what happens next?

Plus, Prince Andrew is now apparently ready to fight the sexual abuse allegations against him in court. Why he's now demanding a jury trial.

SCIUTTO: And police are now begging for help to track down a killer who took the 16-year-old girl and dumped her body next to a Los Angeles freeway. We're going to have a live report coming up.

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[10:15:00]

GOLODRYGA: New this morning, the Kremlin is warning that there are a few reasons for optimism after receiving written answers from the U.S. and NATO, addressing Russia's security demands, saying its prime concern, NATO's expansion in Europe was ignored.

Moscow also says Vladimir Putin has read the written responses but will not rush to judgments and could be open to negotiation on some point, such as arm controls and the placement of missile systems in Europe.

Well, joining me now to discuss is James Goldgeier, visiting scholar at Stanford University Center for International Security and Cooperation. He is also the former director for Russian, Ukrainian and Eurasian Affairs on the National Security Council. James Goldgeier, welcome to the program.

If I can, now that sort of the ball and the written response is literally in Putin's hands, I'd like to pull up a picture that I think really speaks volumes as to the situation we're in right now and that is Putin solo today commemorating the siege on Leningrad, the 78th anniversary of the siege of Leningrad. There he is by himself. And it does lead to the question of, what is he thinking and why haven't we heard from him in the past month on this issue in particular.

JAMES GOLDGEIER, VISITING SCHOLAR, STANFORD UNIVERSITY'S CENTER FOR INTERNATIONAL SECURITY AND COOPERATION: I don't think we know what he's thinking, and I think that's why even President Biden said, it's like reading the tea leaves and this is just very different from dealing with other leaders and particularly for others in the U.S. government, like Secretary Blinken dealing with Russian Foreign Minister Lavrov, who may not even know what Putin is thinking. It's just very hard to know whether he's looking for an off-ramp here. The United States and NATO are willing to have a conversation on European security issues. But if what he really wants is to overthrow the government in Ukraine and install a pro-Russian puppet, as far as that will be in terms of the Ukrainian population, you know, we just don't know what his ultimate motives are right now.

[10:20:03]

GOLODRYGA: As far as deterrence, it is pretty striking how transparent, right, and public the U.S. and NATO have been as to what the consequences are. Sanctions are on the table and are limitless at this point. Troops are at the ready to be deployed. Artillery and ammunition and any other sort of aid is being sent. And then there was this, this morning, in terms of natural gas applied to Europe and Nord Stream 2. I want to play sound from Ned Price, who is the spokesperson for the U.S. State Department. And what he said to Jim Sciutto, when Jim specifically asked him, is Nord Stream 2 dead if Russia invades Ukraine? Take a listen to what he said.

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SCIUTTO: Is Nord Stream 2 dead if Russia invades Ukraine?

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

(END VIDEO CLIP)

GOLODRYGA: It's clear there Ned wasn't speaking off the cuff. He was prepared for a question like that. If there is a way to deter Putin, do you think that's it?

GOLDGEIER: Well, the west has put a whole set of costs in front of Putin if he decides that he wants to go in, again, militarily into Ukraine and Nord Stream 2 is just one of the things on the table. I mean, I think for those of us on the outside, when we look at this, we just see an enormous array of costs post to him, and it's just hard to see how any further military aggression would pay off for him. But, again, we just don't know what his calculations are. But the United States and the west have put it all out there, as you've just said.

GOLODRYGA: Yes. I feel into my trap by asking what was Putin thinking, because that question really bothers, because, clearly, no one knows but Putin. But to the idea that he perhaps is a pragmatic, practical man, right, it begs the question is the Putin today different from the Putin 20 years ago or even eight years when he went into Crimea? He's an older man, right? He's got a shrinking economy, shrinking demographics, he's thinking about his legacy and he's seeing other authoritarians around him really struggle to keep their regimes intact as well.

Given that, do you think that the U.S. president and members of NATO are considering that this is a different man that they are dealing with than before?

GOLDGEIER: Well, I think the U.S. and the NATO allies are certainly concerned about his designs on Ukraine, his statements last summer that Russians and Ukrainians are one people, his earlier comments going back with the George W. Bush administration that Ukraine isn't even a real country. I mean, he's very dismissive of Ukraine, sees it as belonging the Russia. And in terms of the difference, you know, his popularity has been declining. He got a big popular boost in 2014 with the invasion of Ukraine and the annexation of Crimea. When you get that again, it's just hard to see how this would help boost his popularity at home if the Russians end up in a war, in which you've got a lot of Russian soldiers coming home in body bags.

GOLODRYGA: Yes. We do know, and we discussed this yesterday just from public opinion polling though, that the narrative in Russia has shifted to his favor thanks to propaganda, and that if there is an invasion, it may not be popular but the majority of Russians appear to believe that it is Russia that's the aggrieved party here. So, that makes things a bit alarming as well. James Goldgeier, thank you, as always.

GOLDGEIER: Thank you.

SCIUTTO: Today, thousands are expected to pay their respects to a rookie NYPD officer, just 22-year-old, killed in the line of duty. That's St. Patrick's Cathedral there in New York. We're going to be live, next.

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[10:25:00]

GOLODRYGA: A solemn day as the family of a fallen NYPD officer, Jason Rivera, is gathering this morning for his wake. The 22-year-old rookie and his partner, Officer Wilbert Mora, were killed after being ambushed during a domestic disturbance call in Harlem last week.

SCIUTTO: He's just so young. Hundreds of people gathered for an emotional vigil last night to mourn both officers.

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UNIDENTIFIED MALE: -- Jason, he felt like a brother to me.

UNIDENTIFIED MALE: Our two heroes, our two angels, and Wilbert and Jason, these men carried themselves with pride.

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SCIUTTO: CNN's Shimon Prokupecz joins us now from outside St. Patrick's Cathedral, where this is taking place. Shimon, a remarkable setting for this, right, of course, St. Patrick's Cathedral. Tell us all that's taking place today.

SHIMON PROKUPECZ, CNN CRIME AND JUSTICE CORRESPONDENT: Yes, iconic location, certainly one of the world's most famous cathedrals. The city has decided to hold this funeral here given the gravity of this moment. This officer so young, just 22 years old, and just over a year on the job, ambushed, killed while responding to this domestic incident call.

So, today is his wake. This morning, first, his family will be with him. His coffin will be brought here some time after 11:00 A.M. And we will see thousands of police officers gathered here outside the cathedral, side by side, as his coffin is brought into the cathedral, walk down the aisle with the NYPD ceremonial unit.

[10:30:04]

We'll hear the pipes and drums. But, no doubt, his family will be here, his mother, his wife --