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Early Start with John Berman and Zoraida Sambolin

Trump Nominates Judge Neil Gorsuch to Supreme Court; White House Defending the Ban. Aired 4:30-5a ET

Aired February 01, 2017 - 04:30   ET

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

CHRISTINE ROMANS, CNN ANCHOR: Political showdown, igniting over the vacancy on the Supreme Court. With President Trump's nominee public, Democrats gearing up for a battle to protect the seat they believe was stolen.

JOHN BERMAN, CNN ANCHOR: And a despite repeatedly calling the executive order a travel ban, the White House now says it is not, in fact, a ban, no matter what we called it. So, what do they want us to call it now? And how do they intend to move past the messy rollout?

[04:30:02] Welcome back to EARLY START, everyone. I'm John Berman.

ROMANS: And I'm Christine Romans. Nice to see you this morning. It is thirty minutes past the hour; 4:30 in the East. Thanks for being up with us this morning.

It's been a source of a vigorous political jockeying for nearly a year now. The battle over the vacant Supreme Court seat begins anew this morning.

Overnight, President Trump announced his nominee Neil Gorsuch, a federal appeals court judge from Colorado. Republicans on Capitol Hill are cheering the pick. Gorsuch is a constitutionalist, best known for the Hobby Lobby decision ruling companies could avoid paying for contraception citing religious objectives.

Gorsuch has another big selling point for conservatives. He's only 49 years old. That could tip the balance of the court for decades after President Trump leaves office.

BERMAN: The Democrats, though, they're saying, hey, wait a minute here. They're still seething over the fact that Republicans refused to even consider President Obama's nominee, Merrick Garland, for nearly a year. No hearing, no nothing.

So, some Democrats are calling this a stolen seat and have already pledged their opposition to Judge Gorsuch, calling him outside the mainstream. Now, both the president and Judge Gorsuch know they are in for a tough fight.

(BEGIN VIDEO CLIP)

JUDGE NEIL GORSUCH, SUPREME COURT NOMINEE: As this process now moves to the Senate, I look forward with speaking with members from both sides of the aisle, to answering their questions and to hearing their concerns.

DONALD TRUMP, PRESIDENT OF THE UNITED STATES: I only hope that both Democrats and Republicans can come together, for once, for the good of the country.

(END VIDEO CLIP)

BERMAN: Again, Democrats say there's irony here, then Trump was saying to Republicans not to come together on the nomination of Judge Merrick Garland. Now, he feels differently. The first courtesy calls coming in hours. For months to come.

Let's get the new developments from CNN justice reporter Laura Jarrett live from Washington.

You know, it was a fairly meticulous rollout overnight, Laura.

LAURA JARRETT, CNN JUSTICE REPORTER: It was, John, as the president said in his remarks, Neil Gorsuch has a pretty impressive academy background. As you might expect, he's got degrees from Columbia, Harvard, Oxford. He spent his teenage years in Washington. His mom was the first woman to become the head of the Environmental Protection Agency.

He clerked on the Supreme Court for Justice Kennedy but his judicial philosophy isn't a secret. He's described as predictively socially conservative, much like in the mold of the late Justice Scalia. He believes in following an original interpretation of the Constitution.

In terms of some of the more notable indications he was one of the original judges in the Hobby Lobby decision where the 10th Circuit ruled the corporations can refuse to cover birth control under their employees' health insurance plans. That ruling was later upheld by the Supreme Court.

He was somewhat of a sleeper choice up until recently. He wasn't even on Trump's original list that was put out back in May. But in the past several days we heard he was rising to the top -- John.

BERMAN: And now, the question is, how hard will Democrats fight. Will this nomination sail through?

What's the current betting in Washington, Laura?

JARRETT: Well, he certainly sailed through his last Senate confirmation when President Bush nominated him to the federal bench in 2006. Senate Majority Leader Mitch McConnell gushed about him last night, saying the president has made an outstanding choice but times are different now. For months, Senate Democrats have promised payback for Republicans' refusal to even grant a hearing for Judge Merrick Garland, President Obama's pick for the Justice Scalia seat.

Senate Minority Leader Chuck Schumer put out a statement last night, saying the country needs a Supreme Court justice willing to stand up to the president. And so, while Republicans do enjoy a majority of seats in the Senate right now, they're going to need to pick off at least eight Democratic votes in order to get to that 60-vote threshold.

So, you know, it's going to -- we'll have to see how it turns out. On the other hand, this is Justice Scalia's seat. It's not a swing vote like Justice Kennedy or one of the more progressives on the court. So, some might say putting in Gorsuch right now restores the court to its previous ideological balance -- John.

BERMAN: Early riser, Laura Jarrett, with us again this morning -- great to have you, Laura.

JARRETT: Thanks.

ROMANS: All right. Let's discuss the nomination with another early riser, former federal prosecutor for the middle district of Georgia, Michael Moore, an Obama appointee. He's live for us this morning in Atlanta.

Good morning.

Tell us a little bit more about Judge Gorsuch. I mean the two big draws for conservatives here is a solid track record of conservatism and his age, 49 years old. He could be on this court a very, very long time.

MICHAEL MOORE, FORMER U.S. ATTORNEY, MIDDLE DISTRICT OF GEORGIA: He really could. He's one of the youngest in recent history to be nominated to the courts. In fact, his time as a law clerk there makes him a little bit unusual on the fact that he was nominated to sit on the court where he served as a law clerk under two justices, Anthony Kennedy who's still there.

[04:35:02] So, he does have the ability to impact the court in the decision process for decades literally. And I think that's obviously something that the Democrats are weighing out. I was interested to listen to the previous reports about the politics and moving him through the process.

I think Democrats need to be careful because there's no real question here that Judge Gorsuch has the academic pedigree and background, and a proven ability as a skilled legal writer and decision maker to meet the qualifications for Supreme Court justice.

I think we need to sort of set aside. Democrats might need to set aside the idea that somehow the treatment of Merrick Garland is now going to come back to be revisited in the Gorsuch nomination process.

BERMAN: The problem is that Democrats will no doubt saying Merrick Garland had all those same academy qualities, all those same judicial qualities, and it was held up.

Let's get to politics in a second. But I want to talk more about the legal aspects of this and what kind of Judge Gorsuch is. He talked about it last night how he thinks judges should apply the law. Let's listen to what he said.

MOORE: OK.

(BEGIN VIDEO CLIP)

GORSUCH: I respect to the fact that in our legal order, it is for Congress and not the courts to write new laws. It is the role of judges to apply, not alter the work of the people's representatives. A judge who likes every outcome he reaches is very likely a bad judge, stretching for results he prefers rather than those the law demands.

(END VIDEO CLIP)

BERMAN: So, we hear the phrases, constitutionalist, textualist, we hear those thrown around. And I'm not sure that I fully understand what they mean. So explain.

MOORE: He's described as an ardent textualist, much like Justice Scalia. And really what that means is that he thinks that the words themselves have meaning. And that the words in the Constitution were put there by the framers for a specific purpose and that we should interpret those words specifically, and not look to the Constitution to be a moving document to fit the circumstances as they ebb and flow.

I do think, it was interesting as I've looked back a little bit in his past, about a decade ago when he was up for the confirmation for the circuit court, he was very careful to make sure that he told the Senate Committee he did not want to be pigeonholed. He didn't want to be defined necessarily about a particular judicial philosophy, and sort of warned against that for judges in general.

He said, look, if you're pigeonholed and you lean that way, then you miss the gray areas of the law. And there are a lot of parts of law that are in fact gray. He pushed back even farther when questions by Senator Graham about the idea about an ideologue and why that's a negative thing for a judge.

So, I think he has a history of being a conservative judge and certainly in the Hobby Lobby case and other cases about religious liberty, he's given very specific, very conservative positions. At the same time, he's talked in the past about the fear of being designated or classified just as an idealistic judge, particularly one side or the other. It will be interesting to marry those two as we go through the confirmation process.

ROMANS: What do you make of the fact that he wasn't on the original list, the first list of potential SCOTUS nominees that the president's team put out. And sort of served as sort of a sleeper hit, if you will?

MOORE: Well, I think that list, the foundation, I think put out some names early on. I think that was a little bit different maybe from what we've seen in the past. Certainly way back in the campaign, they were floating out names of people down a list of who may or may not be on the court. It doesn't mean much to me, the fact that he was not on the list. I think that it's not unusual to have somebody sort of rise to the top. As you look at other people's records and things like this.

So, I don't put a lot of stock on the fact that he wasn't on the original list. Again, I think he's generally well-respected. And I think it's -- he'll be a pick that now the Democrats will have to decide are they going to stand on this hill. Or is this somebody they can accept in the end.

BERMAN: Well, we have about 30 seconds left. The question, Michael, is, is it better for Democrats to stand on the next hill which would mean the next Supreme Court vacancy which very much could come from the center or left of the bench?

MOORE: Well, I think that's something that they need to consider. If knack they hold steadfast in their opposition for Judge Gorsuch, then they force the Republicans to vote the nuclear option which changes the count vote necessary move a Supreme Court nomination through the Senate. If that happens, and you get down to a simple majority vote as opposed to a 60-vote threshold that's needed, then that could be in place for a long time. There's a saying is, it's a long road that has no turns in it, I think the Democrats need to think it could be the next vote, next vacancy that's in fact open may be important as we move forward.

BERMAN: A long road with no turns. It sounds like Iowa.

All right. Michael Moore, thanks so much for being with us. Appreciate you waking up for us.

[04:40:00] MOORE: Glad to be with you.

ROMANS: I will say, it wasn't -- I mean, when you looked at the rollout last night, it was so very presidential. I mean, it almost at odds with some of the controversy we've seen over the past couple of days I think. Wouldn't you agree?

BERMAN: No, absolutely. Judge Gorsuch is I think respected as a legal mind from both sides of the aisle. You know, it's not Gorsuch himself who is controversial. It's the nature of the pick, and the timing of the pick. And last year, Merrick Garland, because he was all of those things also.

After lawsuits and protests, and all the pushback over the self- declared travel ban from the White House, the White House now says it's no ban at all. Why is that? Next.

(COMMERCIAL BREAK)

BERMAN: This morning, the Trump administration is defending the rollout of its controversial travel and refugee ban which they now say is not a ban. More on that in a moment.

The new secretary of homeland security, John Kelly, insists that he and his staff were involved in crafting the measure.

[04:45:03] But CNN has learned the department only got to see the final draft of the ban the day it was signed. I want to bring in the never sleeping CNN politics reporter Dan Merica

live from Washington.

You know, Dan, there are questions about who wrote this, whether the departments had oversight over it. And now, there are questions over what we should call it.

DAN MERICA, CNN POLITICS REPORTER: Yes, it seems like Kelly is being a good soldier saying he's aware, was briefed on it, and that may be true. But even members of Donald Trump's own party, those people on Capitol Hill are saying that this is a bungled rollout that caused chaos at the airports. Now, this has all comes in as you mentioned, as the White House is arguing that the ban isn't really a ban.

Let's listen to what Sean Spicer had to say at yesterday's press briefing.

(BEGIN VIDEO CLIP)

REPORTER: You say it's not a ban. This was President Trump's tweet yesterday, "If the ban were announced with a one-week notice, the bad were rush in to our country during that week." He says it's a ban.

SEAN SPICER, WHITE HOUSE PRESS SECRETARY: He's using the words that the media is using. But at the end of the day, it can't -- hold on, hold on, hold on. It can't be, it can't be --

REPORTER: Those are his words.

SPICER: Jonathan, thanks, I'll let Kristen talk. It can't be a ban if you're letting 1 million people in. If 325,000 people from another country can't come in, that is by nature not a ban. It is extreme vetting.

REPORTER: I understand your point. But the president itself called it a ban.

SPICER: I understand.

REPORTER: Are you confused or --

SPICER: No, I'm not confused. I think the words that are being used to describe it derive from what the media is calling it. He's been very clear that it's extreme vetting.

(END VIDEO CLIP)

MERICA: What's remarkable about this is not only did Donald Trump tweet it calling it a ban. But Sean Spicer himself, at events and interviews have called it a ban. So their quibbling over this word, trying to argue with semantics when this rollout, as Republicans just said did not go smoothly.

We're going to see Donald Trump at 11:30, at a Supreme Court event at the White House. One place we won't see him will be Milwaukee, where he was supposed to attend and go to an event at the Harley-Davidson museum and facility there in Milwaukee.

Harley-Davidson said he was never supposed to come. But what's worth noting there were protests planned in Milwaukee that one White House official says led to the cancellation of the event.

BERMAN: No, and progressives are pointing to this as sort of the fruits of their labor with the protests over the last 12 days they say they sort of scared president off. I'm sure the truth lies somewhere, somewhere in the middle.

Dan Merica, great to have you. Thanks so much.

ROMANS: All right. President Trump hosting pharmaceutical executives to the White House, an industry he's ridiculed in the past for high drug prices. But these CEOs came prepared. Trump asked them to go around the room, introduce themselves in front of the press.

Each of them stated how many U.S. employees they have, how many they're hiring in the U.S., how long a history their company has in the U.S. Call it a cheat sheet for future CEO visits. Also, you got to mention the word "manufacturing", say manufacturing as much as you can.

The president laid out a challenge that will be difficult for this industry to meet though.

(BEGIN VIDEO CLIP)

TRUMP: You have to get your companies back here. We have to made products back. We're going to get rid of a tremendous number of regulations. I know you have some problems where you cannot even think about opening up new plants. You can't get approval for the plant. And then you can't get approval to make the drug. Other than that, you're doing fantastic.

(LAUGHTER)

(END VIDEO CLIP)

ROMANS: The amount the U.S. spends on importing drugs has more than doubled over the past ten years. About 40 percent of all of the drugs Americans take are made outside of the U.S. Same with half of all medical devices, and 80 percent of the companies who manufacture the pharmaceutical ingredients are located in other countries.

So, you would think that would draw the ire of the president. But these stocks popped a little bit yesterday, in an overall down market, the longest losing streak for the S&P 500 since the election. But those stocks popped. And here's why -- the president is he wants to make it easier for them to research and develop and find new drugs. So, they're looking for a lower barrier.

BERMAN: He also did not say that he wants the government negotiating directly with Medicare or drug companies on drug prices, something that he has said before. His language has been imprecise where the language matters. Republicans have been against it in the past. He didn't say he was against it yesterday, but it's not something he discussed. So, that was interesting to see.

ROMANS: All right. Democrats going to new length to prevent confirmation votes for two of President Trump's cabinet nominees. We'll tell you how.

(COMMERCIAL BREAK)

[04:53:35] ROMANS: All right. Breaking overnight -- 19 men with suspected links to ISIS arrested in anti-terror raids in Germany, 16 of the arrests coming in the southwest region of that country. Those raids targeted 54 mosques, businesses and homes in Berlin. Three people were arrested suspected of planning to travel to Iraq and Syria to participate in ISIS training camps. Others were said to be in various stages of plotting attacks.

BERMAN: This morning, Democrats are blocking two of President Trump's key cabinet picks. And Republicans don't like it one bit. Democrats refused to show up for Finance Committee votes for Tom Price and Steve Mnuchin, the nominees for Health and Human Services and Treasury. The committee chair, Orrin Hatch, described this tactic as pathetic and amazingly stupid. And he called the Democrats involved idiots. You get the sense he didn't like what was going on.

The rules require at least one Democrat to be present for a committee to move forward. This means if it doesn't get through committee, that the president might have to resort to a recess appointment so the nominees can serve without Senate approval. That's a ways down the line. But Democrats are trying to muck up the process as much as they can.

ROMANS: Senator Jeff Sessions' nomination for attorney general has been slowed by Democrats. They used a procedural move to delay Tuesday's vote until later today. Sessions is coming under increased scrutiny in the wake of President Trump's highly charged travel and refugee ban and is denying Democratic accusations he may have had a role in crafting it.

[04:55:05] Also today, the full Senate is scheduled to take up the nomination of Secretary Rex Tillerson. He is expected to be narrowly confirmed.

BERMAN: Betsy DeVos, the president's pick for education secretary, narrowly approved by the Senate with oversight over the Education Department. The 12-11 vote along party lines now means it will go to the full Senate.

There are some issues now surrounding the nominee. There are accusations of plagiarism that have surfaced. A questionnaire that DeVos filed, her response about bullying of LGBT students in Title 9 complaints seeming very, very similar on word for word from other sources, in one case from an Obama official in the civil rights division of the Justice Department. And another case, the language appears very similar from the education department's website. It's not clear whether Betsy DeVos herself or members of her staff wrote the answers. The White House calls any questions about plagiarism against DeVos character assassination. ROMANS: All right. The president's travel and refugee brand has

plenty of opposition within the State Department. A memo of dissent opposing that executive order -- get this -- has now been signed by 900 diplomats. They're using the department's so-called Dissent Channel.

It's a messaging system that allows employees to offer constructive criticism of foreign policy and they're protected from retaliation. When White House Press Secretary Sean Spicer was asked about that memo he called on the 900 diplomats to either get with the program or go. It was fewer than 900 diplomats, but a lot of diplomats signing on to that.

Let's get a check on CNN Money Stream this morning. File this one on what goes up because the S&P 500 is down four days in a row now.

BERMAN: That's a very cool file.

ROMANS: It is. The longest slump since President Trump was elected. A quick check of stocks right now. Dow futures are higher. Global markets are rising. Gold prices are higher for a second day.

Why are we looking at gold? Because yesterday, there was this rush to safety, John, into gold, into bonds, into high-yielding dividend stocks.

There was a crash, though, for Under Armour shares. Look at this, down 25 percent. Look at that chart. Oh my goodness. That was the biggest one-day loss ever. Sales and profits badly missing forecast.

The company is lowering its guidance for the rest of the year. Plus, the chief financial officer is stepping down for personal reasons. It spent big money signing top athletes like Steph Curry and Tom Brady, even Tom Brady's good looks could not rub off.

BERMAN: I find that hard to believe. It must have been in spite of Tom Brady.

ROMANS: I know, I'm sorry I couldn't show you a picture of beautiful Tom Brady.

BERMAN: I'm sorry you couldn't show us a picture of Tom Brady.

ROMANS: Next time we do, there will be a picture of Tom Brady.

A pop in Apple shares after the sales slumped over the past three quarters is finally over. That's thanks to a huge rebound in iPhone sales. Revenue for the device hit $54 billion, nearly doubling the total from the previous quarter.

The CEO, Tim Cook, says there's very strong demand for the iPhone 7. Plus, that's the larger model.

In other Tim Cook Apple news, Cook tells "The Wall Street Journal", Apple is considering legal action against the president's travel ban. He didn't provide details on how the company would approach that but says the travel ban has affected hundreds of Apple employees. Apple has not responded to our requests for comments about those remarks.

And, finally, teasers for Super Bowl ads are starting to hit the Internet ahead of the big game this Sunday.

BERMAN: There's a big game Sunday?

ROMANS: Yes, there is a little game. This one from Budweiser has some asking if the company is making a political statement.

(BEGIN VIDEO CLIP)

UNIDENTIFIED MALE: You don't look like you're from around here.

(INAUDIBLE)

UNIDENTIFIED MALE: I want to brew beer.

UNIDENTIFIED MALE: Welcome to America.

(END VIDEO CLIP)

ROMANS: It features the story of the beer's founder, Adolphus Busch as he immigrates from Germany to the United States in 1800s. He sails through storms, faces discrimination because of his German heritage, and eventually arrives in St. Louis, Missouri, where he would create a brewing giant.

The advertisement comes amid widespread protest over president Trump's controversial travel ban. But Budweiser insists the timing is a total coincidence, says the ad was created well before the travel ban. It's meant to stress entrepreneurial spirit and American dream with a big, big does of immigration.

BERMAN: It also just makes me thirsty. I'm sure there's deeper meaning in there and I'm like oh.

ROMANS: Could someone get John Berman a beer?

BERMAN: I was like, is it too early? It's 4:59. When is the right time?

ROMANS: It's 5:00 somewhere.

BERMAN: It's 5:00 a.m. somewhere.

EARLY START continues right now.

(MUSIC)

ROMANS: The political showdown over the still empty Supreme Court seat reigniting this morning. Democrats vowing a fight as President Trump reveals his nominee.

BERMAN: And in the face of growing criticism, the White House defending the rollout of the travel ban. But now, they don't even want to call it a ban. What's going on here? Good morning, everyone. Welcome to EARLY START. I'm John Berman.

ROMANS: And I'm Christine Romans. It is Wednesday, the very first day of February. It is 5:00 a.m. in the East.