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Legal View with Ashleigh Banfield

Obama Taps Merrick Garland to Succeed Scalia. Aired 12-12:30p ET

Aired March 16, 2016 - 12:00   ET

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

[12:00:00] MARY KATHARINE HAM, SENIOR WRITER, "THE FEDERALIST": It was his first good night. And he does not have very many delegates. I think Ted Cruz safely makes the argument that if it's going to be a one-on-one, that he should be the guy, even if the upcoming calendar is not terribly demographically friendly to him, which it's not.

This also brings up another interesting point on the Supreme Court, which is, Republicans are looking down the barrel of a possible Hillary Clinton presidency or a likely nominee of Donald Trump, who's a bit of a wildcard when it comes to judicial nominees. Ted Cruz would be a very safe choice and you would know that he would pick somebody safely right of center and a constitutionalist. Donald Trump, we don't know. Justice Omarosa (ph). He's put out a couple names. But it would be hard to know and to trust that really on the right for activists.

JOHN BERMAN, CNN ANCHOR: Barry, we only have time for a yes or no question here so I'm going to ask you outright, is Donald Trump, are you as the Trump campaign glad to have two people remaining or would you rather have it be one on one? Give me an honest answer.

BARRY BENNETT (ph): I think one on one is fine. Either way is fine.

KATE BOLDUAN, CNN ANCHOR: Nonplused. Not plused. Not impressed.

BERMAN: Once again, nonplussed. Barry Bennett, not impressed.

BOLDUAN: Not impressed.

BENNETT: I do endorse Donald - or Ted Cruz for the Supreme Court, though.

BOLDUAN: There you go.

HAM: Maybe that's the deal.

BOLDUAN: I'm going to - we're going to - I'm going to create a Barry Bennett emoji, not impressed.

Guys, it's great to see you. Thank you so much for joining us for the abbreviated version of the Kate and John show. Thanks so much, guys.

BERMAN: "Legal View" with Ashleigh Banfield starts now.

ANNOUNCER: This is CNN breaking news.

ASHLEIGH BANFIELD, CNN ANCHOR: Hello, everyone. I'm Ashleigh Banfield. Welcome to LEGAL VIEW.

An aptly named show today because the breaking news is a name. A name that you'd better get used to hearing because after the presidential candidates, it's about to be the most talked about name in Washington. And that name is Merrick Garland. Take it in. He is a U.S. Court of Appeals judge in the Washington, D.C. Circuit. And President Obama has just announced that Merrick Garland is the man that he is putting forward to replace the late Supreme Court Justice Antonin Scalia.

Now, he is nowhere near that job yet. In fact, he has a hell of a ride ahead of him with a lot of obstacles to say the very least. And I say that because, as you know, any Supreme Court nominee has one big step before you get that chair, and it's the approval of the United States Senate. And the Senate right now is controlled by Republicans, whose leader swears up and down, even this morning, that no name put up by President Obama will even be considered at this juncture.

Here's the president and his nominee, Judge Merrick Garland, just a short time ago.

(BEGIN VIDEO CLIP)

JUDGE MERRICK GARLAND, SUPREME COURT NOMINEE: This is the greatest honor of my life, other than Lynn agreeing for marry me 28 years ago. It's also the greatest gift I've ever received, except, and there's another caveat, the birth of our daughters Jessie and Becky.

As my parents taught me by both words and deeds, a life of public service is as much a gift to the person who serves as it is to those he is serving. And for me there could be no higher public service than serving as a member of the United States Supreme Court.

Trust that justice will be done in our courts, without prejudice or partisanship, is what in a large part distinguishes this country from others. People must be confident that a judge's decisions are determined by the law and only the law. For a judge to be worthy of such trust, he or she must be faithful to the Constitution and to the statutes passed by the Congress. He or she must put aside his personal views or preferences and follow the law, not make it.

BARACK OBAMA, PRESIDENT OF THE UNITED STATES: I've select a nominee who is widely recognized, not only as one of America's sharpest legal minds, but someone who brings to his work a spirit of decency, modesty, integrity, evenhandedness, and excellence. These qualities, and his long commitment to public service, have earned him the respect and administration of leaders from both sides of the aisle. He will ultimately bring that same character to bear on the Supreme Court.

(END VIDEO CLIP)

BANFIELD: So those are the facts and that's the action and here's the crowd to talk about it. In Washington, D.C., CNN's Pamela Brown, at the White House, CNN's Michelle Kosinski standing by, Manu Raju is live on Capitol Hill, where the name "Merrick Garland" is no doubt buzzing through the halls and the offices at the U.S. Senate, and our top legal analyst who knows the judge personally, Jeffrey Toobin. First to you with the reporting, Pamela. One Republican senator said

last week that any Supreme Court nominee will, quote, "look like a pinata," meaning he's going to get the stuffing knocked out of him. So the big question I think a lot of people have right now, is President Obama setting Judge Garland up, knowingly so between them all - I mean there are no idiots here on - on the lawn - to fail?

[12:05:02] PAMELA BROWN, CNN JUSTICE CORRESPONDENT: You know, what I think the calculus here, Ashleigh, is that this was Garland's last chance to be on the high court. He's been considered a front-runner before, didn't get the spot, as we know. And so he really has nothing to lose here.

And, yes, you're right, Republican senators have said they are not going to hold a hearing, but I think what the president - what his calculus may be, well, if there's anyone they might hold a hearing for, it's going to be Merrick Garland. He's 63 years old, as we've been talking about, so that would be more palatable to Republicans rather than someone significantly younger, like a Sri Srinivasan. He's garnered support from across both sides of the aisle. We know Senator Hatch has come out and praised him.

So I think what the president - what his calculus is, is that if anyone has a chance it's Garland and that Garland really has nothing to lose here. And perhaps come November, during the lame duck, he would be someone Republicans would want to push through more readily if Hillary Clinton is elected. I think all of this factored in and that he wouldn't get as muddied up as the others, like a Sri Srinivasan, who has a bright future and many other chances to be on the high court.

Ashleigh.

BANFIELD: And is in his late 40s and a nice long, long career as well.

BROWN: Absolutely.

BANFIELD: Let me scoot over to the White House, if I can, where this announcement was just made moments ago. Our Michelle Kosinski watching it play out live.

So, Michelle, I want you to sort of dig deep into the optics of it all, if you would, because if this is politics playing out and this is sort of the sacrificial lamb of sorts, there sure seemed to be a lot of emotion on the part of Judge Garland when he took to the microphone.

MICHELLE KOSINSKI, CNN WHITE HOUSE CORRESPONDENT: : Yes. I mean that was unexpected from this person who spent, you know, nearly 20 years on the bench, somebody who's so respected in the world of law, to see that human side. I know that the White House really wanted to hammer that point home, that this is a person who is well liked, as well as well respected. That he has decency, as well as brilliance.

And you heard his voice crack several times, Merrick Garland's voice, when he was saying, you know, how much this nomination means to him. I don't think too many people were expecting that much emotion in the Rose Garden. It was certainly touching. And now it's interesting, after the fact, you see a lot of tweets going around out there saying that people feel sorry for him. That, you know, what is to be his fate now, now that he's kind of thrown to the wolves of politics after this very nice day in the Rose Garden.

So now we're hearing from Republicans. We heard from Senate Majority Leader Mitch McConnell shortly after the announcement, you know, that it is the president who's politicizing this. That's his take on this. That this should not even be a nomination right now. Republicans now are turning Democrats' words from the past against them, including Vice President Biden's. In fact they're calling it the "Biden rule" that he said years ago that this just shouldn't happen during the political season. That the nomination shouldn't happen.

So now it's Republicans' turn to take those words and really use them against the White House and against top Democrats who have been fighting so hard for this to, at the very least, make it to the hearing stage, which now looks extremely unlikely. So really now the back-and-forth begins with Merrick Garland left in the middle, lefting (ph) to sort of swaying in the wind there, but -

BANFIELD: Yes. And, guess what, I'm going to use your words - I'm going to use your words, the wolves of politics, because guess what I just got, Michelle Kosinski? I got the Republican National Committee's statement, their response to this. So if you would indulge me for a second, I just want to read.

"President Obama's decision to nominate a Supreme Court justice denies the American people a voice in this process. For more than 80 years, there has not been a nomination and confirmation of a Supreme Court justice in a presidential election year, and now is not the time to break with bipartisan practice."

Those words are carefully crafted, "practice" and "nomination" and "confirmation" in 40 years.

Manu Raju, jump in on this. This is the RNC, but you're starting to hear lots of whispers and even shouts in those halls right now about the fact that what we've heard will not change. There will not be, not only a hearing, there won't be a meeting.

MANU RAJU, CNN SENIOR POLITICAL REPORTER: That's right, Ashleigh, there won't even be a background check. I was talking to Senate Republicans who sit on the Senate Judiciary Committee. It's typically custom to have an FBI background check, where they look at the nominee's qualifications and make sure that, you know, they're - they haven't done anything wrong. That won't even happen now. John Cornyn, the number two Republican, said they won't even go through with that process because they don't want to make it look like they are acting - trying to take this nomination forward.

The real concern for Republicans is that if this nominee was given a confirmation hearing, presumably they'd have a chance to shine. They would be able to move forward in the process and there would be a lot of pressure to actually give them a confirmation vote. so they'd rather stop it right at the door.

Now, this - now Judge Merrick Garland, of course, as we've talked about, was confirmed in 1997. At that time, seven Republican senators who are still sitting in the Senate, serving in the Senate right now, those seven senators actually voted for Merrick Garland, including Senator Orrin Hatch, who had this to say about him, talking about Merrick Garland in 1997.

[12:10:18] (BEGIN VIDEO CLIP)

SEN. ORRIN HATCH (R), UTAH: Based solely on his qualifications, I support the nomination of Mr. Garland, and I encourage my colleagues to do the same. To my knowledge, no one, absolutely no one disputes the following - Merrick Garland is highly qualified to sit on the D.C. Circuit. His intelligence and his scholarship cannot be questioned.

(END VIDEO CLIP)

RAJU: Now, Hatch has said that things have changed now. He actually just put out a statement saying that - really agreeing with Senator McConnell, the Senate majority leader, and Chuck Grassley, the judiciary chairman, saying that, "I think highly of Judge Garland, but his nomination doesn't in any way change current circumstances." And those circumstances being that the Republicans just will not consider a nominee, no matter who he is.

Now some Republicans in tough re-election races will feel a lot of pressure. Mark Kirk, the Illinois Republicans, who's in a tough race, actually put out a statement saying that he wants to consider a nomination. He has one of the toughest races in the country. But he is in the minority.

I just talked to Kelly Ayotte, a New Hampshire senator, also in a tough race. She said she's willing to meet with Judge Garland, but she does not think that the confirmation process should go forward. So - so you're hearing some - a little bit of division within the Republican ranks, but for the most part by and large Republicans are united behind the position to not move forward with the nomination, confirmation process. They're going to take this to voters and hope that Republicans reward them with a Senate Republican majority that could prevent a liberal justice from being confirmed, Ashleigh.

BANFIELD: Yes. And it's always interesting to see each party tossing in the other party's positive words about, you know, the nominee. And, listen, it's the same with the Biden rule, they're tossing the Biden rule in. The Republicans are saying it's Biden him who said, you know, getting so close to a convention isn't the right thing to do. I'm paraphrasing.

Manu, stand by. I want to just read a little bit more of the RNC's statement. I was skipping through it quickly.

"President Obama is doing a disservice to voter with this attempt to tip the balance of the court with a liberal justice in the 11th hour of his presidency. We will not stand by idly while President Obama attempts to installed a liberal majority on the court to further undermine our Constitution and protect his lawless actions."

So that's a lot to digest all at once, but I want to bring in Jeffrey Toobin on that because there's a couple of questions I have about that last part of the statement. The president's lawless actions, that's - that's a tough one to take in. The notion that he's installing a liberal justice. You know this particular judge. And that he's doing a disservice to the voters with a liberal majority. So, go at it. Have a - there's a lot to take in there and attack, yes.

JEFFREY TOOBIN, CNN SENIOR LEGAL ANALYST: There's - there's a lot - a lot to unpack there. Well, certainly the RNC is correct, that this seat is an unusually important vacancy on the Supreme Court because with Justice Scalia's death, there are now four Republican appointees and four Democratic appointees. And by and large they split along those lines in controversial cases. So the stakes in this seat are enormous.

BANFIELD: Is the RNC right about undermining the Constitution and being lawless?

TOOBIN: Well, that -

BANFIELD: Because as I understand it, this is a bipartisan practice, it's 40 years old, it's happened before, people have done this before. There's been nominations. There's been nominations and confirmations. It's all - it's all something you can argue.

TOOBIN: Right. We elect presidents to four-year terms in the United States and they serve four years. They don't stop becoming president in their fourth year. And presidents have exercised this power.

You know, one thing that you talk about parsing that statement. They say that there has been no nomination and confirmation in the - in the last year of a president, but there has been a confirmation. Anthon Kennedy -

BANFIELD: Yes.

TOOBIN: Was confirmed in 1998.

BANFIELD: In - it was Reagan in an election year.

TOOBIN: In 19 - in the year that president -

BANFIELD: Yes. Reagan - Reagan was running.

TOOBIN: That - well, that George W. Bush was - George H.W. Bush was running to succeed him, that's right.

BANFIELD: Excuse me. Right, it was Reagan's last year.

TOOBIN: Right. Right.

BANFIELD: Beg your pardon.

TOOBIN: So, you know, this is not so unprecedented. This is really about political power. It's about the Republicans saying, we are not giving Barack Obama this seat and it's the Democrats trying to impose a political cost on the vulnerable Republican senators who go along with that view, the Kelly Ayottes, the Mark Kirks, who will have to answer from voters the question, why won't you give this guy a fair shake? And the one thing you can say about Merrick Garland without qualification is that he is a very qualified candidate.

BANFIELD: Qualified. Yes.

TOOBIN: You know, 18 years on the D.C. Circuit.

BANFIELD: Unilaterally everyone is saying qualified. Yes.

TOOBIN: That that issue is off the table. So the defense for the Republicans' action has to be entirely one about the process.

BANFIELD: Yes.

TOOBIN: Not about the individual.

BANFIELD: I have to leave it there, but, Jeff Toobin, thank you for that. And also Michelle Kosinski, thank you, Manu Raju, standing by as well, and also, as always, Pamela Brown, appreciate all of your quick input on this breaking story.

[12:15:11] For Merrick Garland, what we just saw at the White House was the very, very easy part of all of this. His Senate confirmation fight, if he even gets to the process, well, that's going to be a whole other kettle of fish. When we come back, I'll be joined by one senator to say he is eager to consider Judge Garland's nomination. And guess what? He is not a Democrat.

(COMMERCIAL BREAK)

(BEGIN VIDEO CLIP)

SEN. MITCH MCCONNELL (R), MAJORITY LEADER: The next justice could fundamentally alter the direction of the Supreme Court and have a profound impact on our country. So, of course, of course, the American people should have a stay in the court's direction. It is a president's constitutional right to nominate a Supreme Court justice and it is the Senate's constitutional right to act as a check on a president and withhold its consent.

(END VIDEO CLIP)

BANFIELD: Our breaking news, President Obama announcing just moments ago the name of a federal appellate judge, Merrick Garland, as his choice to be the next Supreme Court justice. The president's nomination faces an approval process, though. It begins with a Senate committee that is resistant, to say the least, to take a pick from him in this election year.

[12:20:19] Senator Angus King is an independent from Maine and he's kind enough to join me live now from Capitol Hill. Senator, thank you so much for taking the time. I'm sure you're

digesting his particular pick, his background, his merits, his qualifications, and then, of course, the politics in the place where you're standing. Where do you see this going?

SEN. ANGUS KING (I), MAINE: Well, I'm starting just where you said, which is to try to digest the background, the temperament, the qualities of intellect and judicial knowledge of Judge Garland, who I don't really know much about. Frankly, I think that's the job of all of us around here for the next few weeks.

I agree with Mitch McConnell, it's the president's constitution - he said right, I believe obligation to nominate a justice as the - of the Supreme Court and I think it's our obligation to give it due consideration. Nobody has to tell anybody how they should vote, but I believe we should have a hearing, we should have discussion, we should have debate. Let the American people see what Justice Garland is like. Have him - put him through hearings, ask him tough questions, and then we should make a decision. That's the way the process is supposed to work.

BANFIELD: So - so, Senator - so then what you're saying to me, and I want to hear it in your words, that that Mitch McConnell is wrong and his colleges on the Senate Judiciary Committee who are Republican and are refusing even so much as an office meeting in your building with this candidate, they are wrong not to give him a hearing, is that what you're saying?

KING: Yes, of course they're wrong. I mean the Constitution says the president nominates by the - with the advice and consent of the Senate. To just say, we're not even going to talk to this person, we're not going to meet with him, I just think is - just doesn't make any sense and I think it's a violation of our obligation.

BANFIELD: What about - what about the four decades of tradition? And - and I understand that argument wholeheartedly, but I also understand there have been four decades of tradition where there hasn't been a Supreme Court nominee both nominated and approved in the same year during an election year where politics are hot and frustrating and voters may be - you know, they may have their attention elsewhere?

KING: Well - well, here's the problem with that argument. The president of the United States is elected for four yours. The Constitution says four years. It doesn't say three years and one month or three years and two months. The president is the president. And Mitch McConnell says the people should speak. They spoke. They elected this president twice. He was elected for a four-year term and he's supposed to nominate. He has an obligation to nominate a member of the Supreme Court when there is an opening. I think something like six out of -

BANFIELD: Sir, with all due respect, I have a copy of the Constitution on my desk, and I - and I checked it again right before my interview with you. There's nothing in there about the tradition. Constitution, yes. Advise and consent, that's your job. But the tradition has been that politics are ugly and that that final year should be sacrosanct. And you disagree?

KING: Well, I believe - as I recall, over the last 100 years, six out of eight nominees that have been put forward for the Supreme Court during a presidential election year have been confirmed. So, you know, you can define tradition as 10 years, 20 years , 30 years. I - you know, I wasn't here then. I just go by what the Constitution says. I think our job is to consider the nominee.

Nobody says that Mitch McConnell or Orrin Hatch or anybody else has to vote for this nominee. But to simply say, I'm not even going to meet with him, we're not going to have hearings, we're not going to get - let the American people become acquainted with this nominee, I just - I just - I don't get that, frankly. I don't understand that impulse to just slam the door. I think that's just not consist with what our - our job here is.

BANFIELD: Senator Angus King, always a pleasure to speak with you. Thank you for taking the time.

KING: Thank you.

BANFIELD: And coming up after the break, we are back to the presidential race because it's all tied into the politics. Sure enough, it is now a different race than it was, oh, I don't know, 12 hours ago or so before five states were finished off with their results in these primaries. We're going to show you who won what and where and what it all means for the road ahead for all those folks who made it on to the road ahead.

(COMMERCIAL BREAK)

[12:28:38] (BEGIN VIDEO CLIP)

WOLF BLITZER, CNN ANCHOR: A huge win we project for Donald Trump in Florida.

DONALD TRUMP (R), PRESIDENTIAL CANDIDATE: We've got a long way to go, but I think at some point it's going to get done.

DANA BASH, CNN CHIEF POLITICAL CORRESPONDENT: There were two Florida Republican titans. Neither of them won the Florida primary.

SEN. MARCO RUBIO (R), FORMER PRESIDENTIAL CANDIDATE: While this may not have been the year for a hopeful and optimistic message about our future, I still remain hopeful and optimistic about America.

SEN. TED CRUZ (R), PRESIDENTIAL CANDIDATE: To those who supported Marco, who worked so hard, we welcome you with open arms.

BLITZER: CNN projects that John Kasich is the winner of the Ohio Republican presidential primary.

GOV. JOHN KASICH (R), PRESIDENTIAL CANDIDATE: I have to thank the people of the great state of Ohio. I love you. That's all I can tell you. I love you.

DAVID AXELROD: He has to prove that he can win beyond his home state.

BLITZER: Hillary Clinton wins Ohio.

A big win for Hillary Clinton in Florida.

AXELROD: Bernie Sanders, he invested tremendous resources in these races.

SEN. BERNIE SANDERS (D), PRESIDENTIAL CANDIDATE: We have defied all expectations.

AXELROD: She comes out on top.

HILLARY CLINTON (D), PRESIDENTIAL CANDIDATE: We are moving closer to securing the Democratic Party nomination.

(END VIDEO CLIP)

BANFIELD: They don't call it Super Tuesday for nothing, even the third time around. And now the two top candidates in both parties are certainly moving ahead to the next contest stronger than ever before.

For the Democrats, you saw her, it was Hillary Clinton now way past Bernie Sanders with 1,568 delegates under her total after wins in Ohio, in Illinois, in Florida, and in North Carolina. I'll get to Missouri in a moment. Bernie Sanders, 797 delegates.

[12:30:13] On the Republican side of the race, another huge