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Scalia: Do Black Students Belong In Elite Schools?; Investigators Focus On Marriage Of San Bernardino Terrorists; Will Trump's Muslim Ban Cost GOP At The Polls? Aired 7:30-8a ET

Aired December 10, 2015 - 07:30   ET

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

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[07:30:11] CHRIS CUOMO, CNN ANCHOR: Supreme Court Justice Antonin Scalia taking some serious heat after appearing to suggest African- American students would do better at less challenging colleges. These comments come during a case about affirmative action, which Scalia has long said is unconstitutional.

Let's ask CNN senior legal analyst, Jeffrey Toobin. I will deny my own premise he was not bringing something up. It was made in a brief and he was asking people about it. Give us context.

JEFFREY TOOBIN, CNN SENIOR LEGAL ANALYST: There's a theory called mismatch which says affirmative action doesn't work, because if you look at the statistics, according to this theory, African-Americans who are admitted to less selective colleges, actually go on to more successful career than the African-Americans who go to the flagship schools.

CUOMO: But they used data looking at the African-American scientists and where they came from, higher achievers, and professionally wound up coming from different sets of colleges?

TOOBIN: Correct. Let me say at the outset that is a highly disputed theory. It involves statistics that is refuted by other people, who look at the similar statistics. I think in fairness to Justice Scalia, who generally, I can't say I'm a big fan of, he was not just generally making a point that black people can't succeed at high profile schools, he was arguing based on this evidence.

CUOMO: Did he own it too much?

TOOBIN: Justice Scalia has been kind of the get off my lawn justice. He's expressed himself in colorful, sometimes blunt, and some people think offensive ways. He may put this argument some that style of expression. But he was certainly making a point about evidence that was before the court. He wasn't just sort of bringing something in that was rude and of no relevance.

CUOMO: You've got another book that's relevant which is one that Justice Sotomayor wrote where she said it made affirmative action made a difference in her own life. What do you think happens here? I mean, the presumption is that affirmative action is dead? [07:35:06] TOOBIN: Well, you know, I don't think it's necessarily the case. You know, as it so often the case of the current Supreme Court, there are four justices whose views are very clear opposed to affirmative action. There are four justices, all four Democratic appointees very much in favor of affirmative action.

Justice Kagan is recused from this case. So there are only three justices in the pro-affirmative action side of this case. As always, or often as the case, it comes down to how Justice Kennedy will come out, and he seemed to be looking for some third way.

CUOMO: He threw, it seemed like a curveball. Help me with this, he said, didn't they remand this? Didn't they send this down for more fact finding, I feel like I'm hearing the same case?

TOOBIN: What's very bizarre about this case in general, Miss Fisher, who is the plaintiff, you know, the Supreme Court hears very few cases. They hear even fewer cases twice. This is one of those cases where they're hearing the exact same case twice. And Justice Kennedy said maybe we should hear it for a third time after we get more evidence. They obviously are struggling with this case.

CUOMO: What's the case going to turn on? What's the constitutional question?

TOOBIN: Well, the key question here is, the court has said that we don't want to see distinctions drawn on the basis of race, under almost any circumstance. So the question in this case, is, is the value of affirmative action, diversity in higher education, so gray that we will make an exception to our general rule of not allowing the government to consider race in any decision?

Is affirmative action bringing something both to the individuals who are the beneficiaries, and the community as a whole that is worth going outside the normal rule, which is we don't allow the government to consider race at all. And that's what's they are struggling on.

CUOMO: Race is not supposed to be an issue, but that was always in the context of something to count against you.

TOOBIN: Correct.

CUOMO: The question is if it's the same analysis is something that could help.

TOOBIN: They have now said that the analysis is the same. They have basically said we don't believe race should be considered as a plus or a minus in almost any other circumstance. The question is, is affirmative action in education one of those very few circumstances where we will allow some consideration?

CUOMO: What's a chance they get a decision versus sending it back down?

TOOBIN: I think judging from the way Justice Kennedy was talking we will not get a categorical decision about all of the affirmative action in this case. It will probably be a small incremental step one way or another. This case does not look like the blockbuster that it appeared to be to some people.

CUOMO: Jeffrey Toobin, thank you very much. What do you think, affirmative action using race? Does it help? Use the #newdaycnn or post your comment on Facebook.com/newday -- Mich.

MICHAELA PEREIRA, CNN ANCHOR: Some serious questions over the vetting of the San Bernardino shooters. Why was the wife not questioned about her believes in jihad before she came to the U.S.? We're going to have some members of Congress next. Stay with us.

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[07:42:15]

ALISYN CAMEROTA, CNN ANCHOR: The marriage between the San Bernardino terrorists may have been a sham designed for terrorism. How did the wife fool officials into letting her into the U.S., given her plan for terror?

Let's bring in Republican Congresswoman Martha McSally. She's a member of the House Homeland Security and Armed Services Committee. She is also a retired Air Force colonel and first female combat fighter pilot. Congresswoman, great to have you here on NEW DAY with us.

So, we now understand from authorities that these two were radicalized years earlier than previously thought and it sure looks like there were some warning signs that were missed. What do you think happened?

REPRESENTATIVE MARTHA MCSALLY (R), ARIZONA: Well, as part of my duties on homeland security I was appointed to a bipartisan task force in March and we spent six months doing a real deep dive into combatting ISIS and the flow of foreign fighters and homegrown extremism.

There are many vulnerabilities we have. We have 32 findings and 50 recommendations and this is an example of the threat that we're seeing metastasizing, where individuals are getting radicalized, American citizens at home and others in foreign countries.

We've got 30,000 that have traveled from 100 countries to Iraq and Syria. And others like the case of the wife here, who slipped under the radar and didn't meet authority's attention to even really be a concern.

So we've got challenges and loopholes with our visa waiver program which we addressed in our vote a couple days and this certainly is identifying another one. The investigation is still ongoing.

But we've got this metastasizing threat globally and in our homeland that is a generational fight that we need a comprehensive strategy in order to attack.

CAMEROTA: Given what happened in this case, would you say it's time to change the process for the fiance visa program, particularly if women are coming in from Middle Eastern countries, should they be asked more pointed questions about their thoughts on extremism?

MCSALLY: Well, I think, again, we need a comprehensive approach to address all of our vulnerabilities. This is certainly one of them. But just doing an in-person interview isn't necessarily going to highlight that somebody has been radicalized.

Of course, if all they're going to do is say they're not radicalized, that's not going to help. Experts have shown that even our most trained professionals can't detect deception all the time.

Sometimes, they're able to slip through it like a 50/50 rate that they are able to even detect deception. I've been advocating technologies that we actually have. Some of them have been developed in my community, University of Arizona, that actually helps detect deception.

So if somebody is lying either in person or online, there are things that can help us flag it, but obviously we need greater intelligence.

[07:45:01]Our law enforcement is really tapped out trying to keep monitoring those that are becoming radicalized. We've got 250 Americans that have traveled over to Iraq and Syria.

There are 900 investigations in all 50 states at home. So, this is a significant challenge for them. But I think we need to look at all of the visa processes, and see how we can ensure that somebody isn't slipping through. And there's a variety of vulnerabilities there.

CAMEROTA: And before we get to what defense secretary said about the war on is, one more question about what happened in San Bernardino. What about this next door neighbor, this Enrique Marquez, who bought the AR-15s for this couple? They now believe he's radicalized in 2011. Why hasn't he been charged with anything?

MCSALLY: Again, the investigation is ongoing. We're getting a classified briefing this afternoon to get an update. These are the types of questions that we'll certainly be asking. It's always easier to look back and get a footprint especially the electronic footprint to see what's going on.

Again, this brings the point they're moving at the speed of broadband and we're moving at the speed of bureaucracy. If there are individuals that we now have an electronic footprint that they were radicalized, why didn't we know about it at the time?

Why weren't they reported to law enforcement? Often time, it's the first line of defense, the neighbors, friends, families, the Facebook friends, coaches, religious leaders, teachers, this gets back to if you see something, say something because really this threat is happening all over the communities.

Not to live in fear, but to be vigilant that we can't just walk by and think that somebody else is going to report that. We've got to keep our eyes open. Not turning on each other, but making sure that we're keeping our country and community safe and the federal government needs to do much more.

CAMEROTA: Well, very quickly, Defense Secretary Ash Carter said yesterday that ISIS is not contained. You're a military woman. What more needs to be done?

MCSALLY: Of course, they're not contained. They declared their caliphate 17 months ago. We've had this Anemic attempt to hit them with pinprick strikes not using air power to unleash American power to actually destroy their command of control, their logistics, their resources, how they're gaining money from the black market oil.

We've had a two-hour briefing yesterday on the rules of engagement and command and control, which has validated my deep concerns and frustrations that this administration is -- worse than doing nothing is actually using military force in a way that's not effective because it adds to their narrative. It adds to their PR campaign, their propaganda, their recruitment.

So we've got to unleash American air power, update our command and control, update our rules of engagement, take out their resources, oil infrastructure, everything. In addition to the across-the-board strategy, they're in 19 different countries.

It's not just Iraq and Syria. This is in Libya that they're growing. This administration needs to call it what it is and give us a comprehensive strategy and we need to be all in to fight them.

CAMEROTA: Congresswoman McSally, thank you. Great to have you in NEW DAY. Let's get to Chris.

CUOMO: So if you're one of those when you hear what Donald Trump says, you kind of shake your head. You better watch this next segment because he has a growing base of followers and they have great reasons for why they buy into what Trump says. We're going to hear from them.

We're also going to ask Iowa's governor how the latest controversy is affecting the first in the nation voting state. Stay with us.

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[07:52:50]

PEREIRA: Major League Baseball, attempting to make the safer for fan, recommending that every team extend that netting behind home plate. Andy Scholes has more in this morning's "Bleacher Report" focusing on fan safety here.

(SPORTS)

CUOMO: Andy, thank you very much. Appreciate it. So Donald Trump isn't just refusing to back off his proposed Muslim ban. He claims the Muslims he knows appreciate what he's doing. A lot of Republicans don't appreciate it.

But it is a conversation that needs to be had because the question is well, what are you going to do if you don't like Donald Trump's ideas? Do you have anything better? And what does this mean in the all- important Iowa caucus?

Let's bring in Terry Branstad. He is the Republican governor from Iowa, the first in the nation voting state. Gov, it's great to have you here on NEW DAY.

GOVERNOR TERRY BRANSTAD (R), IOWA: It's great to be with you. Thank you very much.

CUOMO: Let's get what you think about the concept out of the way and then we'll get to the implications of it. When you hear the idea of banning a faith, even in qualified, even in temporary manner, what do you make of it?

BRANSTAD: I disagree with that. I don't think people should be banned just because of their religion and I think Iowans reject that kind of an idea.

[07:55:09]I have concerns about our security. We're concerned the administration hasn't taken the threat seriously enough. We're finding out more and more out about this and even the California killers had been radicalized years before.

So we do need new policies that are stricter and do a better job screening so that we take this serious -- this threat seriously, but just banning a whole religion, that is not the right answer.

CUOMO: But your Iowans will come to you and say we're afraid, Governor. And when these people come in from these countries, we can't vet them. Look what just happened. I need to be safe from Muslims. What do you say?

BRANSTAD: Well, what we're saying is radical Muslims that are committed to jihad that want to kill us, yes. But there are a lot of Muslims that do not share that ideology. So we need to separate the difference between the radical jihadist and the other Muslim community and that is an important distinction to make.

CUOMO: But they will say you can't.

BRANSTAD: We've got to do a better job. I don't think the administration is taking the threat seriously. I don't think our efforts against ISIL have been effective and we need to change those policies.

We heard earlier from a congresswoman about the problems and the information they are getting as governors. We are concerned that we don't want people coming in.

Well, the federal government will not even tell us who they are or who they are being placed with. How can we protect the safety of our citizens if we don't have that information? We need to work together.

CUOMO: What is the reason --

BRANSTAD: I don't know, they're saying we have to protect their secrecy. Protecting their secrecy against the safety of our citizens is not fair, not right, not balanced. And this administration -- you know, I look at what Franklin Roosevelt did after Pearl Harbor, a day that will live in infamy.

We still remember that. George W. Bush came here to New York and united the country after the bombing of the planes that went into the twin towers.

The president instead goes on television and advocates gun control dividing the country as opposed to coming up with a policy that brings us together and meets the external threat we have from ISIS, Islamic militants who are committed to jihad and want to kill us.

CUOMO: So if you are saying you need a leader to unite in times of crisis, how do you explain Donald Trump leading in Iowa and a presumptive favorite there?

BRANSTAD: Well, that is today. I think it will change between now and February 1st. I have a lot of confidence in the Iowa voters in making that decision. But I do think the fact that Donald Trump has been so forthright and so un --

CUOMO: Filtered?

BRANSTAD: Unlike the kind of leadership we have today so people are saying it's a contrast to that, but I don't think that is the right contrast. I think we need someone strong but also thoughtful that's going to strengthen and unite the country.

CUOMO: Do you think despite all the polls that Donald Trump might not win Iowa?

BRANSTAD: I do.

CUOMO: This is from your gut or what you're hearing out?

BRANSTAD: He's already fallen behind Cruz in Iowa, a little bit.

CUOMO: One poll, two polls, but not all the polls.

BRANSTAD: And the other thing is all about turn out, who is going to show up? Several years ago the lead changed hands several times and the person who ended up winning wasn't ahead until the last week. So let's look again at the end of January. February 1st is the caucus and a lot of people will make up their minds at the end.

I haven't decided who I'm going to vote for in the caucus yet myself. I'm undecided. I'm interested in a strong leader, but somebody that shares our values and somebody that will restore respect for America and get the financial house in order for this nation and restore renewable field standard, and things that are important to the economy in my state.

CUOMO: So you are not sure who your vote is for, but you know who it is not for.

BRANSTAD: At this point I don't think that Donald Trump represents what we want for the kind of leadership. I know that a lot of people are excited and enthused about the contrast to the lack of leadership we have today.

But I think at the end of the day people are going to decide in a thoughtful way as to who they wanted to lead this nation, And I don't think that he's the one at this point in light of what he just recently said about Muslims.

CUOMO: We'll see how it plays out. Governor, thank you for being with us. See you at the caucuses. We have a lot of news the morning. Let's get right to it.

Good morning. Welcome to your NEW DAY. It is Thursday, December 10, 8:00 in the east. We have a new national poll painting a very clear picture of the Republican race.