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Supreme Battle Emerges Over High Court Nominee; George W. Bush to Campaign in S.C. with Jeb. Aired 7-7:30a ET

Aired February 15, 2016 - 07:00   ET

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

(BEGIN VIDEOTAPE)

HILLARY CLINTON (D), PRESIDENTIAL CANDIDATE: It is outrageous that Republicans have already pledged to block any replacement.

[07:00:08] DONALD TRUMP (R), PRESIDENTIAL CANDIDATE: You are the single biggest liar.

SEN. TED CRUZ (R-TX), PRESIDENTIAL CANDIDATE: He would not rescind President Obama's illegal executive amnesty on his first day in office.

SEN. MARCO RUBIO (R-FL), PRESIDENTIAL CANDIDATE: I don't know how he knows what I said on Univision, because he doesn't speak Spanish.

CRUZ: (SPEAKING SPANISH) In espanol, you get it?

GEORGE W. BUSH, FORMER PRESIDENT OF THE UNITED STATES: Experience and judgment count in the Oval Office.

JEB BUSH (R), PRESIDENTIAL CANDIDATE: I'm proud of my Dad. I'm proud of my brother. I'm proud of being a Bush.

G. BUSH: I think he would be a great president.

J. BUSH: This is the right time. People are watching.

(END VIDEOTAPE)

ANNOUNCER: This is NEW DAY with Chris Cuomo, Alisyn Camerota and Michaela Pereira.

CHRIS CUOMO, CNN ANCHOR: Good morning. Welcome to your NEW DAY. Alisyn and Mick are off. Brooke Baldwin and John Berman here this morning.

So the big news: Justice Antonin Scalia's death leaves a huge hole in his family's hearts and in the Supreme Court. It may also change the race for president. Who will President Obama nominate as replacement and how brazen will the Republicans be in blocking it?

BROOKE BALDWIN, CNN ANCHOR: And another question: how does Justice Scalia's passing impact, of course, the high court itself in the short-term? In the long-term, what happens to the big case before the justices this term? Let's begin this hour with CNN senior Washington correspondent Joe

Johns, live there in front of the Supreme Court.

Joe, Good morning.

JOE JOHNS, CNN SENIOR WASHINGTON CORRESPONDENT: Good morning, Brooke.

The flag here at the Supreme Court is at half-staff. The body of Justice Scalia has been returned to his home state of Virginia. And now people here at the court and across the country are contemplating how much will change, now that the figure who has led conservative legal thought on this country for a generation is gone.

(BEGIN VIDEOTAPE)

JOHNS (voice-over): The body of Justice Antonin Scalia returning home to Virginia this morning. The 79-year-old died here in his sleep at a Texas resort over the weekend. Funeral plans for the Supreme Court's strident conservative voice are under way, and so is the epic political battle for his replacement.

SEN. BERNIE SANDERS (I-VT), DEMOCRATIC PRESIDENTIAL CANDIDATE: President Obama, in my view, should make that nomination. I hope he does it as soon as possible.

RUBIO: There is no way the Senate should confirm anyone that Barack Obama tries to appoint in his last year in office to a lifetime appointment.

JOHNS: The Republicans fear another liberal nominee would tip the scales on some of the defining debates of our time. In the coming months, the Supreme Court justices are expected to take on several hot-button issues, including an Obamacare mandate requiring most employers to pay for birth control, abortion; and the president's actions on immigration.

BARACK OBAMA, PRESIDENT OF THE UNITED STATES: I plan to fulfill my constitutional responsibilities to nominate a successor. There will be plenty of time for me to do so.

JOHNS: Top Democrat Harry Reid called for the seat to be filled right away. As for a timeline, a senior Obama administration official points to the president's previous Supreme Court nominations, both taking about a month.

J. BUSH: He has every right to do it, and the Senate has every right to not confirm that person.

JOHNS: But Senate Republicans are pledging to stall, demanding that President Obama allow the next president to make the choice, nearly a year from now, the GOP hoping this could rally conservatives against a potential liberal shift on the high court, driving voters to the polls come November.

The problem with only eight justices: their only options are to leave the lower court's decisions intact if they're divided on a case or to hold the case over until a replacement is confirmed.

SEN. PATRICK LEAHY (D), VERMONT: If the Republican leadership refuses to even hold a hearing, I think that is going to guarantee they lose control of the Senate.

(END VIDEOTAPE)

JOHNS: A few more details about the death of Justice Scalia. A county judge telling "The Washington Post" that he did die of natural causes and that he was pronounced dead over the phone.

Back to you.

JOHN BERMAN, CNN ANCHOR: All right. Joe Johns, thank you so much at the Supreme Court. This is shaping up like a battle we have never seen before. Republican leaders tell the president, don't even bother nominating a replacement. They promise to block him in every way, at every chance if he does. The president has made it clear he will do it anyway.

CNN White House correspondent Michelle Kosinski traveling with the president in Rancho Mirage, California. Quite a trip to California for the president, Michelle.

MICHELLE KOSINSKI, CNN WHITE HOUSE CORRESPONDENT: Yes. I mean, the timing is strange. It's not expected to affect the business on this trip, though. The White House continues to insist that, yes, the president will put forward a nominee. And that it is just as much the duty of the Senate to give that person a timely confirmation.

And we know at this point the odds of that seem very unlikely. But the White House doesn't want to weigh in on all of that. On all the Republicans are saying about this needing to wait until we have a new president.

Here's what they are saying in the White House's latest statement. "Given that the Senate is currently in recess, we don't expect the president to rush this through this week. At that point, we expect the Senate to consider that nominee, consistent with their responsibilities laid out in the U.S. Constitution."

[07:05:05] So the White House is making that abundantly clear. And we know that the office of White House counsel is starting to meet. They will vet each of the president's potential nominees, and there are some names out there already possibly on the president's short list.

He will then likely want to meet with each of those people in person, possibly four or five based on the past. And even though the White House doesn't want to lay out an exact timeline on this. Again, they are saying the president will do it in due time. But for his two prior nominees, it took about a month before the time he started considering it and when he announced that nominee.

Back to you guys.

CUOMO: In some ways, Michelle, finding the nominee will be the easiest part of this process.

Let's discuss all the moving pieces. Let's bring in David Gregory of "Meet the Press" fame and Jeffrey Toobin, CNN senior legal analyst. Let's just get the capabilities out of the way.

The idea that the president should not or cannot nominate somebody, because he's in the last year of his tenure as president, is silly.

JEFFREY TOOBIN, CNN SENIOR LEGAL ANALYST: It's just -- that's a political assertion. It has no legal basis.

CUOMO: And put up the graph that we have for people at home of other presidents who have done exactly this.

TOOBIN: Right. Anthony Kennedy most recently, was confirmed in February 1988, the last year of President Reagan's term. There have been other -- other nominees. But the stakes are enormous, and the Republican Senate doesn't want to give Barack Obama another seat. That's what it's about. It's not about law. It's about politics.

BALDWIN: Before we get to the actual politics in terms of this Republican primary fight, David, we're coming to. And nice to meet you, by the way, on TV.

Before we get to all of that, let me just stay with you, Toobin, because when we look at the different cases in front of the court, they're supposed to decide on abortion rights, affirmative action, voting rights, power of labor unions and Obama's health care and immigration policies.

So whoever is nominated, that could -- I mean, that would sway decisions. This would be huge.

TOOBIN: This vacancy is so important, because there -- it has been, for a generation, 5 conservatives and 4 liberals on the Supreme Court.

BALDWIN: We'd tip the balance.

TOOBIN: It would tip the balance. So that makes the stakes even higher.

Now, it is true that the Supreme Court has historically acted with eight justices in the past. But when they decide evenly 4-4, the lower court opinion is affirmed, but it doesn't become a precedent for the whole country. That's what happens with 4-4 splits.

CUOMO: But it does become the law of that circuit.

TOOBIN: Yes. Which is a very big deal.

CUOMO: It empowers states to do things until the Supreme Court overrode it at some point in the future.

TOOBIN: Correct. I mean, the Supreme Court is not designed to operate with eight justices. It can. It has. But it is definitely not something the justices prefer to do.

CUOMO: All right. So let's get to the politics. David Gregory, it seems like a pretty naked play right now. They're saying, "We're not going to allow anyone that you put up there." And what's the plus/minus on that?

DAVID GREGORY, FORMER HOST, NBC'S "MEET THE PRESS": Well, look, Democrats have done this, as well in the Senate. I mean, this is a highly-charged political environment, and there's so much at stake on both sides. I think, as Jeffrey yesterday in his coverage over the weekend, and his coverage was underlining the crucial importance of this, ideologically, philosophically, politically for the court and the country.

The prospect here of changing a 5-4 conservative court into a 5-4 liberal court. This is a huge deal. And as I think back to President Bush's time in office, because he didn't have this kind of earthquake political and ideologically on the court. Nor has Obama, to that extent.

And I think one of the reasons, speaking to conservatives, is that, you know, Antonin Scalia was their guy. I mean, he was the intellectual father of originalism in the modern era since 1986.

How many presidential candidates on the on Republican side have said they would nominate someone in the mold of Scalia? So he's that big.

So regardless, if the president puts up somebody, absolutely there's going to be a fight. If the -- that nomination goes nowhere. And I think there's a lot of energy on the left in the fall.

On the right, I think there's going to be a lot of energy, no matter what happens. I think the stakes of the Supreme Court become all the more higher in the absence of Scalia. I think that's true now in these nominating primaries, as well as in the fall campaign.

And the question I'd ask for Jeff is, is there the danger of a failed nomination for the potential nominee, Sri Srinivasan, 48-year-old on the D.C. Circuit, who Jeff has touted as the -- as the favorite? If he's nominated and it's failed, is there any reason why a President Hillary Clinton would not just pick up where President Obama left off?

BALDWIN: That's a good question.

TOOBIN: It's a great question. And, you know, you have to wonder, just at a human level, does anyone want to accept a nomination under these circumstances?

CUOMO: Well, he could be put up again.

TOOBIN: He could be put up again. But, you know, Supreme Court nominations, the way these justices look at it is, look, I will get beaten up for six months, and then I'll spend 30 years on the Supreme Court.

[07:10:02] In this nomination, you have the prospect of getting beaten up for 10 months with virtually no chance of getting confirmed. Yes, it does raise the possibility, perhaps, that a President Hillary Clinton, President Bernie Sanders would nominate you later. But, you know, there will certainly be more second choices about accepting this nomination than there would be under normal circumstances.

BALDWIN: Let me throw this out there. Can we also consider how the justices would feel? I mean, you wrote the book. I was reading the opinion piece from David Axelrod on CNN.com. And his whole point was he was sitting around a table at the White House correspondents' dinner seven years ago with Justice Scalia, who was saying at the time, when there was a vacancy, he would hope that Elena Kagan. That ultimately was Sotomayor, and Elena Kagan, but to think that people so ideologically different, and he ultimately said to David Axelrod, "I just want someone really smart."

TOOBIN: Right. And the justice's views, frankly, are not that important in this matter. This is much more political.

The fact that President Obama nominated the first Hispanic to the court...

BALDWIN: Yes.

TOOBIN: ... Sonia Sotomayor, is one of the biggest parts of his legacy. He is -- these presidents think about these -- these nominations as a big part of their legacy. And, you know, what the justices actually think about it is not all that important.

CUOMO: Although sometimes they let their views be a little bit too much known. Like those who decide not to come to the State of the Union now -- you know, they have a choice whether or not to come and why they choose not to come, you know, about saying it's too politically charged.

BALDWIN: Right. Right.

CUOMO: Sometimes their choices are a little obvious.

Also, David, what will be interesting here, and what we've been talking about this morning is do you think this might be the first process where the pretense of nonpartisanship, in terms of -- not whether or not we want you to get your selection through. But, you know -- that it isn't about politics. It's about the law. And we want to know where these people are on the law.

Do you think this will be the first time where they kind of step past that and say, "Look, it is about the politics. It is about the positions. I want this man or woman to be on my side"?

GREGORY: Well, I mean, I think still not overtly. I mean, I don't think you're going to have presidents or vetters asking questions on particular matters. Because I think any jurist with the integrity of what it means to be a judge would not opine specifically on those hot- button issues.

But I think there's no question that, as Jeff alluded to, that the president wants to think about the ideological battle at stake and what's best for the country.

And again, I talk about this as ideological war in its purest and noblest form in this country. This is a contest of ideas and philosophy and interpretation of the document. And one of the things that's true about Scalia and his view of originalism, the role of the court playing a subtler, humbler role in society, is something that -- I think Jeff would have a better perspective on this -- has largely failed in the view of the modern-day court.

And you talk about the politics of this. I mean, of course, it doesn't matter to the justices. But you heard Chief Justice Roberts say just in the past couple of weeks how he laments the fact that the court as an institution could suffer, because it is so politically polarizing right now. And we see seen John Roberts, of course, being used as a punching bag in these Republican debates.

CUOMO: All right. Gentlemen, we'll have to see what the next page is in this situation. But certainly...

TOOBIN: Good to see David Gregory.

CUOMO: It is.

BALDWIN: So good. So good.

TOOBIN: Good to see David Gregory.

CUOMO: A generous addition to the team, to be sure. Always welcome here -- J.B.

BERMAN: All right. Thanks so much, Chris.

The race for the White House becoming something of a family affair now for Jeb Bush. George W. Bus, he will hit the campaign trail tonight. What will this do for the Jeb Bush candidacy?

CNN's Athena Jones live in North Charleston, South Carolina, with more -- Athena.

ATHENA JONES, CNN CORRESPONDENT: Good morning, John.

The Bush team is making a big play for South Carolina, and so they're bringing out perhaps their biggest gun, George W. Bush. This is a whole new stage in the race for Jeb.

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JONES (voice-over): George W. Bush hitting the campaign trail tonight for the first time since leaving office.

J. BUSH: Is he a popular Republican? You bet he is.

JONES: The former resident giving his younger brother a helping hand as the battle for South Carolina heats up.

G. BUSH: I know Jeb. JONES: "W" has already lent his famous face to an ad for Jeb's

campaign.

G. BUSH: Experience and judgement count in the Oval Office.

JONES: His guest-starring role on stage tonight is part of the Bush camp's effort to pull out all the stops. After a dismal sixth-place finish in Iowa, where his brother won...

G. BUSH: And you thank you, Iowa.

JONES: ... and a better-than-expected fourth place in New Hampshire, where his father won...

GEORGE H.W. BUSH, FORMER PRESIDENT OF THE UNITED STATES: I want to thank the wonderful people of New Hampshire.

JONES: ... Jeb is hoping for a strong showing in South Carolina, which handed primary victories to both presidents Bush.

J. BUSH: I think there's a lot of interest in my brother coming. This is the right time. Right when the interest is -- when it's important and when -- when people are watching.

[07:15:05] JONES: Bush, whose campaign logo doesn't even include his famous last name, and who began his run stressing he would be, quote, "his own man," is now embracing his name.

J. BUSH: I'm proud of my Dad. I'm proud of my brother. I'm proud of being a Bush.

JONES: But that extra dose of brotherly love this election year is already bringing an extra dose of scrutiny.

TRUMP: Obviously, the war in Iraq was a big, fat mistake.

JONES: Especially from GOP front-runner Donald Trump, who continues to bash the 43rd president's decision to go to war in Iraq. And his brother's initial response to questions about that decision.

TRUMP: And then he admitted that it was a mistake, finally, after five days. I mean, it almost -- look, he's got no chance anyway. But it almost cost him the election before he even started.

(END VIDEOTAPE)

JONES: And we know there's more where that came from when it comes to Trump.

Meanwhile, Bush sent out a fundraising appeal to supporters, saying that Trump went too far in attacking his brother in the debate the other night.

Of course, the big question here is whether bringing out "W" will actually give Jeb that much-needed boost. On "STATE OF THE UNION" yesterday, the governor would only say he hopes to, quote, "beat expectations."

Bush aides tell me the goal is to do best among the electable candidates. That doesn't include Trump or Cruz in their view -- Brooke.

BALDWIN: Athena, thank you very much.

Breaking news, meantime, out of Syria this morning. Turkey's prime minister accuses Russia of airstrikes that have killed at least 15 people at a hospital, at a school in northwestern Syria. We're told up to 40 others are injured. The hospital is part of the Doctors Without Borders network. No comment yet from Moscow.

CUOMO: Authorities in the U.K. are trying to track down the person who pointed a laser at a plane headed from London to New York. The incident happened shortly after takeoff on Sunday. Virgin Atlantic says the first officer started feeling sick, so the pilots had to head back to Heathrow as a precaution.

All 252 passengers were offered hotel rooms and tickets on the next flight to JFK.

BERMAN: A terrifying weekend on the slopes in New Hampshire. Four dozen people were stuck in two tram cars, hanging 40 feet above ground in sub-zero temperatures. One victim said it took the crews at the ski resort Franconia more than two hours to rescue everyone. Some people even had to climb down.

Officials said there was a service break issue. Fortunately, no one was hurt.

I mean, it was so cold this weekend.

BALDWIN: To be stuck hanging there?

CUOMO: And that's the fear.

BERMAN: Yes.

CUOMO: Every time you're in one of those things, there's always these quiet conversations about what you would do, dot, dot, dot. At least they're all OK.

All right. So we have been talking about Nino Scalia all morning and what's going to happen. We have former attorney general Alberto Gonzales coming on the show. He understands the Supreme Court and the politics. What does he think should happen and why?

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[07:21:51] CUOMO: The passing of Supreme Court Justice Antonin "Nino" Scalia has set in motion a really fierce political battle for who will get his place on the court, although none will replace him in terms of his influence on this court right now. That's for sure.

So what is this going to mean in terms of going into it? What are the capabilities? What are the possibilities? And what should be considered in this situation?

We have a man who can really give us excellent perspective on what's going on with replacing Justice Scalia and some other dynamics in politics right now. Former U.S. attorney general, now the dean of Belmont University College of Law. It is really, really good to have you with us, Alberto Gonzales. Thank you for being with us. Dean, as I'll call you now.

ALBERTO GONZALES, DEAN, BELMONT UNIVERSITY COLLEGE OF LAW: Always a pleasure to be with you.

CUOMO: Please, if you would, will you share a memory that you have of when them-Chief Rehnquist passed. You got a little bit of exposure, of who Nino Scalia was as a man and what it meant to him to be on the court. Tell us about your recollection?

GONZALES: It was 2005. Chief Justice Rehnquist had just passed away. And -- and as attorney general I went over to the Supreme Court to pay my respects, and I was greeted by Justice Scalia on behalf of the court.

And what I remember was how emotional he was. He talked about how he'd just spoken with Rehnquist, had just seen him, and now suddenly, he was gone. And the look of shock on his face was really memorable. And, you know, I had that same feeling of shock this weekend when I heard that Justice Scalia had passed away.

CUOMO: He was a giant. He was a giant to his family, nine kids. A huge, proud family, the Scalias. Obviously, their loss irreplaceable, and equally for the court. This man was an intellectual giant, and he was someone of impact on that court.

Do you believe that it is a significance that can be replaced with whoever the nomination is?

GONZALES: Well, of course, he leaves a tremendous legacy, particularly for conservatives. And who President Obama nominates to fill that seat is going to be very, very important to the future of this court and for the future of the jurisprudence of this country.

And I know there's a big debate going on right now about whether or not Obama should nominate someone, from my perspective, having worked in the White House and at the Department of Justice.

But there's just no question in my mind that, as president of the United States, you have an obligation to fill a vacancy. And so I suspect that President Obama is going to do his job. And after he does his job in nominating, hopefully, a qualified individual, the Senate will do its job, eventually, on its own calendar.

Now, there's already talk, criticism by Democrats that the Republicans are threatening to block this nominee. Unfortunately, in the confirmation process, there is always politics involved itself. And you've got -- you had Democrats in the past block Republican nominees. And you may have the same thing happen in this particular situation. The bottom line from my perspective is the president has to do his job

in nominating a qualified individual, and then the Senate does its job in assessing whether or not this person is qualified for a lifetime appointment on the court, based upon experience, based upon ideology, and based upon integrity.

[07:25:03] CUOMO: You're making an obvious point, certainly, to you because of your mastery of the law but really to anyone, which is the idea that President Obama should not or cannot nominate because he's in his last -- last year is without any kind of basis in law or really in history. But the question becomes what are the practicalities?

Do you believe that there is a risk to blocking this nomination at this time? Especially if someone is picked as a nominee who has been unanimously confirmed in the last couple of years.

GONZALES: You know, I've heard some of the commentaries speak about that, and from my perspective, that really matters little. Because district court judges, circuit court judges are often confirmed without much -- without much scrutiny, without much questioning in a hearing. And so, from my perspective, it's a much different ball game. The fact that you can confirm unanimously to district court or a circuit court tells me nothing as to whether or not you should be confirmed for a lifetime appointment on the U.S. Supreme Court, where you have to deal with consequential issues, like how do you interpret the Constitution, how should precedent, how should it affect your decisions going forward? So from my perspective, it's -- it matters little the vote at the lower court level.

CUOMO: Let me get your head on something else, Dean. What we heard from Donald Trump at the debate this weekend about how George W. Bush basically knew he was giving bad information to the country, that there were no weapons of mass destruction, and that's why the Iraq War was such a huge mistake. Do you believe there is validity to that claim?

GONZALES: Absolutely not. You know, I sat in, I think, on virtually every national security meeting, every principals committee meeting, when we talked about Iraq. No question, everyone in that room, in the situation room, believed that there were stockpiles of weapons of mass destruction.

And I think what you heard in the debate this weekend are comments from someone who's ignorant in the way that these kinds of decisions are made. Because this is not a belief by simply George W. Bush, but it was a belief by everyone in the Bush administration, by our allies around the world, by members of Congress.

And so, no, again, I think it just reflects comments from someone who doesn't understand how difficult these decisions are. There's no other job in the world like being president of the United States. No job even as a CEO can prepare you for making these kind of very difficult decisions.

CUOMO: So the man who has the fact that there were no weapons of mass destruction hanging over his head, in Donald Trump's mind is going to hit the campaign trail for his brother in South Carolina.

What do you think people should expect from President George W. Bush in terms of how aggressive he is in terms of justifying his own legacy and supporting his brother? What should we expect?

GONZALES: I don't think it will be about his legacy, justifying his legacy, about talking about himself. He'll be talking about Jeb. He'll be talking about -- he'll talk about how difficult that job is, what that job requires. And he'll talk about why Jeb is the right person for that job.

He knows Jeb, obviously, very, very well. He knows Jeb's character. He knows Jeb's courage and intelligence. And so that's -- I think what he's going to focus on is -- is Jeb and why Jeb is the best person for the job.

And I think -- I don't think he's going to be talking about -- about what his experiences were so much or his legacy. He wants to talk about the future of America and why Jeb should be at the forefront of that future.

CUOMO: Dean Alberto Gonzales, thank you very much for being on NEW DAY. Welcome. And come back soon.

GONZALES: You bet. Thank you.

CUOMO: All right. A quick programming note for you. If you watched the debate Saturday night and you're like, "Oh, my God, they're just yelling at each other. Is this what it's going to be?" we've got a great deal for you. A two-night event coming up on CNN this week.

You're going to get to see all six Republican candidates. Not just going at it with each other. They're going to take questions directly from South Carolina voters, for the very first time in this campaign in a live televised town hall on Wednesday and Thursday nights.

Why two? Because you've got a big field. That's why. So we're going to split it in half. Anderson Cooper will perform this again brilliantly. First night, Ben Carson, Marco Rubio, Ted Cruz. That's Wednesday night. Then Jeb Bush, John Kasich and Donald Trump Thursday night. Both nights will begin at 8 p.m. Eastern only on CNN.

A first of its kind, J.B.

BERMAN: And remember, just two days before the South Carolina primary. So this will be pivotal.

Meanwhile, battle lines drawn in the wake of Justice Scalia's death. We're going to take a closer look at the implications, the political implications of his passing on the race for the White House, on the White House itself, on the Senate itself. This could have an impact that lasts generations.

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