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Justice Antonin Scalia Dies; President Promises to Nominate Supreme Court Justice to Replace Antonin Scalia; Defending Donald Trump's Debate Comments. Aired 8-8:30a ET

Aired February 15, 2016 - 08:00   ET

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

[08:00:00] BROOKE BALDWIN, CNN ANCHOR: Good morning.

JOE JOHNS, CNN CORRESPONDENT: Good morning, Brooke. A snowy day here at the United States Supreme Court. The flag is at half-staff. The body of Justice Scalia now back in his home state of Virginia. The court and the country now thinking about and pondering just what's going to happen next now that the single most important figure in conservative legal thought has died.

(BEGIN VIDEOTAPE)

JOHNS: 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 underway, 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.

SEN. MARCO RUBIO (R-FL), PRESIDENTIAL CANDIDATE: 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.

(APPLAUSE)

JOHNS: The Republicans fear another 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 Obama care 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 responsibility 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.

UNIDENTIFIED MALE: 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 Mr. 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 justices, their only options are to leave lower court decisions in tact if they're divided on a case, or to hold the case until a replacement is confirmed.

UNIDENTIFIED MALE: If the Republican leadership refuses to hold a hearing, I think that is going to guarantee they lose control of the Senate.

(END VIDEOTAPE)

JOHNS: There had been some concerns and some confusion about the circumstances surrounding Scalia's death. A county judge in Texas confirming that he did die of natural causes and that he was pronounced dead over the phone after consultation with law enforcement authorities. Back to you.

JOHN BERMAN, CNN ANCHOR: Joe Johns at the Supreme Court. Thanks so much, Joe.

So what does the president do now? How hard is he willing to fight over this in his final 11 months in office? CNN White House correspondent Michelle Kosinski traveling with the president in California. Good morning, Michelle.

MICHELLE KOSINSKI, CNN WHITE HOUSE CORRESPONDENT: Hi, John. The White House keeps insisting that it is the president's duty to put forward a nominee, but it is just as much the duty of the Senate to give this person, whomever it will be, a timely confirmation. The odds of that of course right now not looking so great.

But the White House doesn't want to weigh in on that. They don't want to talk about all the Republicans are saying about this needing to wait until we have a new president. But here is what the White House is saying in a statement. "Given that the Senate is currently in recess we don't expect the president to rush this through this week but instead will do so in due time once the Senate returns from their recess. At that point we expect the Senate to consider that nominee consistent with their responsibilities laid out in the United States constitution."

So we know that the Office of White House Council is already starting to take on this task. They are going to have to vet people who are rumored to be on the president's short list. Some names being put out there, there are several federal appeals court judges, even the current attorney general, Loretta Lynch. The White House isn't giving anything away at this point, but as Joe Johns was saying, if you look at the past it has taken a month for the president to present his nominee. That could also be the case this time around even though we do have a sense of urgency surrounding this. Chris and Brooke?

CHRIS CUOMO, CNN ANCHOR: All right, thank you very much, Michelle, appreciate the politics side of this.

Now let's try and get some perspective on all of this. There are a lot of different pieces to this. Good thing we have big brains this morning, David Gregory of "Meet the Press" fame, Jeffrey Toobin, CNN senior legal analyst. All right, this is a little bit of a headache. We have a loss of the man. That is not a headache. It's horrible for his family and his friends. This man was a giant.

Now you get into how you deal with what happens on the court. There are all of these precedents at play. One thing that is not a precedent in any way is the idea of President Obama not having the right or even politically not nominating somebody because he is near the end of the term. That's just piffle. But it does get complicated in terms of what can be done here and what's been done in the past.

[08:05:01] JEFFREY TOOBIN, CNN SENIOR LEGAL ANALYST: Right. This is ultimately more about power than principle. The Republicans recognize that the Supreme Court is currently, or was before Justice Scalia died, five to four conservative majority. Scalia is gone. This gives President Obama the opportunity to reshape the court for a generation. They don't want to let him do it, period. That is really what this is about. And with a year left in his term they can run out the clock if they want because the Republicans control -- but there's nothing about precedent. There's nothing about law. It is just an exercise of power by the Republicans in the Senate.

CUOMO: As we've been talking about it, they put together a graphic, because, Brooke, you have been raising good questions about what has been done here in the past. We have had periods before of how long until a nomination.

BALDWIN: And 99 days, the longest, Clarence Thomas. We have the graphic here. You can see how long it has taken. You can see on the far left all the way to the right. So it is a process in any other circumstance. And now here we are in the midst of this presidential election, David Gregory, and I'm just curious how, as I'm thinking of Republican candidates on the stage debating all of this and they talk about we are up against Hillary Clinton, how will they use this to their advantage?

DAVID GREGORY, FORMER MODERATOR, "MEET THE PRESS": I think two ways. The one big number -- 16 years. There is the prospect of 16 consecutive years of Democratic rule in the White House if Hillary Clinton becomes the nominee and ultimately the president is a two term president. So if you are thinking about the Supreme Court in that span of time, you are talking about the generational change underscored by the fact that the conservatives have lost really the intellectual godfather, the modern textualist, originalist movement in Antonin Scalia who has had so much impact. So I think that is huge.

The other piece is pure ideology. You hear Ted Cruz talking about what kind of justices Donald Trump would name. Would there be movement conservatives? Ted Cruz is in a position as a former Rehnquist clerk himself and a lawyer and a Supreme Court advocate to really make a very coherent argument about the kind of justices who should succeed a Scalia if they have a Republican president. So I think both parts of it including an ideological fight in the state like South Carolina that is coming up in the next few days.

TOOBIN: If I can just add a point to what David said, the court is now at an unusually old group of people even by historical standards. Ruth Ginsberg is 82. Anthony Kennedy is 79. Stephen Breyer is 77. So it is not just the Scalia vacancy that is on everyone's mind. There is also the prospect of wholesale changes at the court if retirements take place in the age group that they usually do.

CUOMO: Now in terms of what they want, this is something that needs to de be discussed. There is this veil, it is not really political. We sit these men and women down, they don't give political opinions. And we really want to talk about what we want in terms of their reckoning of the law. It really seems to me like real balderdash at some point.

You have Ted Cruz. We want an originalist. First of all, he knows Scalia is the father of originalism, but even he left the document from time to time. You have Ted Cruz who is relying on the definition of being eligible to be president which isn't an originalist notion. If you went by the original document, he might be in some trouble on that. So there is a real hypocrisy to what they say they want and what they really want.

TOOBIN: What they want, what everyone wants in the Supreme Court, I think, is results. Does the constitution protect a woman's right to choose an abortion? May a university use race in admissions? May Congress regulate campaign contributions? Those are the results people care about. The intellectual architecture that gets you there I think matters less.

BALDWIN: What happens when you think of cases that will be in front of the Supreme Court, affirmative action, immigration health care? And if we're talking four and four, a tie or a court divided, what then until there is a ninth?

TOOBIN: What happens from a practical point of view is that the lower court decision stands and represents the law of the land for the circuit, for the states that that circuit represents. That is the status quo. But there are no precedents established for the whole country if the court divides four to four. Most of the time the Supreme Court is not evenly divided. Most of the decisions are substantial majorities or unanimous, so those cases go forward as normally. But the hot button, high profile cases may likely be kicked down the road.

CUOMO: We have a treat for you. We have Nino Scalia's biographer who is joining us now. Joan, do me a favor. First let me get the right pronunciation of your last name. You ethnics, it's very tough to say your name.

JOAN BISKUPIC, REUTER'S LEGAL AFFAIRS EDITOR: Yes, just like Scalia would say, right? Biskupic, Biskupic.

[08:10:00] CUOMO: Biskupic, so tell us about the man. I love that when people would ask about him his background, for all the genius he is associated with, he would say I'm an Italian from Queens. There's my background. Next question. Who was the man?

BISKUPIC: That helped him get confirmed, you know. Even Teddy Kennedy with all the Italian-Americans up in Massachusetts had to vote for him knowing how conservative he was. So he was an only child, first generation Italian-American. He was the only offspring of his generation, too. So he has been in the spotlight since birth.

He was fun. He loved to play poker. He sang. He played the piano. Obviously he loved to hunt, and that is where he was this weekend. He once asked me about had I gone turkey hunting. Of course not. He said have you ever heard a turkey gobble? And I said no. He said, the thing is when you are waiting for a turkey and you're listening to the gobble, and you're waiting for that, you have just one shot. And I always remember him talking about the one shot to get the turkey in terms of his idea of his one shot in life.

BALDWIN: Joan, I'm fascinated will all of these different justices, and some of them are getting up in years. Is that a correct way to say it?

CUOMO: I'll say it like that.

BALDWIN: And I'm fascinated by the relationships between some of these justices, specifically I know you know all about the relationship and the deep friendship between Justice Scalia and Ruth Bader Ginsburg.

BISKUPIC: That's true. And Justice Ginsburg is our most senior justice. She's going to have a birthday on March 15th. And then Justice Kennedy is about to turn 80. They were pals. These people are appointed for life. They're in closed quarters for day in and day out. So it is like a family and the dynamics among all of them.

And she said, and I just caught the end of what you all were talking about, but I wonder if you mentioned what she said in her remembrance, "We were best buddies." And all of them, even the justices who weren't as close to him all thought of him so fondly.

There was a lot of eye rolling around him. It was like "That's our Nino." They sort of accepted him for that even though he drove many of them crazy. Justice Sandra Day O'Connor herself, who is now retired, his behavior sometimes would push her more to the left. Justice Stevens, who is also retired, really considered him a good friend, although again it would be like that's Nino in terms of some his behavior. But he was such a force to be reckoned with. He was there since 1986, and it is really hard to imagine what the country is going to be like without him on the law and also within the confines of the marble palace there.

CUOMO: Because of all the politics surrounding him right now, Joan, give us a little bit of his head on where politics were. I'm reminded, as you know, he and my father had a lot back and forth. And Scalia used to tease my father and say, why do you mess with this politics? Everybody is all over the place. You know your own head. You should get back into the law. Where was he on politics? BISKUPIC: He came in the Nixon administration. He was a hardcore

Republican, but he didn't show it so much. He worked in the Nixon administration and the Ford administration. He was head of the Office of Legal Counsel. He was very political.

I will never forget seeing him in 2009 right after David Souter had announced his retirement. I went to see him in chambers, and I said who do you think it would be? And he said, oh, come on, he has to appoint the first Latino. He sort of got all of that. Right now he would be thinking, OK, he would be gaming it out just like both sides are gaming it out now. But he was very committed. He was very committed to Richard Nixon, to Gerald Ford, and then he was a Ronald Reagan appointee.

BALDWIN: What do you think he would think of politicization of what this will mean not just for the fight to become president, the current Republican majority of the Senate, the big picture implications? What would he think?

BISKUPIC: Frankly I think he would be really scared knowing where these cases are going to go. I caught Jeff talking about what is at stake here, the idea that so many cases that could have gone five-four without him now are going to go four-four with a split or maybe have to be reargued. This already was the most politically charged term we've had in years with the array from affirmative action to abortion to the death penalty and immigration. So I think actually despite his rightwing ideology and political leanings, he would be concerned about what is going to happen to the law of the land.

TOOBIN: Joan, can I ask you to talk about something which I think is a fascinating legacy of Justice Scalia is how oral arguments changed at the court once Justice Scalia joined in 1986. Talk a little bit about that.

BISKUPIC: Well, Jeff, they used to be a quiet bunch up there. We had Thurgood Marshall, William Brennan, Harry Blackman. They didn't talk much during questioning. In fact, now when people complain about the fact that Clarence Thomas didn't speak, it used to be many of them didn't speak much. You know, they would speak some, Clarence Thomas doesn't, but they didn't speak much.

So he comes on and he's got -- he's kind of got the law professor style and he's so certain of himself and confident that he begins asking so many questions nonstop, it really shakes things up. And I've kidded about how one of his colleagues turned to another and said do you think he knows the rest of us are here? So, he -- and then it was nonstop. And now it's the norm up there in part because we have more law professors who've joined the bench and there's more give and take.

And he also, Jeff, you probably remember this, he could be really mocking and humiliate the person standing at the lectern. I remember one time --

TOOBIN: Excruciating.

BISKUPIC: Oh, it was terrible. He would say something like are you reading from that and try to embarrass the guy. Or I think one time he said, well, if somebody was stumbling to find the answer in his written materials, which you really shouldn't do, but he said when you find it, could you shout bingo.

(LAUGHTER)

BISKUPIC: But that was the thing about him. We would laugh, but there was -- it was tough if you were in his sights.

CUOMO: Well, look, one of the big themes that was around this man not just as a jurist but as an individual was decisiveness. So let's play on the irony of that, David Gregory. We are coming into replacing him in an atmosphere that is all about being indecisive. The politics are certainly going to be of obstruction and trying to get nothing done. What's the plus/minus on that?

GREGORY: Well, again, I think that both sides have a fight and an argument to make here. And if you are the president you are certainly going to nominate someone, understanding that there is a broader legacy to the Obama presidency here and the future of the court moving in a potentially more progressive direction for a long period of time if he has a Democratic successor in Hillary Clinton or Bernie Sanders.

And on the right I think there is a probably a more visceral sense of we just lost our guy, somebody who was so important to movement conservatives so there is a substantive piece of that. But there is the direction of the court, as well. And I think you have a lot more I think grass roots organizing that goes on on the right to turn out voters for whom the Supreme Court nominee is a huge issue. And as Jeff points out, it's not just Antonin Scalia now but it's all the potential slots that open up over the next four to eight years. So I think that becomes tremendously important.

And I just wondered too, into this conversation, to what extent Antonin Scalia, who was outspoken for saying about Bush v. Gore to his critics get over it, I wonder to whatever extent he really struggled with that as a decision, given how humble and quiet he wanted the Supreme Court to be in American political society.

BALDWIN: Joan, would you have an answer to that?

BISKUPIC: Yes, I was going to say, humble and quiet actually, those aren't two of his watch words.

(LAUGHTER)

CUOMO: I was going to say.

BISKUPIC: I think he -- what he couldn't get over, David, were decisions that went the opposite way, you know, for example, gay marriage. But he always remained very confident about that decision in Bush v. Gore and batted away anyone who would ever counter it.

BALDWIN: Final question, Joan, and I'm just wondering, you know, knowing currently there is now this court of eight, how would he feel about President Obama nominating someone now versus, as we're hearing from Republicans, doing it down the road?

BISKUPIC: Well, that's tough because I think, as I said, institutionally he cared so much about the Supreme Court and cared so much about the law that I don't think he'd want the court to go, you know, for a long time with just eight members. And I can hardly really speak for him but I think he really believed, he so believed in this court of last resort. But, you know, he probably would have misgivings about a liberal succeeding him. Gosh, how ironic, a liberal succeeding this man who's had such a conservative imprint on the law.

CUOMO: Joan, David, Jeffrey, thank you very much. What a great discussion about this guy.

And look, let's be honest. Scalia was not quiet. And we know that he didn't like what was going on in the election, talking about how the Supreme Court doesn't make the law of the land and these guys aren't elected.

BALDWIN: That bit about the bingo.

(CROSSTALK)

CUOMO: He didn't like the dialogue that's going on right now in this election, but was certainly not alone in that. Let's make that turn as we go into break.

This weekend what an ugly demonstration of what politics has become at the presidential level.

[08:50:00] They were going at it but the level at which Trump and Cruz were going at it. Trump even went after the audience it seems at one point. We're going to talk to a Trump spokesperson about how this is going to help or hurt him in South Carolina.

(COMMERCIAL BREAK)

(BEGIN VIDEO CLIP)

SEN. TED CRUZ (R-TX), PRESIDENTIAL CANDIDATE: The next president is going to appoint one, two, three, four Supreme Court justices. If Donald Trump is president, he will appoint liberals. If Donald Trump is president, your Second Amendment will --

DONALD TRUMP (R), PRESIDENTIAL CANDIDATE: Excuse me, I'm not going to -- I'll tell you --

JOHN DICKERSON, CBS HOST: Hold on, gentlemen, I'm going to turn this car around.

TRUMP: John Roberts -- Ted Cruz, with your brother, wanted John Roberts to be on the United States Supreme Court. They both pushed him. He twice approved Obamacare.

DICKERSON: All right, gentlemen.

(END VIDEO CLIP)

BERMAN: Those were some calm, tepid moments from Saturday's debate in South Carolina. As you heard right there, the early response to Justice Antonin Scalia's death made for some fiery exchanges in that very tense debate. The Trump campaign trying to hold off Ted Cruz in South Carolina. The primary is Saturday.

Joining us now is Katrina Pierson, a spokesperson for the Trump campaign. Katrina, thanks for being with us.

KATRINA PIERSON, NATIONAL SPOKESPERSON, TRUMP CAMPAIGN: Good morning, John.

BERMAN: So Ted Cruz says Donald Trump would appoint liberal judges. Ted Cruz said that Donald Trump is supportive of some of the things that Planned Parenthood does. He said it at the debate Saturday night. He said it again on Sunday. Let's just listen to that quickly.

(BEGIN VIDEO CLIP)

[08:55:04] CRUZ: Donald Trump is not a conservative. For his entire life he has been self described very, very pro choice. He supported partial birth abortion. You know, yesterday, he defended Planned Parenthood and federal taxpayer funding for Planned Parenthood on the debate stage. George, have you ever seen a Republican on a Republican debate stage defending taking federal taxpayer money and giving it to Planned Parenthood? He said he thinks they do terrific things.

(END VIDEO CLIP)

BERMAN: So Katrina, what are terrific things that Donald Trump thinks that Planned Parenthood does?

PIERSON: Well, to your first sound byte John, it's interesting because very opening question of that debate went to Mr. Trump about his Supreme Court pick. And that was Diane Sykes. That is not a liberal. And Senator Cruz just took that opportunity to try and make his case, trying to make a play for South Carolina.

BERMAN: Fair enough.

PIERSON: But secondly, with regard to Planned Parenthood, Mr. Trump has said that Planned Parenthood does do cervical cancer screenings. And that is a good thing when you are a poor single mom in a neighborhood that doesn't have access to other clinics.

However, Mr. Trump is wholeheartedly against abortion funding and we do know that if Planned Parenthood does continue to receive federal funds from the government, that those funds are fungible. So there has to be a way to say, look, no more abortions or go start a different clinic. Federal government should not be funding abortions, John.

BERMAN: You do understand, though, that Donald Trump's position on Planned Parenthood, saying they do good things even for cervical cancer, puts him in a different place than these other candidates running in South Carolina right now, just five days before the primary.

PIERSON: Well, Donald Trump is that candidate that is outside the echo chamber. You know, most of these guys are in the hall of mirrors which makes it dangerous in a general election You can talk about life saving things like cervical cancer screenings without talking about leaving poor women unattended, and still being against abortion. And that's one of the things that Mr. Trump has done in this situation.

You have political talking points. You have rhetoric coming out of the far right, who want to just ignore the fact that there are poor women who need cervical cancer screenings, maybe not by Planned Parenthood, but however some of those clinics are not in those areas. And Mr. Trump is simply just stating that. That is what he talks about when he refers to women's health.

BERMAN: Katrina, you just referred to the far right. Just for point of reference here, does Donald Trump consider himself to be part of the far right?

PIERSON: Well, Donald Trump is a conservative. Donald Trump does not support abortion. He is supportive of traditional marriage and he wants to get back to limited government and sensible, common-sense spending. So that is a Republican position. But you have those like Senator Cruz who just use Planned Parenthood as a talking point.

BERMAN: Is Ted Cruz --

PIERSON: But to Mr. Trump's point --

BERMAN: Is Mr. Cruz further right than Donald Trump?

PIERSON: Ted Cruz is speaking further right than Mr. Trump. I mean, we are talking about a campaign that is hardly unrecognizable at this point on Senator Cruz's side.

But I will say this to Mr. Trump's point, when we're talking about Supreme Court judges, which do things like gay marriage and Obamacare, Mr. Trump is absolutely right. Senator Cruz wrote an op-ed in "The National Review" praising the methodology of John Roberts, praising his ability as Harvard lawyer, being a lawyer's lawyer and a conservative, and he gave us Obamacare.

BERMAN: On another issue, which there is a dividing line between many in the Republican Party and Donald Trump, is George W. Bush and his role before, during and after the September 11 attacks. Does Donald Trump believe that George W. Bush tried to keep America safe?

PIERSON: Mr. Trump believes that 9/11 did happen under George Bush's watch. And we can't say the president is in charge and the buck stops with the president unless it's somebody that I like. Number one.

Number two, there were lives lost on that day. Number three, when you look at Mr. Trump's guidelines for safety, they

are very much different than George Bush's or Jeb Bush's or Ted Cruz's. Mr. Trump is the only one running for president today that wants to stop illegal immigration, period. He is the only one that wants to stop and halt immigrants coming in from hostile Muslim nations, fix the visa program system. So for Donald Trump standards of safet, then absolutely he does not feel like George Bush kept us safe.

BERMAN: Does it concern you, as someone who has spoken out for conservative causes over the last several years, that when Donald Trump says that Bush lied, which he said on the debate stage, that sounds like some of the rhetoric you hear from groups like Code Pink. You know, Bush lied, people died. Is Donald Trump closer to them than he is to the Republican Party on the issue of George W. Bush's legacy?

PIERSON: No, not at all. What this is, John, is you have the government agencies who had information, who may or may not have given it to George Bush, and George Bush said it. Now, did we find out after the fact that was not true? Yes, we did, and I think everyone agrees now there were no weapons of mass destruction. It did cause chaos in the Middle East. It was unsettling and we're still suffering consequences today.

Now, the word choice, yes, a lot of conservatives are going to say, well, that sounds liberal. But again we're talking about a candidate that's outside the echo chamber and is talking about things that all Americans consider very important, particularly moving forward when we're still having struggles in the Middle East.

[08:30:09] BERMAN: Katrina Pierson, thanks for coming on with us this morning. Really appreciate it.