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Battle Over Scalia's Replacement Intensifies. Aired 7-7:30a ET

Aired February 16, 2016 - 07:00   ET

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

[07:00:00] HILLARY CLINTON (D), PRESIDENTIAL CANDIDATE: ... if it's not true, he's going to bark. I'm trying to figure out how can we do that with the Republicans? Bark, bark, bark.

[07:00:07] UNIDENTIFIED FEMALE: The war of words is escalating.

CLINTON: I am not a single-issue candidate. I am not a single-issue candidate.

SEN. BERNIE SANDERS (D-VT), PRESIDENTIAL CANDIDATE: The idea that I am a single-issue candidate. It's not one issue.

(END VIDEOTAPE)

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

PEREIRA: Good morning. Welcome to your NEW DAY.

Alisyn is just off. John Berman is here with us this morning. An all-out political war erupting over who will replace Supreme Court Justice Antonin Scalia. Leaders on both sides of that aisle locked in a heated battle over whether President Obama should pick a successor.

The White House daring the GOP to try and put politics ahead of their duties and reject the nominee.

CUOMO: It is politics at its worst. And an echo of the current state of the presidential campaign. Liar, loser. From first to last we're hearing it. Everyone fighting for the upper hand or lower hand, depending on how you look at it.

We also have former President George W. Bush hitting the campaign trail for the first time in years to help his brother Jeb and firing back at were Donald Trump's blistering attacks. CNN has it covered from all angles.

Let's bring in senior Washington correspondent, Joe Johns, live in Washington. Good morning, Joe.

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

This is about the president's pick right now. He's the one who gets to choose. The White House already has a number of names of potential Supreme Court nominees. But as always, it could take some time to whittle down the list to a group of finalists.

And administration sources have told CNN there may be another consideration. The main scenario the White House envisioned was filling the vacant seat of one of the liberal justices. But right now they're looking at a very different situation.

(BEGIN VIDEOTAPE)

JOHNS (voice-over): This morning Senate Minority Leader Harry Reid taking aim at the Republican leadership for saying they will block anyone nominated by President Obama to succeed Supreme Court Justice Antonin Scalia. In an op-ed for the "Washington Post," Reid writes, "If my Republicans colleagues proceed down this reckless path, they should know that this act alone will define their time in the majority. Thinking otherwise is fantasy."

Reid and Senate Majority Leader Mitch McConnell have been trading jabs since the first news of Scalia's death, with members of the Judiciary Committee confirming party lines have been drawn.

SEN. PATRICK LEAHY (D-VT), JUDICIARY COMMITTEE: The Republicans are talking about the Republican playbook. This is the playbook we should follow, the Constitution of the United States.

SEN. JEFF SESSIONS (R-AL), JUDICIARY COMMITTEE: President Obama has gotten two activists judge appointments to the court. Capable, intelligent justices but share deeply his philosophy.

JOHNS: Reid and other Democrats are hoping the White House pick will be someone Republicans would ordinarily support. To point out the opposition is politically motivated, because it's an election year.

ERIC SCHULTZ, WHITE HOUSE DEPUTY PRESS SECRETARY: The Constitution does not include exemptions for election years or for the president's last term in office. There's no exemptions for when a vacancy could tip the balance of the court.

JOHNS: The White House confirming the nomination process is already underway as the vacancy intensifies the presidential race. Ted Cruz, a member of the Senate Judiciary Committee, amplifying what he says is at stake with a new ad.

UNIDENTIFIED MALE: Life, marriage, religious liberty. The Second Amendment. We're just one Supreme Court justice away from losing them all.

JOHNS: The 2016 presidential hopefuls are digging their heels in on the issue that's now shaping the race.

RUBIO: Irrespective of what President Obama does, we're not moving forward on a nominee until after the election.

HILLARY CLINTON (D), PRESIDENTIAL CANDIDATE: Barack Obama is president of the United States until January 20, 2017, whether the Republicans like it or not. (END VIDEOTAPE)

JOHNS: We may get a window in the president's thinking about replacing Justice Scalia today when he talks to reporters in California. He's only said he will nominate someone in due time. Not clear what that means. Sources told CNN one of the options may be nominating a so-called sacrificial lamb who might have no chance of getting confirmed, but whose rejection by the Republican-controlled Senate could galvanize Democratic voters and increase turnout in November, John.

BERMAN: It will be a window in how hard he's willing to fight. That will be interesting. Joe Johns for us, thank you so much.

All right. So it was a Presidents' Day event. The former president on the trail defending the establishment from an insurgent candidate. And in this case, the establishment is his brother. George W. Bush stumping for brother Jeb for the first time at a rally in South Carolina. The former president urging voters to choose the measured and thoughtful candidate, not the loudest and angriest guy in the room. Who do you think he was talking about right there?

CNN's chief political correspondent, Dana Bash, joins us now.

Good morning, Dana.

Good morning, John. And you know, it wasn't just George W. Bush's first time campaigning for his brother. It was his first political rally of any kind in about a decade. But he broke his strict former presidents shouldn't play politics rule to help out his baby brother.

(BEGIN VIDEOTAPE)

BASH (voice-over): George W. Bush drew a large crowd and a deep distinction between his brother and Donald Trump.

GEORGE W. BUSH, FORMER PRESIDENT OF THE UNITED STATES: Strength is not empty rhetoric. It is not bluster. It is not theatrics. Real strength, strength of purpose, comes from integrity and character. And in my experience, the strongest person usually isn't the loudest one in the room.

BASH: The 43rd president never uttered Trump's name, but he didn't have to.

G. BUSH: We do not need someone in the Oval Office who mirrors and inflames our anger and frustration.

BASH: He spoke only a few hours after Trump doubled down on criticizing him for 9/11.

DONALD TRUMP (R), PRESIDENTIAL CANDIDATE: I've heard for years he kept the country safe after 9/11. What does that mean, after? What about during 9/11? I was there.

BASH: The former president recounted what it was like for him that horrific morning and segued to Jeb.

G. BUSH: He's got the backbone necessary to make the tough decisions on behalf of the American people.

BASH: George W. Bush energized not just the crowd but his brother, the candidate.

J. BUSH: I thought it was a little strange that a front-running candidate would attack the president of the United States, who did keep us safe, while he was building a reality TV show.

I can beat Hillary Clinton. I can promise you that.

BASH: Meanwhile Trump, the South Carolina front-runner, is waging all-out war, not just against Bush but Ted Cruz, closest to Trump in most polls.

TRUMP: Ted Cruz is the most dishonest guy I think I've ever met in politics. I think he's an unstable person. I really do.

CRUZ: Today, Donald Trump held a press conference where he apparently lost it.

BASH: Cruz is now stepping up his attacks on Trump, on the stump and in ads.

TRUMP: I am pro-choice in every respect.

UNIDENTIFIED MALE: South Carolina cannot trust Donald Trump.

BASH: Cruz is taking incoming from two opponents calling him a liar.

TRUMP: I have never, ever met a person that lies more than Ted Cruz.

RUBIO: He's liked about my position on marriage.

CRUZ: Donald Trump and Marco Rubio both have the very same pattern. Whenever anyone points out their record, they simply start screaming, "Liar, liar, liar."

(END VIDEOTAPE)

BASH: And it's hard to believe Ted Cruz, that Marco Rubio and even Donald Trump vowed to run a positive campaign and not go after their opponents. But this is what happens had the stakes get as high as they are now, Chris, just four days until the critical South Carolina primary. It's ugly.

CUOMO: Plenty of time for worse, as well. Dana, stay with us.

Let's also bring in our friend of "Meet the Press" fame, David Gregory and CNN special correspondent, Jamie Gangel. It's good to have everybody here.

Let's play a little bit of what President Bush had to say yesterday about establishment. He had a good spin on it. Here it is. (BEGIN VIDEO CLIP)

G. BUSH: You know, I thought it was appropriate to discuss the subject I know a lot about, what it's like to be president. Being a president was a high privilege and the honor of a lifetime. By the way, if serving as president of the United States makes me a part of the so-called establishment, I proudly carry that label.

(END VIDEO CLIP)

CUOMO: Gregory, interesting. On Presidents' Day, you had two presidents out campaigning, both trying to stop insurgent campaigns. You had Clinton, you know, trying to stop the Sanders surge, and obviously, what we saw with George W. Bush trying to help his brother. If you can resist sounding too much like him when you detail for us the impact, what do you think the plus/minus is for Jeb, having his presidential brother by his side?

DAVID GREGORY, FORMER HOST, NBC'S "MEET THE PRESS": Yes, the Bush imitation would come rather easily. But I'm going to restrain myself, my friend. Look, I mean, on the plus side, this is a former president. This is a political figure in President Bush, who's very popular around the country among Republicans, particularly so in a state like South Carolina, 58,000 veterans and a state that he won, of course, back in 2000.

But wow, has the presidential race changed so much since the 2000 contest, when George W. Bush won in 2000. And it really consolidated the race behind him. So look, it's his big brother. It helps because it's a voice of authority. It can really make the case, both for Jeb Bush. It can also make the rebuke against Donald Trump, and Trumpism generally.

That said, I think there are some minuses. There's a contrast in how good George W. Bush is still, as a retail campaigner. I don't think his brother is nearly as good.

Second, I think it's ironic that Donald Trump has reopened the wound and the debate of the Iraq War. But he's done it, and Republicans are going to have to grapple with the lessons of Iraq. The leadership, legacy of Iraq as they think about foreign policy changes like ISIS. And I don't frankly think Jeb Bush has had a great set of answers for those, and I think perhaps we'll hear those in the debates this week.

[07:10:02] CUOMO: All right. So two very good points David is teeing up for us. One is about the dynamic between the men. The other is about bringing back this idea of the reckoning of the war. Let's split them up.

Jamie, let's start with you. You know this family well. The idea of contrasting these two men, do you believe that that's going to be the main takeaway for South Carolina voters, or is it just going to be a boot strapping of the Bush bona fides? I can't think of any more "B's."

JAMIE GANGEL, CNN SPECIAL CORRESPONDENT: Right. Look, I think that the campaign was worried about having these two men side by side. As David just said, former President Bush is a natural up there. He has a lot of charisma. And he's very good at retail politics. There are pictures of him yesterday taking selfies with people. So that comparison the campaign was worried about.

That said, Jeb, I think, had his best speech that he's ever had yesterday. So it certainly upped his game. Will, at this point, the Bush comparison hurt anymore? I think they don't think they have anything to lose at this point.

CUOMO: Jeb said to us in New Hampshire before an appearance here on NEW DAY, I was asking about the family and how it works for me. He looked at me, and he just quickly, YOU KNOW, said without even thinking nothing motivates me more than my family does. I'm all about my family. You have to remember that, you know, politicians are still people.

So now we get to the policies. Donald Trump, has he had another stroke of geniuses, Dana, where he says something you never hear Republicans say. They don't want to relitigate more. But there are a lot of people in that party and independents and centrists and moderates who don't think there was a good case for it. Lying, they take it a little too far. But in this campaign there seems to be no line of decorum. So what is the plus/minus on that?

BASH: You just took the words out of my mouth. There's no question that there has been a growing number of Republicans for years saying, wait a minute. What do we do here with regard to the Iraq War?

But the lying portion of it, that might take it too far. Because what he's saying is that George W. Bush knowingly went into a war that was based on false pretenses. That aside, I think that the other question is the 9/11 question. And whether or not that is potentially as explosive and could backfire against Donald Trump, like many people think.

I mean, look, 9/11 is and was the one area that people, especially Republicans, look back on the George W. Bush presidency with fondness about how he handled himself and how he handled the nation. So that is a very, very risky strategy.

However, having said that, every time we've said Donald Trump is engaging in a risky strategy, I don't know, this could backfire, it doesn't. So who knows?

CUOMO: David Gregory.

GREGORY: Chris, I just think -- look at where we are. This is unbelievable.

In 2000, George W. Bush loses -- gets hammered in New Hampshire, consolidates his candidacy in the race down in South Carolina by winning. His father had done the same thing when he ran.

Here you have Donald Trump who sounds, as Jeb Bush said, like Michael Moore, by essentially saying, against Bush, "You lied, and people died." He is someone who has said he is pro-choice in every respect.

And he is a big front-runner in South Carolina. So you're Jeb Bush. It's great you have your brother. It's great that he's the best surrogate you could have as a former president. It maybe ups your game a little bit. But he is far down in the polls. And whatever happens, he's got to split this establishment vote with Kasich and Rubio.

CUOMO: Here's the case that Donald Trump is making. Let's play it.

(BEGIN VIDEO CLIP)

TRUMP: I had to say I'm sorry. But we weren't safe. The World Trade Center came down, which was the greatest attack in history on this country. So you obviously had the war, which was a big mistake. I mean, few people would say the war in Iraq was a positive. You had him on the aircraft carrier saying all sorts of wonderful things, how the war was essentially over. Guess what? Not over.

(END VIDEO CLIP)

CUOMO: All right. So I'm going to save David Gregory from himself. Because he won't be able to answer as President Bush without slipping into his impersonation of him.

So Jamie Gangel, the first day he's out there, we're going to celebrate it. We missed President George W. Bush. There are fond remembrances of him right now. But then, he's going to get asked a question if he stays out there with Jeb. What do you think of the suggestion that the war wasn't just a mistake, it was an intentional mistake? That there was lying involved, and that 9/11 was ultimately a reflection of your failure to keep America safe. What will President George W. Bush say, in your estimation?

GANGEL: Look, I think he's going to say what he said always in the past, which was -- it was that, you know, we did not see this big a thing coming. He will defend the history of it.

[07:15:13] But that said, I will tell you the Bush campaign, when Donald Trump made that argument really thought that maybe this time Donald Trump had imploded. Because remember in South Carolina there are a lot of military, a lot of veterans. And they thought that that would really turn people off at the polls.

I will say one thing. The Bush family showed a lot of love yesterday for one person in particular. And that's the very popular governor of South Carolina, Nikki Haley. She has remained undecided about her endorsement. But she's indicated that she does want to endorse someone.

She visited with former President Bush and Laura Bush. And you can be sure there was a lot of lobbying going on. Her phone has been ringing off the hook.

So I think that they're hoping -- she has a popularity rating of 80 percent. And if Jeb can get her endorsement going into Saturday, maybe it will give him a little bit more of a lift. But his poll numbers are not great right now.

CUOMO: True. We're going to have to have new numbers coming out soon. CNN's working on them today. Going to have some later this afternoon. Some tomorrow. So we'll see the state of the race as is.

Jamie Gangel, I must say, good channeling of Bush. He slipped my question about the war and went right to 9/11. Well played, well played.

Dana, Jamie, brother Gregory, thank you very much. A quick programming note for the rest of you. You will get to hear the Republican presidential candidates do what is most important, deal with the actual problems, concerns, and requests of real voters in South Carolina tomorrow and Thursday nights, both moderated by our man, Anderson Cooper.

Tomorrow, you're going to get Carson, Rubio, and Cruz taking on real questions from real voters. Then you can have Kasich, Bush, and Trump rounding out the town halls Thursday nights. Both nights are 8 p.m. Eastern, of course, only on CNN.

PEREIRA: All right. A significant step this morning in relations between the U.S. and Cuba. The Obama administration giving the go ahead for an Alabama-based company to build a factory there. That company builds tractors for small farms. It will be the first U.S. company built on Cuban soil in more than 50 years, following the reestablishment of relations with Cuba in late 2014.

BERMAN: A thaw out for millions up and down the East Coast with freezing rain and severe storms causing treacherous conditions on the roads. Meteorologist Chad Myers has a look at the forecast -- Chad.

CHAD MYERS, CNN METEOROLOGIST: John, still some ice in parts of New York, Pennsylvania, West Virginia, Ohio. But it has gone now from 1 degree below zero in New York on Saturday morning all the way down to 50. And so you add those numbers up, and it feels tremendously better. But it also can be still slick and still wet and still dangerous in some spots.

This is the beginning of the end, I think, for the current batch of winter. Because for the next 14 days, we will be above normal in the East after this last bit of snow goes by. Chautauqua County, Cattaraugus County, back on even up into east of Watertown, going to see a little bit of light ice. That's it. This is done. We warm up. The weekend looks great. In fact, they 'll be in shorts across parts of the Deep South, where temperatures will be above 70.

Here we go. We go from 1 below to 48 just in the past 47 hours. And now the very latest update here at 7 a.m., up to 50 degrees in Central Park after what was an ugly weekend.

CUOMO: Chad Everett, thank you very much for the report. I want you to know in advance, the segue I'm making right now has nothing to do with you.

MYERS: So, so dangerous when you do that. CUOMO: I just want you to know right now because I feel like you're going to react.

OK. A Kentucky lawmaker wants men to get written permission from their wives before using Viagra and similar drugs. Democrat Mary Lou Marzian wants to require men to have a signed and dated letter from their partner and to swear on a Bible to only use the drugs for relations with legal partners. The bill is in response to a new state law requiring women to get medical counseling 24 hours before an abortion.

PEREIRA: It made the two of you both chuckle, but it is a point she's trying to make. How -- you know, how intrusive it is for elected officials to mandate that women have other people involved in their medical decisions.

CUOMO: An odd way to get at that point.

PEREIRA: It will get the point across, I think. Don't you think?

BERMAN: How about blank information.

PEREIRA: You want one?

CUOMO: But also, I think that the personal nature, the intimate nature of the decision between ending a life and using Viagra are so worlds apart that maybe she wound up mitigating the point by making it.

PEREIRA: We'll see what happens.

CUOMO: What do you think? Feel free to tweet these two. He's the guy who said he doesn't like Adele.

BERMAN: Come on. All right. President Obama vowing to name a replacement for Supreme Court Justice Antonin Scalia, despite threats from Republicans to look at some of the new names on the short list. That's ahead.

(COMMERCIAL BREAK)

[07:24:18] BERMAN: All right. In just a few hours, President Obama holds a news conference. We should get a window into how he plans to proceed in his attempt to fill the Supreme Court vacancy created by the death of Antonin Scalia. Maybe how hard he's willing to fight over this.

This as most Senate Republicans are now lining up behind their leader, saying a new justice should wait until there is a new president.

Manu Raju is a CNN senior political reporter. He is in Washington. Jeffrey Toobin, CNN senior legal analyst and a former federal prosecutor, is with us here in New York. Before we do anything else, Jeffrey, you have a new name to add to the list here.

JEFFREY TOOBIN, CNN SENIOR LEGAL ANALYST: Jaqueline Nguyen, who is a judge on the 9th Circuit Court of Appeals, former district court judge, former prosecutor in Los Angeles. A fascinating personal story. She was -- she and her family were refugees from Vietnam after the war. She is someone who would make a great story.

CUOMO: What's her disposition from a traditional standpoint?

TOOBIN: It's hard to tell in any sort of detail. She's a -- she was a Democratic appointee. She apparently is a Democrat. But she has not dealt with a lot of high-profile controversial legal issues, either as a district court judge, as a -- or as an appeals court judge.

She seems like a lot of these judges, to be a solid Democrat, excellent credentials. But in terms of her precise political profile, whether a liberal Democrat or a moderate Democrat, it's really hard to say.

CUOMO: A compelling story might be the most interesting facet right there. Because President Obama is not going to get a Supreme Court justice on the court, unless something drastic changes, in the next few months. So how he sets this fight up is what matters.

TOOBIN: Absolutely. And that's why these -- and the stories always matter. You know, the first Hispanic, Sonia Sotomayor. The -- you know, Sri Srinivasan, who we've discussed as a possibility. You have the first Indian-American who's been nominated. Or Paul Watford, who would be the third African-American. President Obama has not nominated any African-Americans to the Supreme Court.

All those very much figure into the mix, because this first, especially this nominee, is as much a political symbol as a prospective justice, given the opportunity.

BERMAN: You know, you could turn to the Republicans who say you were denying the American people this woman, this refugee with the compelling story, you are denying the American people this judge, who you confirmed unanimously.

CUOMO: They need something. Because the politics seem to bring into the conversation fairly obvious and cheap right now. But also familiar. I want to play back to back what we have Senator Schumer saying in 2007 when the Democrats were in the positions the Republicans are right now. And what McConnell, his response was to that situation at that time. Just to give you a little sense of it.

(BEGIN VIDEO CLIP)

SEN. CHUCK SCHUMER (D), NEW YORK: We cannot afford to see Justice Stevens replaced by another Roberts or Justice Ginsburg by another Alito. Given the track record of this president and the experience of obfuscation at hearings with respect to the Supreme Court, at least, I will recommend to my colleagues that we should not confirm any Bush nominee to the Supreme Court except in extraordinary circumstances.

SEN. MITCH MCCONNELL (R-KY), MAJORITY LEADER: Our Democratic colleagues continually talk about the so-called Furman (ph) rule, under which the Senate supposedly stops confirming judges in a presidential election year. This seeming obsession with this rule that doesn't exist is just an excuse for our colleagues to run out the clock on qualified nominees who are needed to feel badly needed vacancies.

(END VIDEO CLIP)

CUOMO: Manu, this is what these guys do. It just depends who has the leverage. So should this really be condemned more than usual, what's going on right now?

MANU RAJU, CNN SENIOR POLITICAL CORRESPONDENT: Well, you're absolutely right, Chris. I mean, every single -- for years and years and years, depends on who's in the minority and who's in the majority in terms of both parties taking opposite sides of the issue to serve that politically.

I mean, what we have seen on the judicial fight is really an escalation of tactics, really one party does something, and the other party kind of one ups the other party. And one of the things that was -- Republicans are now pointing to is that effort by Harry Reid to change filibuster rules back in 2013 to move forward on a number of lower card nominees.

Now, I talked to Lindsey Graham yesterday, who voted for two Supreme Court nominees under presidents -- President Obama's two Supreme Court nominees. But he pointed to that effort to change filibuster rules to say that, look, the president's actually poisoned the well on judicial nominees. We can't trust him anymore. That's one of the things that he risked, the Democrats risked by moving forward around this. And now as they hold off on a Supreme Court confirmation vote now, potentially a year or so or longer. That's only going to escalate that tactic even further. Who knows what will happen when Democrats come into the majority.

So both sides continually used the other's tactics and sort of end up one-upping them.

BERMAN: You know, Manu, one of the things that people have been saying since Saturday is that some of the people you have to look at are these senators, these Republican senators running in blue or purple states. Will they be able to be influenced? The answer this morning seems to be no. I mean, more and more of them are coming in, universally saying that it should wait until next year. So what do you make of that?

RAJU: You know, it's interesting, because look at their statements. What they're saying is, yes, exactly that. They're siding with Mitch McConnell, saying we should -- the president, the next president should decide. But they are not explicitly saying, "We will vote no against any nominee whatsoever." They were stopping short of that. So is Senator McConnell. They want to actually see who the nominee is before taking that position. And if there is potentially a nominee of who could get a little widespread support if possible, consensus nominee, that person exists, then they may be in a much tougher position. CUOMO: Manu, that's...

(CROSSTALK)

CUOMO: ... fairness?

TOOBIN: No, that's not what I've been hearing from McConnell and company.