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Obama Chides Senators to 'Do Their Job' on Court Pick; Obama: 'Trump Will Not Be President'; Apple Opposes Order to Unlock Terrorist's Phone. Aired 6-6:30a ET

Aired February 17, 2016 - 06:00   ET

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

(BEGIN VIDEOTAPE)

BARACK OBAMA, PRESIDENT OF THE UNITED STATES: The Constitution is pretty clear. This will be the opportunity for senators to do their job.

[05:58:51] SEN. JEFF SESSIONS (R-AL), SENATE JUDICIARY COMMITTEE: We're not going to bring this nominee up this year.

UNIDENTIFIED MALE: Take it as death at the time (ph).

SESSIONS: The Democrats are crying and moaning and groaning. It's highly hypocritical.

OBAMA: Mr. Trump will not be president.

DONALD TRUMP (R), PRESIDENTIAL CANDIDATE: He has done such a lousy job as president.

OBAMA: It's not hosting a talk show or a reality show.

TRUMP: Look at our budget. Look at our spending. We can't beat ISIS.

OBAMA: I am not unhappy that I'm not on the ballot.

HILLARY CLINTON (D), PRESIDENTIAL CANDIDATE: We can and must do better.

OBAMA: I know Hillary better than I know Bernie. On the other hand, there may be a couple issues Bernie agrees with me more.

SEN. BERNIE SANDERS (I-VT), DEMOCRATIC PRESIDENTIAL CANDIDATE: We are prepared to fight for change.

(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. It is Wednesday, February 17, 6 a.m. in the east.

And once again, Michaela's keen eye saves us, indeed. This is not Alisyn Camerota...

JOHN BERMAN, CNN ANCHOR: No.

CUOMO: ... no matter how much he insists. It is John Berman.

Up first, "Do your job," says President Obama to Senate Republicans, referring to when he nominates a successor for Supreme Court Justice Antonin Scalia, President Obama saying the Constitution is pretty clear and that he intends to pick an indisputably qualified nominee.

And in a move that pundits should not punish, one key GOP senator now says he isn't ruling out holding hearings.

MICHAELA PEREIRA, CNN ANCHOR: In the meantime, President Obama using a news conference to take on Republican front-runner Donald Trump. The president insists Trump will not be the next president because the presidency is, quote, "not hosting a talk show." His critique of the Republican field did not stop there.

We begin our coverage now with CNN's Chris Frates, live at the White House -- Chris.

CHRIS FRATES, CNN CORRESPONDENT: Hey, good morning, Michaela.

President Obama said yesterday that anybody he chooses to replace Justice Scalia will be indisputably qualified. And despite this election-year slug fest between Senate Republicans and Democrats, President Obama made his expectations clear, that he'll do his job and nominate a replacement and he expects the Senate to do theirs and hold a vote.

(BEGIN VIDEOTAPE)

OBAMA: The Constitution is pretty clear about what is supposed to happen now.

FRATES (voice-over): President Obama again vowing to nominate a replacement for the late Supreme Court justice, Antonin Scalia, lashing out at Republicans who say the next president should fill the seat.

OBAMA: This will be the opportunity for senators to do their job. Your job doesn't stop until you're voted out or until your term expires.

FRATES: In his first comments about the fierce battle brewing over his replacement, Obama said the vacancy shouldn't get caught to the crosshairs of partisan politics.

OBAMA: I intend to nominate somebody, to present them to the American people, to present them to the Senate. I expect them to hold hearings. I expect there to be a vote. I'm amused when I hear people to be strict interpreters of the Constitution suddenly reading into it a whole series is of provisions that are not there.

FRATES: Senate judiciary chairman Chuck Grassley telling Iowa Radio he hasn't decided if his committee will hold confirmation hearings for the president's nominee.

SEN. CHUCK GRASSLEY (R-IA), JUDICIARY COMMITTEE CHAIRMAN: I would wait until the nominee is made before I would make any decisions. In other words, take it a step at a time.

FRATES: But most Senate Republicans are toeing the party line, promising to delay the process until after the election.

SESSIONS: There is no doubt that by following what our leader, Mitch McConnell has said, we are not going to bring the nominee out this year. He's doing exactly what Harry Reid would do if he were in the majority at this time.

The Democrats are crying and moaning and groaning. It's highly hypocritical. Literally, we're in the middle of a voting campaign for president of the United States. And I think it just makes sense to put this off for the next president.

(END VIDEO CLIP)

FRATES: Justice Scalia will lie in repose in the Great Hall of the Supreme Court on Friday, but even as his chair on the bench is draped in black to honor him, the political battle on how to succeed him rages on -- John, Chris.

CUOMO: All right, Chris, thank you very much.

Let's bring in CNN senior legal analyst and former federal prosecutor, Jeffrey Toobin. And CNN presidential historian and professor of history at Rice University, Mr. Douglas Brinkley.

Douglas, let's start with you, just so that we can all have history in context. This is really about politics. That's the argument that we've been forwarding here on NEW DAY.

When you look at the Constitution, when you look at historical precedent, is there any legitimate basis for saying, "We don't do this in the final year of a presidential term. We traditionally don't do this. As a matter of fact, we hold off on these types of appointments and these types of hearings"? Is there any basis for that in fact?

DOUGLAS BRINKLEY, CNN PRESIDENTIAL HISTORIAN: Well, of course not. And that was the point President Obama was making in Rancho Mirage yesterday, that he's doing his job. He has a vacant seat to fill. He plans to nominate somebody. And he wants the Senate to act responsibly.

But as you intimated, this is a heavy political season. 2016 is one of the most brutal moments in partisan warfare in the recent annals of American history. So it's unlikely the president is going to be able to get anybody through this year. But he very well might be able to get a Senate hearing, particularly if he can get Senator Chuck Grassley of Iowa, you know, at least, you know, the bucking of the Mitch McConnell crowd and saying, "Look, maybe we at least need to give -- if Obama picks somebody, a public hearing. We'll have to see on that. BERMAN: You brought up Chuck Grassley. Let's play that sound again from the senior senator from the state of Iowa one more time, just so we know. Because this is new from Chuck Grassley. Play this.

(BEGIN VIDEO CLIP)

GRASSLEY: I would wait until the nominee is made before I would make any decisions. In other words, take it a step at a time.

(END VIDEO CLIP)

BERMAN: Jeffrey Toobin, Mitch McConnell over the weekend said no hearings. Not nothing. There are plenty of other Republican senators saying no hearings. Not nothing. Don't send us a name at all.

Now you have Chuck Grassley, chairman of the Judiciary, saying, "You know what? I'm not ruling out hearings." That's a shift. And, you know, as Chris says, this is not to punish him or not punish him. But it is a shift.

What will the functional value or difference be in actually having hearings on this? May not change the outcome, but it would change at least the environment.

[06:05:14] TOOBIN: Well, it would certainly change the environment a lot, because it would give the nominee a forum to make his or her case. Other -- unless there -- if there are not hearings we're going to have a big, splashy press conference where the president introduces the nominee. And then the story will inevitably kind of fade away, unless there are hearings. Democrats are going to continue to press. But you will not have a focus of attention that hearings -- that hearings would be...

CUOMO: Except for the election. See, I think that -- look, the reason I don't think that we should punish politicians for doing the right thing. You're certainly not doing that. But the Democrats will. You know they're going to come out today and start poking at, you know, Jeff Sessions as proof of weakness within the ranks. And that's a mistake. Because you should be encouraging people to come to the table.

But I think they have high ground, Jeffrey. Here's why. Because I don't...

TOOBIN: Who's "they"?

CUOMO: I think that the Republicans will maintain high ground if they hold hearings, because it's not going to go away, because you're in a presidential year. And the Democrats will keep saying, "They say they're outsiders. Look at how they're abusing the process. They're all the same. They just want obstruction."

So if you have the hearings, you have high ground. You listen to the person out, and you make the case against.

TOOBIN: Think -- the number that keeps -- I keep thinking about in the context of this whole dispute is 14. If Barack Obama's nominee is to get a vote in the Senate, is to, you know, get past a filibuster, he or she has to get 14 Republican senators to vote for him or her. Think about how unlikely that is. Fourteen Republican senators? One would be unlikely. And that's why I just think, you know, whether they are hearings or not, the odds of Obama getting a nominee on the Supreme Court seem very, very slim.

BERMAN: I think you're -- it's an understatement saying it's unlikely that he can pick up 14 Republicans. I think it's next to impossible that he can do so.

TOOBIN: Right.

BERMAN: But -- but, though, it's not impossible to have these hearings. And as Jeffrey says, during an election year, this could be a spectacle the likes of which we have never seen. What does history tell us? Because we've seen some contentious, some you know, headlining Supreme Court hearings before. What would that look like?

BRINKLEY: Well, spectacle is correct. I mean, all eyes would be on the Senate hearings if they took place. The White House would have to have really vetted their choice, knowing that this person -- whoever President Obama picks is going to be a great legal mind, but they're going to be under intense scrutiny. I mean, think about what happened to Clarence Thomas when he came up, and people were starting to look at what movies he watched or some of his past, you know, unusual behaviors, that you can suddenly become the butt of humor in the midst of an election year.

Or somebody is so un-dentable that you actually get people so -- the public says, "Confirm, confirm." That could happen, too.

So it's a -- you can see why Mitch McConnell would like to shut this whole thing down until after the election. Because if you get to the point of the hearing, there may be sympathy for Obama's nominee, and hence, it could help Hillary Clinton or Bernie Sanders' campaign as you go through the summer and early fall.

CUOMO: Jeffrey and Douglas, too, if you have something on this, your number is 14.

TOOBIN: Yes.

CUOMO: Mine would be 4. Not just because that's how many doughnuts I had last night after a particularly stressful episode of "Ray Donovan."

BERMAN: If you go up to 14, you go off of one hand.

CUOMO: I'll tell you, I needed it just to bring myself down. But that's not my point, Jeffrey. My point is this: 4-4. A court evenly divided.

TOOBIN: Yes.

CUOMO: We're hearing more and more from the redoubtable Orrin Hatch -- you're hearing from other Republicans -- that's not a big deal. The court operates just fine 4-4. It's done it in the past. It's done it for a long time. It doesn't matter. They'll just push off some cases.

But they're not pushing off cases. They're seeing big cases in this term where, if they are split, they're going to have to wind up having circuit authority that be very divergent as precedent in this country. So what is your take on 4-4 as something to be worried or not worried about?

TOOBIN: Well, it's a problem. It is not a -- it is not a problem if it goes for a year. I mean, the Supreme Court...

CUOMO: Just to round that number up?

TOOBIN: The Supreme Court is designed to have nine people. It's supposed to have an odd number of people for the obvious reason that you don't want tie votes. But it is true that there have been times in history when a justice has retired or died in office or sometimes a justice is recused in a case. So they can function with eight justices.

Most of the decisions are not 5-4. They are unanimous or close to unanimous. It wouldn't make much difference if there are nine justices in those cases.

But the longest period where there has been an absolute vacancy or a period with no one filled is 391 days. Over a year. But if this term -- if they kick the can into Obama's successor's term, it's going to be longer than 391 days. Because the new president takes office January 20. You don't know that that new president will nominate someone right away. You don't know how long hearings will take. That, you know, pushes it into a year and a half. It's a long time.

[06:10:18] CUOMO: Good perspective. Thank you very much. Douglas, briefly we're going to bring you back to discuss this more throughout the morning. Jeffrey Toobin, as well. Appreciate it -- Mick.

PEREIRA: All right. We have breaking news in the 2016 race. A new CNN/ORC poll out this morning shows the Democrats are in a virtual tie in Nevada just three days from the state's caucus. Forty-eight percent of voters say they'll support Hillary Clinton. Bernie Sanders surging to be right on her heels with 47 percent.

On the Republican side, Donald Trump trouncing his rivals there in Nevada, garnering more support than his nearest three competitors combined. Marco Rubio and Ted Cruz in a race, a very close race for second. Trump also holding a commanding 16-point lead in South Carolina, three days before the GOP primary. Cruz, Rubio, and Bush trailing the front-runner, as you can see.

Trump besting Cruz best among evangelicals with nearly a 2:1 margin. Worth noting, about half the Republican voters in South Carolina have yet to finalize their choice, but it looks like Saturday's wild debate could have cost a bit of a dip in the polls. Now, as for the Democrats, Hillary Clinton leads Bernie Sanders by a

comfortable margin in South Carolina. She has the most support among women and African-American voters, two groups that she will need in her corner in order to clinch the nomination.

But again, more than half of Democratic voters still making up their minds on who they will support.

CUOMO: All right. So President Obama, he went full Teddy yesterday, exercising the bully pulpit at a press conference, exhorting Republicans to hold hearings on the SCOTUS nominee and declaring Donald Trump will not succeed him, even ripping Marco Rubio over immigration. Unusual for President Obama. What went into it? That was its impact?

CNN's Athena Jones live from Beaufort, South Carolina.

What do you know?

ATHENA JONES, CNN CORRESPONDENT: Good morning, Chris.

Well, it's an all-out brawl between the GOP candidates here in South Carolina, and now you have the president throwing some punches of his own.

(BEGIN VIDEOTAPE)

OBAMA: I continue to believe Mr. Trump will not be president.

JONES (voice-over): Weighing in just days before the South Carolina primary, President Obama confident Donald Trump won't win the White House.

OBAMA: I have a lot of faith in the American people. And I think they recognize being president is a serious job. It's not hosting a talk show or a reality show.

JONES: Obama blasting the billionaire Tuesday evening saying Trump panders and lacks even basic foreign policy knowledge.

OBAMA: It requires being able to work with leaders around the world in a way that reflects the importance of the office and gives people confidence that you know the facts and you know their names and you know where they are on a map and you know something about their history. And you're not just going to play to the crowd back home.

JONES: Not one to keep quiet...

TRUMP: He has done such a lousy job as president.

JONES: ... the GOP front-runner shot back an hour later.

TRUMP: You look at our budgets, you look at our spending. We can't beat ISIS. Obamacare is terrible.

You're lucky I didn't run last time when Romney ran, because you would have been a one-term president.

JONES: But Obama didn't contain his criticism to Trump's polarizing rhetoric. His rivals were hit, too.

OBAMA: If you look at what the other Republican candidates have said, that's pretty troubling, too.

JONES: The president specifically calling out Marco Rubio for his previous support of an immigration bill back in 2013.

OBAMA: You've got a candidate who sponsored a bill that I supported to finally solve the immigration problem, and he's running away from it as fast as he can.

(END VIDEOTAPE)

JONES: Now no response so far from Marco Rubio.

Meanwhile, Jeb Bush is getting some attention for a tweeted photo of a handgun engraved with his name. The caption, "America." "The New York Daily News" having some fun with that picture with the headline "Dolt .45." And the caption, "Desperate Jeb Bush gets ripped for tweet suggesting guns are America" -- Chris.

CUOMO: All right. Athena, thank you very much. Appreciate the reporting.

We have a quick programming note from you. Big, big night. The Republican presidential candidates get to make their last pitch to a whole audience of South Carolina voters in a live town hall that starts tonight and extends into tomorrow on CNN. Our man, Anderson Cooper, guiding you along as real voters put their concerns. And you get to see how the men who want to be president respond. The first night, look on your screen: Carson, Rubio, Cruz. The next night: Kasich, Bush, Trump. All beginning at 8 p.m. Eastern only on CNN, J.B.

[06:15:14] BERMAN: So nice we're doing it twice.

Breaking news this morning, Apple refusing a judge's order to help the FBI unlock a phone used by one of the San Bernardino terrorists. Tech giant CEO Tim Cook calls the move chilling while undermining the security of its users. What's going on here?

CNN justice reporter Evan Perez live in Washington with the very latest -- Evan.

EVAN PEREZ, CNN JUSTICE CORRESPONDENT: John, Apple says that it is fighting the judge's order to help the FBI break into a cell phone that was carried by one of the two terrorists who killed 14 people in that December attack in San Bernardino. The FBI says that it needs Apple's help to get data from an iPhone C -- 5C that was owned by San Bernardino County Health Department, and it was assigned to Syed Farook, who was one of -- who was one of their employees. The iPhone has a security feature that erases data if the password set by the user is entered incorrectly 10 times. Here's FBI director James Comey discussing the issue recently.

(BEGIN VIDEO CLIP)

JAMES COMEY, FBI DIRECTOR: It is a big problem for law enforcement, armed with a search warrant, when you find a device that can't be opened, even though the judge said there's probable cause to open it.

As I said, it affects our counterterrorism work. You know, San Bernardino, a very important investigation to us. We still have one of those killer's phones that we have not been able to open.

(END VIDEO CLIP)

PEREZ: The Apple CEO, Tim Cook, says that this isn't just about a terrorist's phone. The government, he says, wants Apple to build a back door that would affect each and every one of us. Cook says, quote, "The United States government has demanded that Apple take an unprecedented step which threatens the security of our customers. We oppose this order, which has implications far beyond the legal case at hand."

And, Chris, we expect this fight to go all the way to the Supreme Court. CUOMO: A very interesting segue there. What will that court look

like when this case finally gets there? Evan, thank you very much.

All right. Let's take a quick break. We have three days until the GOP primary in South Carolina and the Republican candidates piling on each other. But there's a new dynamic. Look at your screen. Who won the war of words in Trump v. Obama. Our panel will discuss, but you decide, next.

(COMMERCIAL BREAK)

(BEGIN VIDEO CLIP)

[06:21:17] OBAMA: I continue to believe Mr. Trump will not be president. And the reason is because I have a lot of faith in the American people. And I think they recognize that being president is a serious job.

(END VIDEO CLIP)

BERMAN: All right. A stunning news conference from President Obama naming names in the presidential race on both sides, talking way, way more about specific candidates, for example, Donald J. Trump, than you historically hear any president do. And finally, opening the door wide, wide open to the notion that he might endorse in the Democratic race. Something again, you never, never really see a sitting president do.

Here with us to discuss, Ron Brownstein, CNN senior political analyst and a senior editor at "The Atlantic." And Douglas Brinkley is CNN historical and history professor at Rice University. Douglas, just from a historical perspective, I'm not overblowing this.

Presidents -- sitting presidents during a primary, they don't normally weigh in like this.

BRINKLEY: No. It's very unusual, and you have to ask why did President Obama do this?

I think part of the answer is he's out there in Rancho Mirage. And all of these Southeast Asian leaders are going up to him constantly: "Can Donald Trump really be president? Are you guys crazy in America? Is this really the real thing? And so the president wasn't just interfering, I think, in South Carolina politics. He was addressing a world community, global journalists, if you would like, saying, "It's my opinion. And I'm someone who's won the White House twice, that this guy will not be able to win because the American people don't want somebody who's a climate denier, who's a bigot, who has somebody that's irrational, that has his fingers on the nuclear codes, on and on and on." It was quite -- a very pointed message that Barack Obama was telling the world that Donald Trump is not fit for command.

CUOMO: Well, and yet, Ron Brownstein, as I was just discussing with J.B. during the break while watching him eat his cottage cheese with very thin-sliced pineapple. He was saying that this probably winds up helping Trump. And obviously, President Obama is very savvy. So why do this? Why fan the flames of the Trump train to mix metaphors?

RON BROWNSTEIN, CNN SENIOR POLITICAL ANALYST: Well, I think, first of all, it certainly doesn't hurt him in a Republican primary.

Look, there's history between them. Obviously, Donald Trump was, you know, a leading voice questioning President Obama's birth. I was at a White House Correspondents' Dinner a few years ago where the president, with Trump in attendance, delivered an extended and lacerating riff on Donald Trump.

But you know, I would say this is an escalation, but it is not unprecedented for presidents to want to be involved in the race to succeed them. I remember in 1988 the most defining line of the Republican convention was Ronald Reagan rebutting the Democrats when he said, "We are the change."

And in 1999, Bill Clinton jabbed George W. Bush over the claim that he was a compassionate conservative, which was a Republican analogue to his New Democrat.

What's unusual here is how explicit this was, how early it was, and how many candidates the president addressed. And I think it is just part of the general escalation that we are seeing, the breaking down of all the boundaries of what has previously limited political combat. You know, you see this week on the Supreme Court. It's just part of the same upward spiral that is redefining American politics year after year.

BERMAN: He hit Marco Rubio, though not by name, on immigration. He hit Cruz, though not by name, on the idea of originalism and a Supreme Court nominee. And he hit Donald Trump very much by name on a wide range of subjects. And as Chris was saying, Donald Trump was only all too eager to respond. Let's just play a little bit of sound of Donald J. Trump.

(BEGIN VIDEO CLIP)

TRUMP: He has done such a lousy job as president.

This man has done such a bad job. He set us back so far. For him to say that is actually a great compliment.

(END VIDEO CLIP)

[06:25:07] BERMAN: He's smiling, Ron, because he knows that criticism from President Obama helps you in a Republican primary.

BROWNSTEIN: Right. It elevates him. And look, as Chris may have been suggesting, Democrats still believe that Trump is beatable in a general election, that he has alienated the growing elements of society: millennials, minority voters. And so, in that sense, maybe there is kind of like, you know, a Zen master Judo here, going -- you know, trying to -- trying to elevate Trump.

But I do think it's deeper than that. I think it is, you know -- I think the president is -- look, is signaling that he is going to be involved in the campaign to defend him.

And by the way, he's on the ballot whether he likes it or not. In 1988, 88 percent of the people who disapproved of Ronald Reagan on his way out the door voted Democratic for president. In 2000, 88 percent of the people who disapproved of Clinton out the door voted for Republican for president. And in '08, two-thirds of the people who disapproved of Bush voted for Obama for president. Regardless of the president's posture, he is on the ballot. And I think what we have seen early on and I'm sure we're going to see all year long is that he is going to be engaged in that fight to defend the White House and defend his legacy.

CUOMO: Douglas Brinkley, give us some context on what J.B. was referring to earlier, about the uncharacteristic and somewhat unprecedented move of a sitting president endorsing in the successive election. Let's listen to what the president said about that.

(BEGIN VIDEO CLIP)

OBAMA: Ultimately I will try to have an opinion on it based on both the -- been a candidate of hope and change, and a president who's got some nicks and cuts and bruises from getting stuff done over the last seven years.

(END VIDEO CLIP)

BERMAN: I've got to say, I gasped when he said that. It seemed to me, Douglas, he was saying he could very well endorse a Democratic primary.

BRINKLEY: Yes. And I mean, I think he's given every indication that he's really for Hillary Clinton. He's constantly reminding us what a great secretary of state she was. He's thinking -- gosh, I mean, look at what Hillary Clinton does every moment. She's wrapping herself around Obama's legacy. She's doubling and tripling down and saying, essentially, "I'll be like Barack Obama."

And he's going to be a potent weapon for the Democratic Party, Barack Obama, come fall, because he has an approval rate in the African- American community around 90 percent. So when he gets activated as a surrogate in the fall, it's really going to help Hillary Clinton particularly in that moment in time.

But right now, I mean, he wants to make sure that Obamacare continues. And Hillary Clinton's the best chance of getting elected and keeping his signature piece of legislation alive, becoming like a birthright in America.

CUOMO: The next turn will be if they really delay this appointment for a long time, on the court. And if there's -- the election comes, and if it's Hillary Clinton, imagine if they start raising the name Barack Obama in terms of people she might nominate for that position.

BERMAN: They've already asked. They've already asked her.

CUOMO: That would be really interesting.

BERMAN: All right, guys, thanks so much -- Michaela.

PEREIRA: Well, this next story may have Hillary Clinton barking again but for a good reason. We have a winner at the Westminster Kennel Club Dog Show. You'll meet America's new top dog, from California, BTW.

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