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Sandra Day O'Connor: Obama Should Nominate; Interview with Sen. Angus King; Will Senate Hold Nominations for Obama's Pick?; Apple vs. FBI; Cruz Dares Trump to Sue Over Abortion Ad; Rubio Nabs Endorsement of S.C. Governor Nikki Haley. Aired 7:30-8a ET

Aired February 18, 2016 - 07:30   ET

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

(COMMERCIAL BREAK)

[07:32:35] CHRIS CUOMO, CNN ANCHOR: Former Supreme Court Justice Sandra Day O'Connor speaking out aboutthe political fight to appoint a new Supreme Court justice and she is not being kind to Republicans.

(BEGIN VIDEO CLIP)

UNIDENTIFIED MALE: It's unusual to have an opening in an election year.

SANDRA DAY O'CONNOR, FORMER SUPREME COURT JUSTICE: It is.

UNIDENTIFIED MALE: And so, there's been a lot of debate --

O'CONNOR: And it's unfortunate. That creates too much talk around the thing that isn't necessary. I mean --

UNIDENTIFIED MALE: So when you hear one side saying that they'd like to wait until the next president is in office to appoint a justice, what do you think about that?

O'CONNOR: I don't agree. I think we need somebody there now to do the job, and let's get on with it.

(END VIDEO CLIP)

CUOMO: Let's talk to a senator who will be in the mix on this. Sen. Angus King, an independent from Maine. Serves on the intelligence and armed services committee. It's good to see you, as always, senator. A couple of topics for discussion today. People keep referring to the constitution. This isn't really about the constitution. We know the president has authority and is really -- the word is shall in the constitution. That he is supposed to nominate someone during his term. What's going on here?

SEN. ANGUS KING (I), MAINE: Well, of course, what's going on here is a lot of politics, Chris. There are a lot of words and phrases in the constitution that you can argue about that are subject to interpretation. Long, windy law review articles, court cases, but four isn't one of them. The president serves for a term of four years, not three years and one month. And, I think the president has a constitutional obligation to nominate somebody and the Senate has an obligation to take it up.

You pointed out that the article 2, section 2 says shall. The president shall nominate. We've got an opening on the court. I think Sandra Day O'Connor made a very practical point. Let's fill the vacancy so the court can fully function and get on with it.

CUOMO: The country is split on this. The country is split on everything and the split is down along the partisan lines, as expected. The feeling is the best case scenario here is President Obama nominates somebody and the Republicans decide to have hearings, but there's no way he gets a thumbs up on anyone he picks. Is that what it seems like to you?

KING: Well, you know, that's what I'm hearing, but I'm surprised people can make that judgment before they even know who the nominee is.

[07:35:16] I mean, it may be somebody that -- for example, one of the recent nominees to the D.C. circuit got voted 97-0, so it may be that he picks a nominee that's so eminently qualified that it would be very hard to explain a vote against them, other than politics. So, you know, I keep hearing that but there was this rush of comments in the first couple of days. We're not going to hold hearings. We're not going to vote. We're going to delay. And some of the folks have sort of moved a little back from that as I think people have calmed down a little bit. But, again, this is a pretty straightforward provision of the constitution --

CUOMO: Right.

KING: -- and I like to fall back on what that says.

CUOMO: Right. But, you know, there is this -- I don't know. I don't know. I don't want to be too strong about it but there is this ruse, let's say, that you pick a judge who's kind of down the middle and you don't know where he or she really is politically, and it's just not true. I mean, look who we're replacing, Antonin Scalia. He worked for Ford, he worked Nixon. You know, the politics were there. Sandra Day O'Connor -- is it really a surprise that she's supporting the Democratic president's proposition on this? These are political people you wind up putting in these positions. Is it time to just drop that pretense?

KING: Well, I don't think it's fair to characterize Sandra Day O'Connor. She was a Republican.

CUOMO: Right.

KING: She was appointed by a Republican president.

CUOMO: But you know where she was in the court. You know where she seemed to be.

KING: Yes, of course. Yes. She was generally a swing vote. But, you know, this is -- of course we have these debates and of course there are politics involved and where the position of the judges are is important. But how we proceed on something like this -- back in 1991 Clarence Thomas was nominated. There was huge opposition, there was huge support, there was pressure on both directions.

George Mitchell from Maine, by the way, who was the majority leader at the time, refused to mount a filibuster. Clarence Thomas was confirmed 52 to 48. Mitchell could have stopped it. He could have put a filibuster in that -- he was under pressure to do so. He said that's not the right thing to do, typical of George. And we went ahead and had a vote. And that's the nature of our system. People say, well, the president should decide. The people should decide. Well, the people elected this president --

CUOMO: Right.

KING: -- a little over three years ago, and --

CUOMO: But the politics were --

KING: -- and should have his call.

CUOMO: The politics work both ways on this, Senator.

KING: And they ought to work. They ought to work both ways. I agree.

CUOMO: Well, but that would -- but that, in this current situation, will militate in favor of locking up the process. We all know what Chuck Schumer said back in 2007. You now have President Obama saying he regrets that he voted for a filibuster on the Alito nomination when he was a senator. This is what these guys do. You're right. I'm not painting Sandra Day O'Connor as a lefty. I'm just saying that the people who they wind up putting in place -- it's all about politics and it always has been. Why create a different standard now?

KING: Well, there have been eight -- I did a little homework yesterday. There have been eight Supreme Court justices approved in -- I'm sorry -- eight nominated in election years, six approved, since 1900. The last one was in '88 at the last year of Bush's term -- Anthony Kennedy, who by the way wrote the Citizens United opinion. He was confirmed in the last year of Reagan's presidency. So, you know, the precedents go both ways.

Of course you're right. The politics are important, and I'm not saying that a Republican senator has to vote for whoever Obama nominates. I mean, I would never say that. But I do think -- I'm just saying we're not even going to have the process. We're not going to hold hearings. We're not going to vote. We're not even going to let it come to the floor. It would end up being more than a year. I think it's pretty troublesome.

CUOMO: Give me a quick take on what's going on with Apple. Where do you think the line is between what you require a company to do when it comes to helping law enforcement?

KING: Well, I think a company has to respond to valid subpoenas and warrants. On the other hand, we ought to be clear what the FBI is asking Apple to do in this case. They're asking Apple to modify their own software. They're asking Apple to create a key that does not currently exist, and I've got a real problem with that.

This is a very complicated issue. We've been talking about in the intelligence committee with Mr. Comey, the head of the FBI, for over a year. Everyone concedes that this is very complex, and to suddenly go into a single federal district judge based on a 1789 all writs act statute strikes me as the wrong way to find this balance. It's not an emergency. I think this is one that's going to take a lot of debate. There are a lot of problems with this.

[07:40:32]

If the FBI, in this particular case, can make Apple open up this phone, what's to stop a D.A. in North Carolina on an OUI from doing the same thing, or somebody in a burglary in Oklahoma? It's a serious precedent, and there's an old saying in law school -- hard cases make bad law. And this is a hard case. It's a terrorism case. But, I don't want to see law made that would open up the personal information of every American to the government, or once that key is made it can end up in the hands of hackers.

What if China says, well, if you're going to sell iPhones here, you've got to do the same thing? What if this were Samsung that's based on South Korea? Could a U.S. court tell them? I mean, there's no end of complications of this and so I think we need to slow down and really consider the policy. This is not something that I think we're going to be able to solve in a single action in a district court in California.

CUOMO: Articulating well the slippery slope involved here. Sen. Angus King, independent from Maine, thank you as always, sir.

John.

JOHN BERMAN, CNN ANCHOR: The mudslinging getting muddier in the Republican South Carolina primary. Donald Trump tells Ted Cruz, I will sue you. Ted Cruz tells Donald Trump, no, I will depose you. So, will Donald Trump agree? We'll ask one of his key advisors next.

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[07:45:48] BERMAN: All right. Listen to what has happened on the campaign trail. Donald Trump says he will sue Ted Cruz over campaign ads. Ted Cruz tells Donald Trump, no, you don't sue me. I depose you. L.A. Law meets the West Wing all at once, all with the CNN town hall tonight where we will hear directly from Donald Trump. Until then we have the next best thing.

Sam Clovis, the national campaign co-chair and policy advisor for Donald Trump. He joins us now. Mr. Clovis, great to have you here with us. Let me play you what Ted Cruz said last night in the CNN town hall when asked about the threats from Donald Trump. The letter that Donald Trump sent. The cease and desist order, saying stop airing these ads about me. This is how Ted Cruz responded.

(BEGIN VIDEO CLIP)

SEN. TED CRUZ (R-TX), PRESIDENTIAL CANDIDATE: I'll confess, I laughed out loud. This has not been a typical race by any sense, and I don't think anyone is surprised that Donald is threatening to sue people. He's done that most of this adult life. Most of the words in the ad are his own words on national television, and his argument in the letter is running his own words was defamation.

(END VIDEO CLIP)

BERMAN: Sam Clovis, hopefully, you're back with us right now. Sam, you have an opportunity to make news right here. Will Donald Trump agree to be deposed by Ted Cruz?

SAM CLOVIS, TRUMP NATIONAL CAMPAIGN CO-CHAIR, POLICY ADVISOR: I have no idea. I mean, this is a legal process that's very much in the preliminary stages and we'll have to wait and see how this plays out. So, I have no idea.

BERMAN: Would you advise Donald Trump, the candidate you're working for, to allow himself to be deposed?

CLOVIS: I'm a lawyer. I don't get into those. The lawyer aspect of this -- I'm a policy advisor and we're trying to run a campaign across the United States. And so, this is one aspect of the campaign, and we leave it to our incredibly strong legal minds that we have out there.

BERMAN: One of the things that Donald Trump is suing is claims in the Ted Cruz ad. Ted Cruz says in the ad that Donald Trump used to be pro-choice. Is that true?

CLOVIS: Well, I think -- the record is there, but I think the video's 17 years old and I think that that's probably the case there. He probably was at one time pro-choice. I think if we remember, Ronald Reagan was pro-choice. Ronald Reagan, in 1967, signed one of the most egregious abortion bills when he was governor of California, and certainly had a change of heart later on like a lot of people do. I think as we get older we start to see the world a lot differently. We start to push back away from the desk a little bit and we start to have a different perspective. And I think that's certainly what's happened with Mr. Trump.

BERMAN: I think candidates and human beings should be allowed to change their positions and evolve over time, for sure. That's not exactly what the issue is here. The issue is what was said and not said, specifically, by these candidates over time in the campaign. So let's talk about Planned Parenthood. Again, you're a policy advisor to Donald Trump --

CLOVIS: Right.

BERMAN: -- and we're trying to get to the bottom of his policy on Planned Parenthood.

CLOVIS: Sure.

BERMAN: Does Donald Trump think that Planned Parenthood does some wonderful things?

CLOVIS: Well, of course he does. And Planned Parenthood, if you are able to separate the $500 million that they get from the federal government out of there -- what they do on the abortion front, I think it would be an interesting discussion, but we're not able to separate that. So we have Planned Parenthood who is one of the largest abortion providers in the country, and abortion is -- Mr. Trump's opposed to abortion except with some exceptions.

And I think that if we were able to separate that money then we would have a different discussion about Planned Parenthood. You know, women's healthcare issues are very important and have been very important to Mr. Trump. And I think that when you look at it -- take a look at this veterans plan where he makes specific mention of dealing with our mounting number of female veterans.

The whole notion of -- taking a look at what he's done for his employees -- the tens of thousands of employees. And most of, you know -- a lot of which are women, and making sure that their healthcare issues are met. So I think that this is really -- what we're talking about is a much larger picture here about taking care of women's healthcare issues. But, abortion should not be part of that and we shouldn't be funding with public money. We should not be funding an organization that does abortions.

BERMAN: All right, Sam. I want to ask you about the current state of the race right now because there's a brand new poll out just moments ago from CBS news which shows Donald Trump, nationally, out in front 35 percent to 18 percent for Ted Cruz. Now, there was NBC news-Wall Street Journal poll which showed something different. It actually showed Ted Cruz out in the lead. I'm going to ask you hardest question of this interview. Which poll do you think is correct, advisor to Donald Trump, Sam Clovis?

CLOVIS: Well, I take a look at what the consistent polling numbers have been and I take a look at the methodology. I'm really struck by the NBC-Wall Street Journal poll. I looked at some of the crosstabs yesterday. That's one of the things I do is I take a look. I'm kind of a closet mathematician so I look inside the numbers, and I was struck at some of the crosstabs in the Wall Street-NBC poll, and they're not comparable to any of the others. The weighting was difficult, the sample size was small. It was really -- it struck me as perhaps an outlier because most of the other polls have been very consistent with the poll you just reported.

[07:51:04] BERMAN: Sam Clovis taking the brave position of the poll that shows your candidate out in front is the correct poll. Sam, always great to talk to you. Thanks so much.

CLOVIS: Thanks, John.

BERMAN: All right. Do not forget to tune in tonight to CNN town hall. Tonight we have John Kasich, Jeb Bush, and Donald Trump at the CNN town hall in South Carolina, moderated by Anderson Cooper. It all begins at 8:00 right here on CNN. Michaela? MICHAELA PEREIRA, CNN ANCHOR: All right, John. Senator Marco Rubio stealing the spotlight during last night's CNN town hall. Is he on track to surge in South Carolina? Rubio supporter and former New York governor George Pataki happens to be in our green room. We'll talk to him live, next.

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[07:56:20] CUOMO: We now know it is the senator from Florida, Marco Rubio, who gets the coveted endorsement from Nikki Haley, the governor of South Carolina. So is he the man to bring the party together? We are also getting news that Rubio says he's going to do a barnstorming of South Carolina with three big names there. Trey Gowdy, Sen. Scott, and of course, Gov. Haley. Is this the moment that the party's been looking for?

Let's ask Gov. George Pataki, former 2016 Republican presidential candidate, and of course, a former 3-term governor here in New York, supporting Marco Rubio for president. Let's start off at the beginning, governor. Why? Why Rubio?

FMR. GOV. GEORGE PATAKI (R), NEW YORK: You mentioned how is Rubio the person who can unite Republicans. I think we saw last night Marco Rubio is someone who can unite Americans, and that's what we have to do. We have politicians in both parties -- people like Donald Trump, dividing people for their own benefit -- their own political benefit. Marco Rubio does the opposite. He wants to bring Americans together, and to me, we have a common destiny and he's the right person to lead America.

CUOMO: So let's test it, OK, because obviously that's what you want to do. You say you're not just here to throw out his name.

PATAKI: Right. That's right.

CUOMO: You want to fight for him all the way through. All right, good. Saturday night was a bad night for him, not just because it was a debate performance. You were in the business a long time. You've been in a lot of big moments. You've never had anything like that happen to you where somebody was coming at you and you seemed to freeze up. That didn't give you pause about what happens to Marco Rubio in tough moments?

PATAKI: No, it really didn't. And, subsequently, there have been other debates where Marco's performed extremely well. I think the media really blew it out of proportion. Yes, he responded to an attack in one particular way, but it didn't trouble me. He has the vision and he's expressed it time and again, particularly on foreign policy. And I think he came across last night in that town hall as someone who Americans can identify with. He's one of us. He doesn't come from a country club background. He doesn't come from privilege. He's earned everything he's gotten and I'm appreciative of that.

CUOMO: So when you look at him last night in the town hall what do you see that you believe a Jeb Bush, a John Kasich, a Donald Trump, that none of them can match? PATAKI: Well, I think two things. Well, actually three. First of all, I think he came across as a decent human being. He told the story about as a 7-year-old, kids making fun of him because of the Cuban Mariel boatlift, and that to me was very moving that his parents had the vision and the trust in America to say it's not the kids fault. This is America. Don't worry about it. You can achieve whatever you want. And I think that is a story and a background that others don't have, particularly a Donald Trump, or a Jeb Bush, or a Hillary Clinton, that people can relate to.

The second is he didn't demonize others. He didn't go on the attack. He didn't come across as a good prosecuting lawyer. He came across as someone who loves this country and believes in it. And finally, and to me, extremely importantly, keeping America safe and understanding foreign policy. He has that experience. From his experience in the Senate, on the foreign affairs, on the intelligence committee, and he's laid out to me the best agenda to protect America.

CUOMO: You're in a different position now, but when you were on the campaign trail and for a long time when you've discussed the relevance in politics, you say you've got to have experience, you've got to have run something. Being the governor matters. There's a reason that is a position that propels you to higher offer more than senator does. That's the position that Marco Rubio's in. He's a freshman senator. He doesn't have a lot of legacy time in government at all, let alone showing he can run anything.

PATAKI: Well, he has run things. He ran the Florida House. He was the speaker, which is a leadership executive position. And he also, in the Senate, has done things that others didn't do. I'll just give you one example. He got into legislation, working in a bipartisan way -- legislation that defunds the taxpayer unlimited bailout of the Obamacare state exchanges. That is one of the most important domestic pieces of legislation in the last eight years signed by President Obama. So he has shown leadership. He has shown the ability to work across party lines and get things done. That's what a governor does. That's what he did.

CUOMO: All right. So one other point of pushback. You say he's going to unify us.

PATAKI: Right.

CUOMO: Not just the country, and not just the party, but the country.

PATAKI: That's right.

CUOMO: All right. So you take a couple of issues and you get to that line. You didn't do this in your race, but the -- how do I make them happy on the base, and then how do I make them happy in the general?

PATAKI: Correct.

CUOMO: His position on abortion is designed for the base. His position on global warming -- I don't know who it's designed for but you know that he openly says I'm not a scientist. I'm going to reject the science. You know that issue very well. You spent a lot of time on it. You know what scientists say about it. How are those unifying principles?

PATAKI: I think they're deeply-held principles and I think Americans don't expect that someone who brings us together is going to agree with each other on every single issue. But they do think that we should have respect for people who disagree. And on the issue -- you mention abortion. Sen. Rubio and I don't have the same position on that, but I understand that it is a heartfelt position. A deep religious faith that leads him in that position, and I respect that. But most importantly, Chris, I know that Marco Rubio is a constitutional conservative. He isn't going to try to impose his wishes on the American people. He's going to respect the constitution and the rule of law.