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Titanic Fight Begins Over Supreme Vacancy As Breyer Retires; China Warns U.S. to Stop Interfering in Olympics, Taiwan; Russia Says, Putin Has Read U.S. Response, Won't Rush to Judgment. Aired 7-7:30a ET

Aired January 27, 2022 - 07:00   ET

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

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[07:00:00]

BRIANNA KEILAR, CNN NEW DAY: Hello. I'm Brianna Keilar with John Berman on this New Day.

A seat on the Supreme Court is about to open up, paving the way for a historic replacement. And overnight, China firing off strong words to the United States, telling the secretary of state directly to stop messing with the Olympics.

JOHN BERMAN, CNN NEW DAY: After flouting New York's vaccine rules, Sarah Palin is dining out again, this time days after testing positive for COVID.

And the bomb cyclone coming to a weekend near you, a snow storm with the power of a hurricane rolling toward the northeast.

Welcome to our viewers in the United States and all around the world. It is Thursday, january 27th. I'm John Berman with Brianna Keilar.

Just a few hours from now, the fight officially begins to fill the next vacancy on the nation's highest court. President Biden and Supreme Court Justice Stephen Breyer expected to officially announce Breyer's retirement at the White House. Obviously, this has major historical and political implications.

So, here's a look at the Supreme Court vacancy by the numbers. 108 of the 115 U.S. justices have been white men, the other seven, two black men and five women.

KEILAR: It's been 28 years since then President Bill Clinton and Breyer showed off their running legs in short-shorts.

Just another reason to love the '90s. 28 years since then-Senator Biden presided over Breyer's nomination.

BERMAN: 35 years since then Senator Biden presided over the bloc nomination of Ronald Reagan's pick, Robert Bork, six years since former President Obama announced now Attorney General Merrick Garland to fill Antonin Scalia's seat. That didn't work out.

KEILAR: 1,239 days since one of the most heated confirmation hearings in history.

(BEGIN VIDEO CLIP)

UNIDENTIFIED FEMALE: did you consume alcohol during your high school years?

JUSTICE BRETT KAVANAUGH, SUPREME COURT: Yes. We drank beer, my friends and I, boys and girls. Yes, we drank beer. I liked beer. Still like beer.

(END VIDEO CLIP)

KEILAR: A good day for beer. 151 days until the end of the current SCOTUS term when Breyer is expected to exit bench left.

BERMAN: 701 days since then-Candidate Joe Biden promised to nominate a black woman to the bench.

(BEGIN VIDEO CLIP)

JOE BIDEN, U.S. PRESIDENT: I'm looking forward to making sure there is a black woman on the Supreme Court to make sure we, in fact, get every representation.

(END VIDEO CLIP)

BERMAN: Zero days for some of the right to criticize Biden for that promise and argue liberals bullied Breyer out of his seat. A majority of votes needed to confirm, which, if everyone votes, could mean 51 and could end up requiring a tie-breaker from Vice President Harris.

KEILAR: And here are the number of days from nomination to confirmation for previous picks. The shortest, of course, 30 takes for Amy Coney Barrett, the longest, 106 days for Clarence Thomas, 287 days until the midterm elections. So, here we go.

BERMAN: Joining us now, Justice Correspondent for The Nation Magazine, Elie Mystal, and Contributing Editor at TheGrio, Sophia Nelson, she was the first black woman to serve as a House Republican Congressional Committee Investigative Council and she's the author of Black Woman Redefined, Dispelling Myths and Discovering Fulfillment in the Age of Michelle Obama.

And, Sophia, you also have just written an article on the importance of Joe Biden's promise to nominate a black woman to the bench.

SOPHIA NELSON, CONTRIBUTING EDITOR, THEGRIO: Yes. I mean, good morning. This is a historic moment for our country. And my hope is that some of what we pundits are talking about right now about whether or not the nomination will be smooth, first of all, we have to find out who the nominee is. But I do hope that Republicans, like Mitch McConnell and others, will actually see this moment and resist their darker impulses that we have seen throughout the last couple of years relative to Supreme Court nominees and really just look at the qualifications and credentials of whoever this woman is going to be. We know she's going to be a black woman. Anybody that's known for any length of time knows that when I was a little girl, I used to run around saying I wanted to be the first black female Supreme Court justice. That won't be me. But I'm excited that someone who looks like me will be the nominee. So, I think this is a great moment for America. . KEILAR: Elie, who are you looking at as the best pick here?

ELIE MYSTAL, JUSTICE CORRESPONDENT, THE NATION MAGAZINE: Yes. Look, Biden has a deep batch.

[07:05:00]

And that's one thing, and I hope we get into some more of the bad Republican arguments that are being made. But if you are concerned about qualifications, you are not going to get more qualified people than the bench that Biden has to make this pick, even if he focuses on one particularly historically underrepresented group. The leader in the clubhouse right now is probably Ketanji Brown Jackson. She's a D.C. Circuit judge, recently confirmed by the Senate to fill Merrick Garland's seat on the D.C. Circuit, with 53 votes in the Senate. That included Susan Collins, Lisa Murkowski and Lindsey Graham across party lines to vote for her.

She has a gold plated resume, Harvard College, Harvard Law School, she led the U.S. Sentencing Commission before she was a judge for eight years, more experience on the bench than Amy Coney Barrett. So, if you are looking for qualifications, that's one black woman that is as qualified as you can be for the job. And there's a deep bench of others with similarly sterling qualifications, Leondra Kruger, Editor of the Yale Law Review, J. Michelle Childs, Princeton, Yale and longtime federal district court judge.

Sorry. Childs is the one who went to the University of South Florida and the University of South Carolina for her law degree, which would be interesting because right now on the Supreme Court, the three schools represented are Harvard, Yale and Notre Dame with Amy Coney Barrett. Childs would be the first woman, person of the court from a state school and quite a long time, which Scranton Joe might like as well. So, again, lots of qualifications, lots of accomplishments on Biden's bench for this pick.

BERMAN: Sophia, how important should age be here? Because it seems to me that's the one thing that Biden can control here beyond obviously the pick and the credentials, and he said he's going to nominate a black woman. But by picking a young justice, he guarantees that person would stay there for all the longer. Clarence Thomas was 43 and you can think the decades-long impact that he's had.

NELSON: You know, I was a first semester, first year law student in the fall of 1991, and I vividly remember the Clarence Thomas hearings. And you're right, I think he's going to look for someone in their 40s or 50s is my guess, and most of these women that were just mentioned are in my age range or in that mid-50, early 50 to mid-50 range. So, that is young for a justice. I think that you can absolutely count on him not nominating someone who is older, in their 60s-plus, as was Ruth Bader Ginsburg. But I wanted to pick up one point that I think is important. To my friends on the right who are yelling about affirmative action and saying this is POTUS, please stop it. Ronald Reagan ran on a pledge that he would nominate a woman to the Supreme Court, and he did. Her name was Sandra Day O'Connor. So, let's all calm down, stop being ridiculous, this is a historic pick and it's going to be a good one because, as we just mentioned, these women are all highly credentialed. My favorite is probably the Supreme Court justice in California. But I do think watch out for Jim Clyburn because he really wants the woman from South Carolina, Childs, and he's not being quiet about that. He really wants that to be the choice. So, it's going to be interesting to see.

KEILAR: Elie, you mentioned the Republican arguments that obviously you take issue with. I wonder is Senator Lindsey Graham going to vote to confirm, to move out of committee whoever this nominee may be? Is he going to say, again, elections have consequences? I'm going to vote to move this person. What are the arguments that stand out to you?

MYSTAL: Graham is an interesting one because he prides himself on having voted for Sotomayor and having voted to confirm Elena Kagan. But we also don't know what Mar-a-Lago is going to tell him to do, so I'm not so sure about Graham. But I do think that Murkowski and Collins are gettable. I think Mitt Romney might be gettable on this. I don't think this is going to be all that contentious because, again, of the people that we're talking about, their qualifications are unassailable.

When it comes to Republican arguments, I mean, we have to understand, I think the point that was just made about Reagan is a great one, but we don't have to go that far back. We can go back to the last president, Donald Trump, who nominated of his 226 federal judge, 85 percent were white and 75 percent were male. In addition, when, as you mentioned, the contentious hearing with Brett Kavanaugh, as he was flagging, people on the right were telling him there is this person, Amy Coney Barrett, waiting in the wings ready to go. And Trump said, no, I want to save her for Ginsburg.

Then right then after Ginsburg died, made this whole big thing of needing, wanting, praying for a woman who replace Ruth Bader Ginsburg so that a woman would be on their side when they overturn Roe v. Wade. So, they can miss me with their fake outrage over identity politics now when they are the ones who have been practicing it for years when it comes to Supreme Court nominations and federal court nominations.

[07:10:06]

Again, when you look at just the raw qualifications, the raw accomplishments of the people that are being bantered about, I didn't even mention Sherrilyn Ifill, current head of the NAACP Legal Defense Fund, that's Thurgood Marshall's old job. The lights that Biden has to pick from are generous and we're going to get a great pick no matter which direction he goes in.

BERMAN: So, you're playing game theory here, Sophia. Why should Democrats assume that the only time they will get to pick Supreme Court justices is when they have a Democratic president and a Democratic Senate?

NELSON: Well, I mean, I think that's the way this works, right? It's the same with the Republicans. So, I think that right now what Justice Breyer is doing is really patriotic of him in the sense that he wants to preserve his -- he's considered a liberal, right? And he wants to preserve that seat knowing that if he were to do what Ruth Bader Ginsburg and not retire, and then, God forbid, gets sick or something happen to him, guess what happens if there is a Republican president in 2025, guess what, it's the same scenario that we had during the Trump years who got three justices through, one arguable seat stolen from Merrick Garland and the other one Amy Coney Barrett was rammed through literally a week before the election.

So, again, the Democrats are doing the right thing here. I think they have to assume that if they're going to fill it, they are going to do it now.

MYSTAL: We don't even have to go to 2024. McConnell promised that he wouldn't confirm a replacement in 2022 -- in 2023 if he takes back the Senate. The reason why this is so important right now is not the Democrats' doing. This is McConnell's rules. And people are just trying to catch up and play by them.

BERMAN: And, again, if you're playing by those rules, I do wonder why don't you look for someone in their late 30s or early 40s if you want to control how long you have Democrat there or a more liberal-leaning justice there. Elie, Sophia, thank you both very much.

MYSTAL: Thank you for having me.

KEILAR: Former Alaska Governor and Vice Presidential Candidate Sarah Palin spotted dining outdoors in a Manhattan restaurant just two days after a judge announced Palin had tested positive for COVID, though it is unclear when she first tested positive. Moments ago, New York City Hall released this statement, quote, our goal has always been to incentivize isolation for those testing positive for COVID and providing them with multiple resources. That being said, we hope that anybody who has COVID is isolating for their own safety and the safety of all New Yorkers and find it highly irresponsible that Sarah Palin refuses to do that.

Joining us now is CNN Contributor and Epidemiologist Dr. Abdul El- Sayed. He is Detroit's former health director.

Okay, Doc. I will say, look, it was so cold around the time she was dining, low 20s. So, I don't think that she was doing -- well, she's from Alaska admittedly, but, still, that is pretty darned cold. So, maybe we're just doing what she wants, which is talking about her.

DR. ABDUL EL-SAYED, CNN CONTRIBUTOR: The fact of the matter is that it's almost like flaunting anti-social behavior is the point. And I remember a time when conservative ideology used to come with family values. And to me, family values tends to mean when you are infected with a contagious virus that has killed nearly a million people, maybe you do your part to protect other people from you. And this is clearly the exact opposite, which is just really frustrating to see because it sends a message out there.

BERMAN: I guess we don't know exactly when she tested positive. We know when we learned she tested positive but it is possible this is within the recommended five-day isolation period, right?

EL-SAYED: Of course it's possible. And we don't really know the timeline of when she was infected. But we do know that she's not vaccinated. And among vaccinated people, the likelihood that they have virus persisting in their body is a lot longer than among vaccinated people. And this is in keeping with a trend, a goal almost of flaunting any sort of anti-COVID protocols to show that you can.

And I question why it is that on the back of a virus that has killed so many people and really taken away loved ones from people's families that people feel like they have got to flex on their liberty somehow right now, and it's just really frustrating to watch. Because I do think that there is a middle way in this country where we can all agree that protecting one another is protecting ourselves. And it's just clear that at this point this has run amok. We have got this negative partisanship and polarization, that it's just taken this pandemic as sub straight to try and make a set of points that are completely divorced from the facts on the ground.

KEILAR: But, kook, this is a restaurant. She is not vaccinated. They could have required that she'd show proof of vaccination again. They did not. So, they are allowing this. And I wonder what you think that says about the bigger picture of where people, where Americans, even in New York City, even in Manhattan, where they are about these kind of restrictions and enforcements when it comes to vaccines.

[07:15:10]

EL-SAYED: I'll tell you what, people who work in restaurants right now have had it really tough for the past couple of years. And it is really, really hard to put enforcement of these restrictions on folks who are struggling to make ends meet and don't really know what tomorrow is going to bring for them. This is on Sarah Palin. It's on her choice to completely flout the rules that she understood, to put other people at risk from her infection.

And when someone as powerful as a former governor, former candidate for vice president comes to your restaurant and says, I want to eat, it becomes really hard for someone who is making $15, $20 an hour to tell them they can't. And so this is on her and we need to put this right on her lap.

KEILAR: All right. Dr. El-Sayed, great to see you, thanks.

EL-SAYED: Thank you.

BERMAN: New developments in the sex trafficking investigation involving Republican Congressman Matt Gaetz. A third witness, Florid Radio Host Joseph Ellicott is now cooperating with the Justice Department investigation after pleading guilty to charges in a separate case.

CNN's Whitney Wild here with us with the details here. Whitney, what's going on?

WHITNEY WILD, CNN LAW ENFORCEMENT CORRESPONDENT: Well, again, John, this is the third person in Gaetz orbit now cooperating with this federal investigation into the Republican congressman. This time, again, it is this Florida radio host, Joseph Big Joe Ellicott. His attorney tells CNN his client has met with federal investigators to share what he knows about the allegations against Gaetz, including sexual contact with a minor, sex trafficking and obstruction of justice.

Ellicott is cooperating with investigators after pleading guilty in a separate bribery scheme. He has pleaded guilty also to conspiracy to commit wire fraud and pled guilty to distribution of a controlled substance.

It should be noted that Ellicott has not been called to testify before the grand jury, but his testimony can serve to corroborate testimony of a man Joel Greenberg. He is one-time close friend of Gaetz's. Greenberg is a former Florida tax official. He's been cooperating with authorities after pleading guilty to several charges last year, and that includes knowingly soliciting and paying a minor for sex. An ex- girlfriend of the congressman also testified earlier this month before a grand jury.

Gaetz, for his part, has denied any wrongdoing. He has not been charged with any crime. His office writes in a statement, after nearly a year of false rumors, not a shred of evidence has implicated Congressman Gaetz in wrongdoing. We remain focused on you on work representing Floridians. John?

BERMAN: All right, watching very closely. Whitney Wild, thank you very much.

Overnight, China making it clear it is not happy with how the United States is handling the Beijing Olympics, telling Secretary of State Antony Blinken essentially back off.

Plus, why can't Florida's top health official say out loud the truth that COVID vaccines work.

KEILAR: And all good things must come to an end. The question that finally stumped Jeopardy! phenom Amy Schneider.

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BERMAN: Overnight, fiery words from China's foreign minister in a phone conversation with Secretary of State Antony Blinken. China told Blinken, quote, the U.S. should stop inferring with the Beijing Winter Olympics, stop playing with fire on Taiwan issues and stop creating all kinds of anti-China small circles.

CNN's Will Ripley live in Taiwan this morning. Stop messing with the Beijing Olympics, Will? WILL RIPLEY, CNN INTERNATIONAL CORRESPONDENT: Well, China wants this to be a soft power win, and they think the United States, from the diplomatic boycott to raising questions about Chinese human rights issues is raining on their parade. I mean, this is also that China, that in that same phone call, stood firmly behind Russia on the issue of Ukraine, saying that Russia's concerns about NATO expansion in Europe are perfectly completely reasonable.

So, you have one authoritarian government throwing its political weight behind another authoritarian government. And you also have the fact that they are warning the U.S. to stand down from its deepening ties with this self-ruled Democratic island of Taiwan, and saying that their number one focus right now is to make sure that the games go ahead as planned, even though, meanwhile, still no indication that Tennis Star Peng Shuai is being allowed to speak freely, even though she is meeting with the International Olympic Committee in the coming days, John.

BERMAN: Yes. China doesn't like to be told that people around the world see what's going on inside that country.

Will, also breaking overnight, a new missile test from North Korea, which I think is, what, the sixth this month? What do we know?

RIPLEY: This could be their busiest month for ballistic missiles tests today. We are still going through and trying to add up. And there were a lot of missile tests to go through. But it's rare that we see this kind of missile testing binge by Kim Jong-un. It's been since at least 2019 that we have seen this many launches in such short of a time. You are talking about ballistic missiles from the ground and from trains. You're talking about cruise missiles launched just two days ago. And then these hypersonic missiles that North Korea says have glide vehicles, allowing the warhead to make temperatures and defy missile defense systems, although some analysts are skeptical whether this would actually work in a war-time scenario.

There is growing concern among some that North Korea, after making all of these dire threats for decades, is now closer than ever to actually being able to make some of those threats become reality, John.

BERMAN: Yes, so many tests. It is clear they are they are trying to send a message as well. It's about more than just the technology here. Will, as always, thank you so much, great to have you there.

KEILAR: When it comes to ratcheting of tensions between Russia and the west over Ukraine, the ball is in Vladimir Putin's court. That is what Secretary of State Tony Blinken told reporters yesterday after sending a letter to the Russian government addressing its demands.

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(BEGIN VIDEO CLIP)

ANTONY BLINKEN, SECRETARY OF STATE: Right now, the document is with them and the ball is in their court. We will see what they do. As I said repeatedly, whether they choose the path of diplomacy and dialogue, whether they decide to renew aggression against Ukraine, we are prepared either way.

(END VIDEO CLIP)

KEILAR: At the same time, Russia is engaged in four-way talks with Ukraine, Germany and France, the so-called Normandy format in an effort to deescalate tensions in the region.

Let's talk about all of this with former Deputy Assistant Secretary of Defense for Russia, Ukraine and Eurasia, Evelyn Farkas is with us now.

So, Evelyn, I know you put the chance that Russia invading Ukraine at 80 percent, basically a foregone conclusion from your perspective. Why and when do you think this will happen?

EVELYN FARKAS, FORMER DEPUTY ASSISTANT SECRETARY OF DEFENSE FOR RUSSIA, UKRAINE/EURASIA: Well, good morning, Brianna. Thanks for having me on.

Look, I say 80 percent because Vladimir Putin has done nothing but escalate day after day for almost, I think, two weeks now. I have lost track. And the diplomatic path, while there have been meetings, everything that we're hearing coming out of the Kremlin, they sound very skeptical. Even more recently, this morning, our time, they said, you know, that they don't see anything new in these documents.

So, I am increasingly worried that they're going to strike into Ukraine. Now, I don't think they are going to take over the whole country. There is the ongoing conflict in Donbas. They can take territory there. They also need access to water for Crimea. So, I am concerned, Brianna, because I just don't think that we are able to give the Russians what they want, which is a really maximalist ultimatum of a sphere of influence and control over Ukraine.

KEILAR: So, there are a lot of factors that are influencing Vladimir Putin's calculus here, including in the U.S. You know, it's a war- weary public. How do those factors, that one and others, influence his timing here?

FARKAS: Yes. I think it has a lot to do with the timing, although he has got his own domestic reasons. His party is not very popular. He's not as popular as he was in the past. He may also think the clock is ticking on taking any action against Ukraine and the global community because he's now strong. But relatively speaking, he doesn't know what's going to happen in the future.

But, frankly, I do believe that he sees the U.S. is domestically divided, not interested in international engagement. He sees our allies as divided. I think this is all wrong. It's a miscalculation. If he strikes and he continues this belligerent action, it's going to unite us and we're going to have to act internationally. It doesn't mean we're going to war though. We can put a lot of pressure on Russia short of getting directly engaged in any kind of conflict.

KEILAR: Yes. It seems very clear the Biden administration has no intent of going to war despite what Russia may be telling its folks there internally. Evelyn Farkas, thank you for being with us. FARKAS: Thanks, Brianna.

KEILAR: Moderna has begun its next phase in an omicron-specific booster trial. We're going to speak with the company's top doctor, next.

BERMAN: And police are now begging the public for help after a 16- year-old girl was found dead next to a freeway in Los Angeles.

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