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New Day

Opinion Draft on Overturning Roe v. Wade; Zelenskyy Reveals Assassination Attempts; Tulsa Race Massacre Court Victory; Primary Day in Ohio and Indiana. Aired 8:30-9a ET

Aired May 03, 2022 - 08:30   ET



JEFFREY TOOBIN, CNN CHIEF LEGAL ANALYST: Because the court is usually reluctant, or at least publicly reluctant, to overturn its precedents.

You know, the whole idea of precedence is to give the public the idea that the law has some stability, that the courts are different from Congress. Congress is not obligated to follow what previous congresses have done, but the courts are supposed to be different. And so they only overrule their precedents when those precedents are egregiously wrong, according to the majority. That's why he feels so obligated to write language in that way.

JOHN BERMAN, CNN ANCHOR: And that's what some conservative justices, including Brett Kavanaugh in the past, have likened to Plessy versus Ferguson, which was separate but equal, or the ruling about the Japanese internment camps. They have written that those decisions were so wrong that precedence doesn't apply.

TOOBIN: That's right. but they do overrule them now and then. It is not unprecedented in the court's history of them to overrule precedent. But once you start overruling precedent on a regular basis, you sacrifice the institutional respect that the court has. And that's the risk that they run.

BERMAN: You were talking about whether or not by banning or overturning Roe v. Wade basically Alito is opening the door to other things.

He writes, the abortion right is also critically different from any other right that this court has held to fall within the 14th Amendment's protection of liberty.

Now he writes this, in this case it's sort of synonymous with privacy. The idea of a constitutional right to privacy since the 1960s has protected things like interracial marriage, contraception, recently same sex marriage. He seems to be writing abortion is different, but --

TOOBIN: But, once you start eviscerating the right to privacy, you can't control where it necessarily goes. I mean the right to privacy, as you say, and it goes even back. It goes back to the 1920s when the court said, you know, Oregon could not say to parents, you have to send your children to public school. Oregon passed a law outlawing parochial schools. Courts said, you can't do that. There's a zone that parents have of control over their lives.

My -- in Nebraska, banned the teaching of German. They said you can't do that because that's up to privacy.

This abortion only comes out of all those cases, about contraception, about same sex relations. You know this -- Georgia had a law that criminalized sodomy and the court said that violates the right to privacy. You know, Alito is saying here, no, no, no, that those decisions aren't affected, but he can't control that. Once you eviscerate the right to privacy, he can't control and no one can control where it might end.

BERMAN: Jeffrey Toobin, thank you very much for that.

TOOBIN: All right.

BERMAN: Brianna.

BRIANNA KEILAR, CNN ANCHOR: Joining us now, CNN political director and host of the CNN "POLITICAL BRIEFING" podcast, David Chalian, and CNN's senior political correspondent and anchor of "INSIDE POLITICS SUNDAY," Abby Phillip.

You guys, this -- this news is hitting Washington and the country like an earthquake. And I just wonder how this is rocking the political landscape as we're so close to a midterm.

ABBY PHILLIP, CNN SENIOR POLITICAL CORRESPONDENT: I think this is probably the first time in roughly 50 years that I think Democrats have an argument to their voters, but also to a lot of voters in the ideological middle of the country, principally women, that this is not -- you know, the right to an abortion isn't just being chipped away at, it's on the verge of going away in at least half of the states in this country.

And so that changes things for Democrats. They have -- now have an argument to voters that this is the contrast. Actually a couple of days ago, the White House was arguing that the contrast is not between Joe Biden and generic Republican or inflation and generic Republican, it's the status quo and an extreme right. And I think that's going to give a lot of fuel to this argument that the option available to voters in the midterms is an extreme right.

DAVID CHALIAN, CNN POLITICAL DIRECTOR: We haven't -- we have seen, to Abby's point, over 50 years, this issue motivate conservatives. I mean truly just get them to the polls. I mean this has been a driving life force inside the Republican Party for 50 years. And Democrats always talk about it and on the campaign trail you'll hear them try to rally their troops saying, Supreme Court, remember, we have -- we need that too. But it has not proven to be an issue that actually gets Democrats out to the polls and vote in that kind of impassioned way. Lots of other things and perhaps the assumption that because of this court case, Roe v. Wade, was in place, that all would be OK. That assumption is out the window now. And what Democrats are going to try to do -- and, remember, all the polling has indicated so far this year, Brianna, there's a real enthusiasm, disadvantage for Democrats. We've seen, this year, Republicans are far more interested, according to the polling, in turning out in November for the midterms. Well, is this the thing now we're going to watch?


Democrats are going to lean in hard to this because they believe now this is the thing that can mobilize their troops and get their turnout operation much more in line.

KEILAR: Because isn't there an argument to be made that they weren't as motivated because they had this right, they had the ability to get an abortion if they wanted to or just to know that that right that they believe in is there. And now that is being threatened. I wonder if that is more motivating.

PHILLIP: Yes. I mean, I think that it definitely changes the calculus. And it's not just about abortion. I think you'll see this as Democrats start coming out and talking about this. Within this draft leaked ruling by Justice Alito is a list of all the other types of rights that are -- that are protected or recognized by the same basic principle that abortion rights had been for about 50 years. They include things like same sex marriage, and the contraception and gay marriage. And Democrats are going to say to voters, based on what we are seeing in the text so far, that it doesn't stop there.

And already, I mean, I've been looking at what activists have been saying on the right. They are talking about restricting -- you know, it's not just abortion. Restricting things that include contraception. That women across the country, it's -- they're -- it's broadly popular and it has been -- it has been part of American life for their lives, for their mother's lives, for their mother's mother's -- parts of their mother's mother's lives, and that's going to be a major, mayor sea change in how people perceive what kind of country they live in.

CHALIAN: I mean this is -- sorry, this is why it's -- obviously it's a bombshell for all -- all reasons. But when the court, if this is where they end up, takes a position that only 30 percent of the country agrees with, it's hard for it not to be a bombshell. I mean that's the reality.

KEILAR: But do you --

CHALIAN: The court here is taking a very unpopular decision.



KEILAR: Do you see Republicans, though, wanting to go in that direction that Abby just spelled out?

CHALIAN: Without a doubt. Without -- KEILAR: With states.

PHILLIP: They've already said that they are going to do exactly that.

CHALIAN: They're making that clear. State by state. And there's going to be a conversation on the right about, you know, nationalizing it beyond just the state by state piece of this.

We were just talking, it's like, on the flip side what you see from the progressives on the left instantly last night when this news broke was once again calling for an end to the filibuster, which we know the math really isn't there for that, in order to try and codify Roe into law. So now you're going to see what has been a battle about the courts and state legislatures for decades now, it's going to move to Congress in, like, in a legislative battle over which side now can get their most extreme version of this into place.

KEILAR: We are in a new place, I will tell you that. And I thank you, both, for having this conversation with me today. Abby Phillip, David Chalian, thank you.

Ahead, CNN goes inside the Alabama jail where a missing female deputy is now charged with helping a capital murder suspect escape.

BERMAN: And Ukraine's President Zelenskyy says there have been more than ten assassination attempts against him. How close did they come to succeeding?



BERMAN: In a new interview with "60 Minutes Australia," Ukrainian President Volodymyr Zelenskyy reveals that he has survived more than ten assassination attempts and he says that's not so bad.



UNIDENTIFIED MALE: It must be unnerving knowing how much certain people want you dead.

PRESIDENT VOLODYMYR ZELENSKYY, UKRAINE (through translator): I think that considering all what we live through, what is happening right now, when people are sitting in cellars, when people are being tortured, when bodies of Ukrainians are found in wells, I think that my own situation is not so terrible.


BERMAN: Joining me now, CNN's senior global affairs analyst Bianna Golodryga.

And Bianna, in another interview he revealed that the Russians showed up at his compound one night when his family was still there, early on.

BIANNA GOLODRYGA, CNN SENIOR GLOBAL AFFAIRS ANALYST: That was the night of February 24th, when Russia first launched its invasion. Remember, U.S. intel, western intel, suggested it was just going to be a matter of days before Russia was going to be able to seize Kyiv. And that's why they offered him safe passage out of the country, assuming that he would likely be better of leading from perhaps Poland or a neighboring country.

But, no, he stayed. He said that his family had still been in that compound. And I think all of this speaks to the bigger picture of just how much intel the U.S. is providing Ukraine. And we're seeing that line evolve as this war continues, as the U.S. is more confident that perhaps Ukraine can win.

I think early on it was highly lawyered up, right, in the sense of how much intel the U.S. could give Ukraine, really not wanting to involve itself in the war. Since then we have seen that drastically expand into now you're seeing scenarios where once a week, if not more, Ukraine is targeting Russian fuel depots, ammunition depots. Just this week --

BERMAN: In Russia.

GOLODRYGA: In Russia. And just this week, Russia had launched attacks against Odessa. Well, just before then, just moments before then, Ukraine managed to scramble some of its fighter jets ahead of that attack. So that gives you a sense of some of the intel that the U.S. is providing.

BERMAN: I want to ask you something of what we're just learning. The French recently re-elected French President Emmanuel Macron. We're learning he just had a two-hour phone conversation with Vladimir Putin. Now, he had been speaking to Putin fairly regularly but stopped after the atrocities in Bucha came to light. Now we have this new two- hour conversation.

GOLODRYGA: And it's interesting till you see various perspectives in how to approach Vladimir Putin throughout Europe and amongst allies because you see, obviously in France and Macron, he continues this phone diplomacy, obviously given what is going on in Russia and the atrocities there. I'm not sure what exactly he's expecting Vladimir Putin to say. What we know is that Vladimir Putin has denied many of these atrocities and blamed Ukraine for not cooperating there.

But in other countries like Italy, the prime minister saying over the weekend that at this point it's just a waste of time to speak with Vladimir Putin, that all that he spews are lies, right?


So it gives you a little bit of a breakdown as to how world leaders view engaging with him and whether there's any merit to it.

BERMAN: We're ready for a readout of what was discussed or what, if anything, came of it. Bianna Golodryga, thank you very much.

Next, an emotional interview with a survival of the Tulsa Race Massacre after a key victory in court.


OMAR JIMENEZ, CNN CORRESPONDENT: And you won't stop until it's finished.

HUGHES "UNCLE RED" VAN ELLIS, 101-YEAR-OLD TULSA RACE MASSACRE SURVIVOR: Won't stop until it's finished. Will not stop.



KEILAR: A packed courtroom erupting in cheers and applause after a judge ruled a lawsuit seeking to remedy the 1921 Tulsa Race Massacre could proceed. Attorneys for the plaintiffs are in a race against time for some measure of justice for the last of three known survivors who are each more than 100 years old.

CNN's Omar Jimenez live for us in Tulsa, Oklahoma, with more on this.



OMAR JIMENEZ, CNN CORRESPONDENT: Well, Brianna, 300 plus years between them, and this may be their last chance at a trial. The lawsuit is essentially alleging the massacre created a massive burden, both economically and financially, that the effects of which are still being felt today. And they want those in city and county leadership, who they deem responsible, to repair what the survivors say they broke.

So, when the judge announced this case would at least move forward, the standing room only courtroom burst into cheers and applause. Those three remaining survivors, all over 100 years old, were sitting front row. And we spoke to the youngest of them, 101 years old, but Uncle Red, as he's known, couldn't believe it.


OMAR JIMENEZ, CNN CORRESPONDENT: You really feel it deep down to your core?


JIMENEZ: It's been a long time coming?

ELLIS: Long time. (INAUDIBLE). Long time coming. It's going to come. A change is coming.

JIMENEZ: After decades and decades of trying, this is just for a chance.

ELLIS: It's not just -- it's never (ph) had one this before. You go back 100 years.


JIMENEZ: Now, to be clear, the judge only said this motion to dismiss was denied in part, but also granted in part, and then left it at that with no further details. So, we don't know immediately when this would go to trial. But bottom line, the case was announced it would move forward, giving these survivors a potentially golden opportunity.

Take a listen to one of their attorneys.


DAMARIO SOLOMON-SIMMONS, ATTORNEY: While we're so happy today, because of the first time in the history of this incident, which is over 100 years old, we're able to move forward to discovery, to learn more about this incident and hopefully get the remedy that we need.


SOLOMON-SIMMONS: That's right.

ELLIS: We're just starting.

SOLOMON-SIMMONS: That's right, Uncle Red.

ELLIS: You tell me, my nickname, they said, Red, you talk too much. I don't talk enough. I got talk -- and I've got a chance to talk.

JIMENEZ: And you won't stop until it's finished.

ELLIS: Won't stop until it's finished. Will not stop. We can keep driving.

I'm going to be 130 years old, and I'll be here a long time.


JIMENEZ: I really don't know how that guy has the energy. But moving forward, we are waiting on an order from the judge to figure out what exactly was denied and what was granted in this particular case. The defendants, made up of area and city county leadership, argued it's been too long since this has happened and that they would be stepping on the toes of the legislature if this case were allowed to move forward. But the survivors have said, injustice plus time does not equal justice. And at least for now, even though the survivors are all over 100 years old, this judge has given them after more than a century at least a chance out of semblance of justice, Brianna.

KEILAR: Yes, that gentleman is 101 years young, I will tell you that, Omar.

A fascinating interview. Thank you so much. Omar Jimenez live for us from Tulsa.

Voters are heading to the polls this morning in Ohio and Indiana, where several high stakes primary races will be decided, and the influence of Donald Trump will be put to the test.

And this comes amid the stunning news out of the Supreme Court. A draft opinion appearing to show the court will overturn Roe v. Wade. How soon could it happen and what does it mean for reproductive rights in the United States?



BERMAN: It is primary day in Indiana and Ohio. All eyes on Ohio's Republican primary for U.S. Senate. It's a tight race being viewed as an early test of former President Trump's endorsement power.

CNN's Kristen Holmes live at the polls in Cleveland.

Kristen, what are you seeing?

KRISTEN HOLMES, CNN NATIONAL CORRESPONDENT: Good morning, John, and happy primary day from Ohio.

As you said, all eyes are on that Senate GOP race. This is the first in a series of primaries that's really set to test the power of Donald Trump and his ability as a kingmaker.

Now, here he did endorse JD Vance. Vance is the author of "Hillbilly Elegy." He is a political novice. And, surprisingly, he is a former never Trumper. And while this endorsement did propel Vance to the top of the pack, it is by no means a done deal. You have to remember this, when Vance was speaking out against President Trump back in 2016, he was also speaking out aggressively against the people who voted for them -- for him. And so when you talk to voters on the ground yesterday, they were still questioning Vance's loyalties. So, interesting to see what happened there.

The other two candidates we're watching, one, Josh Mandel, who was campaigning with Senator Ted Cruz over the weekend. He had tried to get Trump's endorsement, unsuccessfully.

And the other is former State Senator Matt Dolan. Now, Dolan is incredibly interesting. He is Trump friendly, but he did not try to get Trump's endorsement. And, in fact, he has said it is time for the Republican Party to move forward from Trump's lies about the election in 2020. There is some indication that Dolan is gaining momentum on the ground here. We have seen the fronting really honing their attacks in on Dolan.

And, John, I've got to tell you, it was so interesting yesterday being on the trail. We spoke to so many voters who were still undecided, which, of course, means there's potential for a surprise here.

BERMAN: Yes, a quarter of voters still undecided as of the most recent polling, not that the polling this late matters. But the Dolan factor is fascinating because you look at Mandel and you look at Vance, both extremely pro-Trump, they could cancel themselves out. So there might -- there might be an avenue for someone trying to stake out their own territory there. May not need to get much more than 20, 25 percent of the vote depending on how this all breaks down.

Kristen Holmes, in Ohio for us, those polls close tonight. We will be getting results throughout the evening.


Thank you so much for your coverage. Appreciate it.

A lot going on this morning, including the stunning news from the Supreme Court, the idea that Samuel Alito has written a draft opinion overturning Roe v. Wade.

CNN's coverage continues right now.