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Soon, Supreme Court Hears Challenges to Affirmative Action; GOP Riding Wave of Optimism in Campaign's Final Week; Lula Defeats Bolsonaro in Razor-Thin Runoff Election. Aired 7-7:30a ET

Aired October 31, 2022 - 07:00   ET



BRIANNA KEILAR, CNN ANCHOR: Affirmative action could be the next major precedent to fall.

I am Brianna Keilar with John Berman in-person this morning.

In just a few hours, the Supreme Court will hear arguments on whether colleges and universities can continue to consider race as a factor in admissions.

JOHN BERMAN, CNN ANCHOR: Challengers in these cases are targeting Harvard and the University of North Carolina. They argue the schools' admissions programs violet equal protection principals, eliminate the promise of a color blind society and discriminate against Asian- Americans.

CNN's Jessica Schneider joins us now. Jessica, lay out these cases for us.

JESSICA SCHNEIDER, CNN JUSTICE CORRESPONDENT: Well, John, arguments in these two cases against Harvard and UNC, they are teed up for this morning. The Supreme Court will once again re-examine affirmative action. But this time, with that solidly conservative court, it is quite likely that the justices could once again upend precedent and ban affirmative action once they release their opinion sometime next year.

And all of this is happening as the groups fighting to end the consideration of race in admissions, they have been quite outspoken.


UNIDENTIFIED MALE: Diversity as important, as it is, cannot come at expense of Asian-Americans.

SCHNEIDER (voice over): These Asian-American students are leading a fight against affirmative action.

UNIDENTIFIED MALE: It's time for Asian-Americans to break up with woke diversity.

SCHNEIDER: They're at the center of a lawsuit against Harvard, accusing the Ivy League School of discriminating against Asian- Americans to make more room for Hispanics and blacks. Calvin Yang, who is now sophomore at U.C. Berkeley, claims he was denied admission to Harvard because of his race.

CALVIN YANG, STUDENTS FOR FAIR ADMIMSSIONS: It goes to show that there's a trend here, a trend where Asian-Americans are systematically getting discriminated because of you we are.

SCHNEIDER: Now, the case against Harvard and a separate but related against UNC Chapel Hill is coming before the Supreme Court.

Conservative Activist Edward Blum has been leading the crusade to end affirmative action for nearly a decade.

EDWARD BLUM, CONSERVATIVE ACTIVIST: Classifying students by race and ethnicity, treating them differently because of their race and ethnicity, it's unfair.

SCHNEIDER: Blum started the group, Students for Fair Admission, and initiated cases against Harvard and UNC Chapel Hill years ago. Harvard is accused of holding Asian-Americans to a higher standards and capping their numbers. But the school said it set no limits. At UNC Chapel Hill, some students say there is too much weight on race and admission resulting in discrimination against whites and Asian- Americans.

The school though contends it takes a holistic approach to admissions decisions. Multiple federal judges have ruled neither has school violated the Constitution by considering race in the admissions process. But now, Blum and his supporters are banking on the Supreme Court reversing its own precedent and banning the use of affirmative action.

BLUM: I think that is something that has been polarizing. It has been problematic. And I think the nation is ready for this.

SCHNEIDER: Julia Clark leads the group, Black Student Movement, at UNC and she says race is an essential element for universities to consider.

JULIA CLARK, PRESIDENT, BLACK STUDENT MOVEMENT, UNC-CHAPEL HILL: We cannot have holistic administrations without race because race is embedded into every single facet of everyday life for people that come from diverse backgrounds.

SCHNEIDER: Already, nine states ban the use of affirmative action in admissions decisions at public universities. But leaders at the University of California and the University of Michigan say their race neutral admissions policies have not worked, telling the Supreme Court in filings they haven't been able to significantly increase enrollment of underrepresented minorities since affirmative action bans in their states took effect.

MARILYNN SCHUYLER, AMERICAN ASSOCIATION FOR ACCESS, EQUITY AND DIVERSITY: I know that certainly in California, there have been definite attempts to try and even the playing field in other ways. And they had a limited impact. There's a chilling effect when students don't feel welcome either by legislation or otherwise. They're not going to want to come to a university that has banned affirmative action, that doesn't value that diversity.

SCHNEIDER: Now, it's up to the Supreme Court to set the final word of whether affirmative action can continue.

YANG: I want to see affirmative action being repealed and become illegal in college admission system across the country.

CLARK: I think I speak for myself and other black students that we really are scared at the end of the day.


SCHNEIDER (on camera): Now, the Supreme Court has approved affirmative action for the last 45 years, but, crucially here, when it was affirmed in 2003, Justice Sandra Day O'Connor, in writing from the majority, she said it might not be needed after 25 more years. We're coming up on 20 years since that decision. So, it's possible the court could use that timeline as a rationale here to eventually end affirmative action. John and Brianna?

BERMAN: All right. Jessica Schneider, thank you very much for that report.

KEILAR: Let's bring in our CNN Senior Supreme Court Analyst Joan Biskupic on this. Is there any possibility the court would not overturn affirmative action, Joan?

JOAN BISKUPIC, CNN SENIOR SUPREME COURT ANALYST: Small possibility, Brianna. There's no center left on this court and it was a centrist conservative who has upheld affirmative action narrowly over the past nearly 45 years.


First, it was Lewis Powell in the famous Bakke case in 1978, then Sandra Day O'Connor, then Anthony Kennedy last in 2016.

And this court has shown that it's really ready to plow through precedence. We saw that most famously in abortion in June but that's been happening in religious rights and other areas of the law. And the court does indeed seem poised to roll back the 1978 landmark Bakke and then also the 2003 ruling that Jessica referred to. But there has been so much public pressure after what they did on abortion rights that maybe they might hedge for a while.

BERMAN: I mean, Bakke was such an important case for what it did, which is to say, no to quotas but yet to race as a factor in admissions which is what the courts have since held in different ways since then. So, if this court does want to get away with race as a factor, with schools being able to say race and diversity is good for our campus, what would that mean?

BISKUPIC: It would mean campus is not -- it wouldn't have as many different colored faces on them. That's what the universities and colleges are arguing, is that they need to take race into effect with so many other criteria that are part of the admission process, test scores, academic records, extracurriculars. But what the universities are arguing is that they need to at least take a look at race.

And it's interesting, John, that you just referred to the rationale from Bakke. A lot of people think affirmative action was allowed because of remedy to past discrimination, but, no. When Lewis Powell cast that decisive vote in 1978, he said it was for the educational mission to have a more diverse student body. And that's what the justices upheld in 2003 and that's what is at issue here.

And several schools have tried race neutral measures and they say they just do not do the -- they did not provide the kind of diverse campus student body that people would like on campuses, again, for the educational mission, to build a diverse workforce for the global economy, and as a solicitor general is going to argue today in both cases, in both Harvard and the University of North Carolina, that for the military academy, it's important to have a variety of students of all race and ethnicities.

KEILAR: Yes. Certainly, you have that in the rank and file, you need it in the officer core as well. Joan Biskupic, thank you so much.

BERMAN: So, Republicans say that they have the momentum in the midterms with just about a week to go. I want you to listen to Florida Senator Rick Scott, who is the Republican Senate campaign chief. This is what he tells CNN.


SEN. RICK SCOTT (R-FL): We're going to get 52-plus. Herschel Walker will win in Georgia. We're going to keep all 21 of ours.

This is our year. The Democrats can't run on anything they've done.


BERMAN: CNN's Jeff Zeleny is here with us right now. Look, you expect to hear confidence from campaign chiefs a week before Election Day. Rick Scott says 52. Where does he get that number?

JEFF ZELENY, CNN CHIEF NATIONAL AFFAIRS CORRESPONDENT: Well, they think 52. They aren't exactly sure which seats will make up the 52 but it comes from a collection of these states, Nevada, Arizona, potentially New Hampshire, Pennsylvania, of course, and Georgia. So, Republicans feel fairly good about this.

We should point out, there is Republican optimism out there, no question about it, largely in the House. Republicans are on a position really to win a majority in the House. Only five seats make up the difference. The question is how big of a majority will there be. The White House is already planning for this. They've been planning for it for a long time. So, a sense of pessimism is happening there.

But, really, in the final week of this race, it's all about the Senate, the Senate, the Senate, the Senate. So, yes, 52, they're not sure where they make those up, but the math is there for them to get 52 at least.

KEILAR: What are Democrats saying behind the scenes?

ZELENY: What Democrats are saying is we need more time, we need more Obama.

BERMAN: Well, they don't get more time.

ZELENY: They don't.

BERMAN: The election is next week.

ZELENY: They don't. But it's one reason that schedule change was added to a Barack Obama campaign schedule. He's going to Arizona now on Wednesday trying to juice up the Democratic vote there. But they still feel that they're holding on in Senate races potentially in Pennsylvania.

And this is the most interesting thing to look at, split tickets versus coattails. What is going to happen here on Election Day? And in Pennsylvania, Josh Shapiro, of course, running for governor, he's in commanding position of that race. Could he pull John Fetterman over the finish line or help him? But conversely, in Georgia, Brian Kemp, the Republican governor, is running pretty strong, is he going to help Herschel Walker?

So, there really is a sense that Democrats need to really defend all of their seats and only pick up one other one in Pennsylvania. If Fetterman wins, it's the ball game if they hold on to all the others. So, there's a pessimism a bit among Democrats but the optimism seems very strong among Republicans.


KEILAR: New poll numbers out, some new poll numbers out in some of these races, right, that we're seeing from The New York Times. You have a lot of conservatives who are poo-pooing these poll numbers. They don't believe them. Maybe they don't match up with their internal poll numbers. Is that what's happening here? I mean, tell us what you are hearing from your sources on both sides as they're looking at these poll numbers.

ZELENY: Look, the new poll numbers this morning in The New York Times, the Siena polls, in all those races we've talked about, showed Democrats with a slighter edge but it is just outside of the margin. But in a place like Nevada, for example, Catherine Cortez Mastro, it's 47/47. That has been locked in there. That's not a good place for an incumbent to be the week before the election.

The question is, are Democrats going to be motivated by some of the sounding of the alarm? I talked to a lot of Democrats for my story as well, the pessimism is real but, again, there's still eight days to vote. So, let's not get ahead of ourselves. The House is a different position than the Senate. The Senate is the focal point here for the final days for the final days of the race.

But, look, it's a one-seat majority. So, all of the seats here make a difference. But keep your eye on Georgia as well. The overtime comes there if Raphael Warnock or Herschel Walker don't get over 50 percent, which they probably won't, this race goes until December for a runoff in Georgia.

KEILAR: All right. Jeff, thank you so much for the great reporting.

ZELENY: You bet.

BERMAN: All right. CNN Political Commentator, Host of Smerconish, Michael Smerconish joins us now. Michael, I want to approach this in a slightly different way. If Democrats are able to maintain control of the Senate, it will be because of what, do you think?

MICHAEL SMERCONISH, CNN POLITICAL COMMENTATOR: Personalities and the intricacies of each of those Senate races. I believe that in the end House control is determined by the national emotion. You know, that's why we ask these generic questions about representation in the House of Representatives. I don't think you get to know the particulars of your respective House of Representatives contest, 435 of them nationwide and, of course, everybody is up for re-election or there's an open seat.

But you get to know Fetterman, you get to know Oz, you get to know Warnock, you certainly get to know Herschel Walker. Each of these races that I've just ticked off in the battleground states, I think people make more informed decisions. And so you vote on emotion, when it comes to electing a representative in Congress, you vote for a personality or particular person or vote against a particular person in a Senate contest.

BERMAN: I mean, look at this from the Republican perspective or from the Democratic perspective through Republican victory here. If Republicans do take control of the Senate, what will Democrats look back on and regret?

SMERCONISH: I think they'll regret putting too many eggs in the abortion basket. ABC and Ipsos had a poll over the weekend that showed abortion comes in as the number three priority among Americans, the top two were economic, inflation and the economy, generally. I think maybe there was a belief that the overturning of Roe versus Wade, given what we saw in Kansas, given what we saw in New York's 19th congressional district, maybe it emboldened Ds too much and they took their eyes off the economy. That's why social security and Medicare are issues that now are being discussed in the final week of the campaign. So, I think that would be one takeaway in a Democratic postmortem if they lose control of the Senate.

BERMAN: All right. Eight days left, roughly, what could change in the remaining week, Michael?

SMERCONISH: There's still time on the clock for an October surprise. I mean, I look at that horrific attack on the speaker's husband, Paul Pelosi, that took place in the wee hours of Friday morning, something totally unforeseen and yet another of those intangible that potentially impacts the elections. I mean, Republicans look at it and say it's indicative of lawlessness when you have cities that are controlled by Ds. And Democrats look at it and they say, look what motivated this guy, mentally unstable for sure, but buying into conspiracy theories about COVID and January 6th and the 2020 election. See, we told you, democracy is in peril.

I hope there's nothing violent coming in the coming days but I'd be shocked if by Friday something else hadn't materialized that all of a sudden stole the narrative.

BERMAN: Michael, it's interesting, some Republicans are doing more than just saying, oh, this just shows crime on the streets. Some Republicans are fuelling the flames of conspiracy theory surrounding this attack on the husband of the speaker of the House. First of all, you have Elon Musk re-tweeting something that has absolutely no basis and fact, misinformation there, but then you have other Republicans joking about it. How surprised are you to see something like that?

SMERCONISH: I'm really shocked that you're going to say why would you be shocked, of course, he wouldn't do that. I thought that Donald Trump would have released a statement immediately saying something sympathetic about, what is, he an 82-year-old guy who was awakened in the middle of the night, and someone is there, and before it's over, hit him with a hammer, cause a skull fracture, and yet there was silence.


It was radio silence. I would like to think that in an episode like this, we still unite around basic values and decency.

Musk was a disappointment to me. He had just released that statement saying that he wants to have a robust town square and not allow it to turn into a hellscape. And then he buys into a media outlet that, by all accounts, is one that you have got to always be suspect of. They themselves relying on a story that had been retracted from a Fox- affiliate on Oakland, but the ink hadn't even dried on his ownership and he was giving heft to pure rumor and speculation. And even though the story has been retracted and he took down his tweet, I know from firsthand experience that people are out there (INAUDIBLE) about this and still spreading it. So, it's a shame.

BERMAN: Game 3 prediction for tonight, Michael?

SMERCONISH: I will be in the house, and, therefore, it will be a Phillies victory.

BERMAN: Michael Smerconish, from your lips, thank you very much, good luck tonight, my friend.

SMERCONISH: Thanks, guys.

KEILAR: This morning in a stunning political comeback, Brazil's former president Luiz Inacio Lula da Silva beat far-right incumbent Jair Bolsonaro in a tight runoff race for president. Lula's supporters gathered in the street to celebrate the return of the left in the power in Brazil. In the meantime, outraged, Bolsonaro supporters blocked highways in two states protesting the results.

CNNs Paula Newton is live for us in Sao Paulo, Brazil, with the very latest here. Tell us the latest.

PAULA NEWTON, CNN CORRESPONDENT: Yes. I mean, Brianna, the issue of those supporters, Bolsonaro supporters, still blocking the roads at issue this morning. Why? The president of this country was not seen last night to say anything about the election, let alone concede. In the meantime, Lula supporters can't get enough of a 77-year-old comeback kid.


NEWTON (voice over): Supporters partied like it was 2003. The last time Luiz Inacio Lula da Silva was swept into power and promised to transfer Brazil for a new century, he is now pledging to do it again. These women just babies when Lula was first elected hail him now as their political savior.

UNIDENTIFIED FEMALE: So, so, so happy. We couldn't take any more of Bolsonaro. We can dream again.

NEWTON: Lula cemented an improbable political comeback destined now for the history books. He walked out of prison less than three years ago appealing corruption convictions. After they were thrown out, he mounted a campaign to defeat conservative populist, Jair Bolsonaro.

LUIZ INACIO LULA DA SILVA, BRAZILIAN PRESIDENT-ELECT: I consider myself a person who's been resurrected in Brazilian politics because they tried to bury me alive and I'm here.

NEWTON: A gratified Lula pledged Brazil is back for its citizens and the world.

SILVA: From January 1st, 2023, I will govern for 215 million Brazilians and not just those who voted for me, they are not Brazil, we all one country, one people, one great nation.

NEWTON: Lula supporters flooded the streets of Sao Paulo relishing a fresh start.

Despite this victory, uniting this country now will be difficult and quite a challenge for Lula, as he also considers a very determined opposition.

Bolsonaro did not formally concede on election night. The last time Brazilians saw their president was when he voted. But even ahead of Brazil's Congress, a Bolsonaro ally allowed Lula supporters their victory, saying Congress accepted the outcome. This Lula supporter says the war, in her words, the culture war that Bolsonaro leaned into, is not over.

AYLA RAMALHO, SUPPORTER OF LUIZ INACIO LULA DA SILVA: Look at the amount of votes this man had. Even after everything he's done, almost half of the votes, the difference was really small.

NEWTON: This is Lula's victory but no longer Lula's Brazil. Years of division and political acrimony have taken their toll, blindsiding this democracy and it could yet challenge this president like never before.


NEWTON (on camera): You know, President Biden immediately congratulated Lula, but made a point to say, look, it is clear these were credible elections. We will wait to see whether or not Bolsonaro will concede in the coming hours.


I also want to remind everyone, look, what happens here, this is a significant democracy, but not only that, in the environmental space, many people said that they wanted this Lula victory to usher in a new era on the environment in this country. People like Bernie Sanders, Senator Bernie Sanders, calling this a return to environmental sanity. Brianna?

KEILAR: All right. Paula Newton, thank you so much for that report from Sao Paulo for us.

Next, anti-Semitic messages appearing in very public places over the weekend in Jacksonville, Florida.

BERMAN: And we're just talking about this. Twitter's new owner, Elon Musk, tweeting a fringe conspiracy theory about the attack on Paul Pelosi.

And a billion reasons to buy a power ball ticket before tonight's drawing.


KEILAR: Officials in Jacksonville, Florida, are condemning multiple anti-Semitic messages that appeared over the weekend in public spaces. One message referencing Rapper Kanye West was seen scrolling projected on the outside of the stadium during the Florida/Georgia game on Saturday night.


Joining us now is Jennifer Plotkin. She is the board president of the Jewish Federation and Foundation of Northeast Florida. Jennifer, can we just talk big picture here? What do you see happening on a larger scale here and where does this lead?

JENNIFER PLOTKIN, BOARD PRESIDENT, JEWISH FEDERATION AND FOUNDATION, NORTHEAST FLORIDA: Good morning. And thank you for having me on this morning. In the big picture, we are certainly disheartened and concerned by the escalation of anti-Semitic rhetoric that we've seen specifically over this past weekend. We are very thankful for the numerous leaders and community members who have expressed their disgust and condemnation of these acts as well.

In going forward, we will be using our anger and disappointment that these things are happening here to build alliances within our community and to ensure that our Jewish community is protected.

KEILAR: So, you're thankful for the condemnations you've received, that would include one from Florida Senator Rick Scott who said this to our Dana Bash yesterday.


SEN. RICK SCOTT (R-FL): I've dealt with it as governor. And this anti-Semitism, one, it's disgusting, it's wrong, we have to push back against it.


KEILAR: So, there's that. What do you say about those who have not condemned this, who have not spoken out? I mean, for instance, so far, Governor DeSantis, who was actually at the football game, appears to have not said anything.

PLOTKIN: Well, my personal opinion is that the time for silence is over. If we do not speak out against anti-Semitism and hate speech of all kinds, not only are we normalizing of it but we're also approving of it and allowing it to happen. So, it would be our ask that all of those in leadership and all of our partners in the community express the same concerns we have, that this is not something that will be tolerated.

KEILAR: Jennifer, I know that you've probably been watching the new ownership of Twitter with some interest. Elon Musk now owns Twitter. You've seen some of the language and the trends since then. What concerns do you have about this?

PLOTKIN: I don't know that I can really speak to that, quite honestly. I think that it is very clear what hate speech is, what it looks like, and that the types of messaging we've seen in Northeast Florida are not something that should be condoned or accepted.

KEILAR: Where do you think all of this will lead, this speech?

PLOTKIN: Well, what I can tell you in our community locally is that it has reignited our desire to ensure that we sustain and protect Jewish life in our community. It has led us to the re-establishment of a Jewish community relations council that will allow us to build ally ships with law enforcement, with public educators, with leaders of other faiths so that we can live and thrive in a community where everybody's race, religion and identity are accepted.

KEILAR: Jennifer Plotkin, we appreciate your time this morning. Thank you.

PLOTKIN: Thank you so much.

KEILAR: As Twitter executives try to figure out how to handle the spread of misinformation on its platform, its new owner shares a link from a website known to promote conspiracy theories.

BERMAN: And how will the attack on her husband affect Speaker Nancy Pelosi and her critics? Pelosi's biographer joins us ahead.