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CNN Live Event/Special

Justice Antonin Scalia's Funeral Begins; Antonin Scalia's Career as Supreme Court Justice Examined. Aired 10-11a ET

Aired February 20, 2016 - 10:00   ET

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

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[10:00:13] WOLF BLITZER, CNN ANCHOR: Welcome to our special coverage for the funeral of the late U.S. Supreme Court Justice Antonin Scalia. I'm Wolf Blitzer in question. In about an hour from now, family members and friends will celebrate Scalia's life and his legacy at the Basilica of the National Shrine of the Immaculate Conception here in Washington, D.C. The funeral service begins 11:00 a.m. eastern, followed by a private burial.

The 79-year-old was a leading conservative voice on the Supreme Court for nearly 30 years. He died suddenly a week ago today in his sleep at a Texas hunting resort. Known for his sharp mind and brash demeanor, Scalia leaves the Supreme Court transformed by his intellect, his ideology, and his sheer presence. His family life just as extraordinary as his presence on the high court, Scalia leaves behind his wife of 55 years, Maureen, their nine children, and their 36 grandchildren. One of his sons is a Catholic priest, Father Paul Scalia. He will be leading the mass. He'll be delivering the homily later this morning.

We will also hear a scripture reading from close friend, fellow Justice Clarence Thomas, who shared his belief that the Constitution should be interpreted as it was understood by those who drafted it. Other justices on the Supreme Court are also expected to be in attendance as well as the vice president, Joe Biden, and a host of other notable lawmakers.

You'll watch the entire funeral here on CNN, but before it begins I want to bring in CNN chief Washington correspondent Jake Tapper, also our CNN senior analyst Jeffrey Toobin. Also with us CNN contributor Joan Biskupic. She's Scalia's biographer. She wrote the book "American Original." She is now Reuters' legal affairs editor. Also joining us from outside the basilica, CNN's Carol Costello, and our justice correspondent Pamela Brown, and our CNN religion commentator Father Edward Beck is with us as well. Jake, this is an important day in American history because he was such a powerful figure on that Supreme Court.

JAKE TAPPER, CNN CHIEF WASHINGTON CORRESPONDENT: There are three ways I think that Justice Scalia really touched the lives of people in this country. First of all, in this town he was somebody whose friendship were not dictated by his personal believes. Everybody knows that he and Ruth Bader Ginsburg, one of the liberal justices on the court, were, as she described it, best buddies. But he was somebody who really pushed away the modern convention of you're not allowed to be friends with somebody who has different political views, at least in this town. And that's something remarkable, something that's being heralded today.

Second is his keen legal mind. I know Jeffrey and Joan will have a lot more to say on that. And third was, for conservatives he was truly a beacon for three decades, somebody whose views of the law and the Constitution they could follow and admire. And while liberals and conservatives and Democrats and Republicans came and went in this town, he was always there for three decades.

BLITZER: You can't exaggerate how important he was.

JEFFREY TOOBIN, CNN SENIOR LEGAL ANALYST: That's right. Every Supreme Court justice has a vote. And every vote is the same. But there are very few justices who leave a legacy of ideas that go well beyond his individual influence. When you talk about originalism, which is the idea that the Constitution should be interpreted as it was understood by the framers, an idea that leads to very conservative results in modern day -- no abortion rates, no gay rights.

The other idea is textualism, the idea that laws, that statutes should be interpreted only on their own terms and that legislative history and the intent of the Congress is irrelevant, the words alone control. Those two ideas will long outlive Justice Scalia in terms as his legacy.

The question, of course, and one reason why the confirmation fight to succeed him is so intense already, is that those ideas are very controversial. And they are not shared by the incumbent Democratic administration. So he is an enormous figure, but his ultimate influence has yet to be determined.

BLITZER: You wrote, Joan, his biography. You spent a lot of time speaking to him and learning about him. Give us insight into this unique and unusual jurist.

JOAN BISKUPIC, CNN CONTRIBUTOR: He was. And I think a couple of things. One, he was a manifestation of the Ronald Reagan revolution. And what we're seeing is a moment when the revolution could start to fade because he was such an embodiment of that conservative approach to the law.

But then also, this is a good moment for us to be thinking about him beyond the law because he used to say he could not separate his intellectual life from his spiritual life.

[10:05:00] And here we are watching what's going to be I'm sure quite a pageant of a funeral service for him, and it will be part Mozart, it will be part Clarence Thomas. There will be so much that represents what he was all about personally too.

He mentioned to Jeff yesterday, they have a beautiful portrait of him in the great hall of the Supreme Court right now as his body was there in repose, and it was a portrait where he's kind of sitting back in a chair. And I never knew him to be somebody who would sit back in a chair. He was almost always ready to leap out. And that was his personality on the law, during oral arguments, ready to sort of seize on the man or woman that was standing at the lectern, and also to seize on any kind of legal idea and put his own imprint on it.

BLITZER: We're looking at these live pictures of the Basilica of the Shrine of the Immaculate Conception. Jake, this is going to be a very traditional Catholic service, a Catholic mass that will walk through all the traditions that Justice Scalia loved so much.

TAPPER: It's a special mass for lawyers and legal scholars and government officials every year. And Justice Scalia attended that mass more than he attended States of the Union addresses. His Catholic faith was so important to who he was. His family has so many accounts of how devoted he was to his religion.

And in fact, and we'll talk to Father Edward Beck, if I can bring him in from Chicago, there was a speak Justice Scalia gave in 2012 in which he said, if I can quote him for a second, "God assumed from the beginning that the wise of the world would view Christians as fools and he has not been disappointed. If I have brought any message today, it is this -- have the courage to have your wisdom be regarded as stupidity, be fools for Christ." What does that mean to you, Father Beck?

FATHER EDWARD BECK, CNN RELIGION COMMENTATOR: It means that Christ for him, Jake, was paramount. He was a staunch Catholic. A traditionalist in the same way he was a traditionalist as a justice. He and his family, his wife Maureen and nine children, would travel to go to Latin mass because they wanted a more traditional mass, and that's what Scalia really enjoyed having.

You'll hear some Latin at today's mass, mostly in song. It will be in English. But his son is a priest. Reverend Paul Scalia from the diocese of Arlington will be saying and preaching this mass. And I can tell you as a priest who just preached his own father's funeral and said the mass, it's not an easy thing to do. Are you priest or are you son? So Justice Scalia's son today has to be both. He has to stand there and preside at this mass. He has to preach a homily about his father, integrating it into the Gospel, and yet he is also a grieving son who has lost a father. So no easy task for him today.

TAPPER: Not an easy task, but what an honor to be able to do for a father, especially a father as devoted to Catholicism as Justice Scalia was. Carol Costello is outside the basilica right now. Carol, tell us what you're seeing and tell us about the scene.

CAROL COSTELLO, CNN CORRESPONDENT: Such a beautiful scene out here. It's somber but so beautiful. This basilica is the largest Catholic church in the United States in north America, one of the 10 largest in the entire world. In fact there's a dome on top of the Basilica that is nearly as large as the capitol dome. You can see very many people and that is important, because they're expecting 6,000 people. I just talked to a Secret Service agent who said yes, we're expecting 6,000 people. The capacity inside the chapel, inside the church, is 4,000. It can seat 3,500 people, but they've made a standing room only area. And that can accommodate 1,000 more people. So certainly it will be an overflow crowd.

And when Justice Scalia's body was lying in repose in the Grand Hall of the Supreme Court yesterday, they had about 6,000 people pay their respects. The lines at some points were four to five hours long. There is great interest in this man today.

Among the special guests coming to the mass will be Joe Biden, the vice president, his wife Jill, Loretta Lynch, the attorney general, Dick Cheney is expected to come, all of the Supreme Court justices including the retired justices Souter and Stevens. Also Ted Cruz is expected to take a break from the campaign trail. And you know the all-important South Carolina primary is being held today, but Ted Cruz will leave the state to come to the service today to honor Justice Scalia.

As you guys mentioned, Justice Clarence Thomas will offer a reading in church today along with one of Justice Scalia's friends Leo Leonard. He's a Constitutional scholar. Justice Thomas, as you know, is also Catholic so that will be quite moving. And as Father Beck said, the Reverend Paul Scalia will deliver the homily, which I can't even imagine how that will be for him. But we do expect the service and the homily to be beautiful. Back to you.

[10:10:07] BLITZER: It will be a beautiful service indeed, and it's getting ready to get started here in Washington, D.C., at the basilica. You're looking at live pictures right now. In just moments we expect to see Justice Scalia's casket arrive at the basilica. We'll also bring that live. First we'll also talk a little bit more about Father Paul Scalia, Justice Scalia's son. He's acting as the celebrant delivering the homily. All the significance, much more of our special coverage right after this.

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[10:15:00] TAPPER: Welcome back. You're looking at live pictures from Washington, D.C., of the Basilica of the National Shrine of the Immaculate Conception. It's the largest Roman Catholic church in North America. And its' where more than 3,000 mourners will gather today for the funeral of Supreme Court Justice Antonin Scalia. We just saw Senator Ted Cruz, a former Supreme Court clerk for Judge Rehnquist, go into the church. The service will get underway in less than an hour from now that will be led by one of Scalia's nine children, Father Paul Scalia, his son, a Catholic priest who currently serves the diocese of Arlington, Virginia. He will serve as the celebrant. He will also deliver the homily. No eulogy will be given, we're told.

Yesterday we saw Father Scalia saying a prayer over his father's casket as Justice Scalia was lying in repose inside the Supreme Court building. Scalia's four other sons will also play roles today as pallbearers for their father. Let's bring back Father Edward Beck and Scalia biographer Joan Biskupic. Father Beck, tell us what we're going to see initially and the significance of it for people who are not familiar with a Catholic service.

BECK: Well, Jake, the body of Justice Scalia will be met at the doors of the basilica. And the casket will be blessed back there. It will be sprinkled with holy water reminiscent of the baptism of Justice Scalia. Justice Scalia, by the way, was baptized in the cathedral in Trenton, New Jersey, that's where he was born. And so coming now to the time of the mass of resurrection, a white pall will be put over the casket, a symbol that he is clothed in Christ as the resurrection now, sprinkled with holy water. And then that will be done in silence. And then the casket will be wheeled down the center aisle followed by his family. The bishops, the concelebrating priests, and then the traditional Catholic mass, the funeral mass of resurrection, will begin.

TAPPER: Joan Biskupic, as a biographer of Justice Scalia, I wanted to ask you a question, I heard one of Justice Scalia's former clerks, Paul Clement, who was also a solicitor general and has gone on to have quite a legal career of his own, saying today on Michael Smerconish's show, that Scalia really changed oral arguments, that there would be maybe two or three questions asked during oral arguments before Scalia was appointed to the court in I believe 1986, but then after Scalia arrived, that changed. Tell us more.

BISKUPIC: It was so true, Jake. As I said, he was always coming out of his chair. He had a law professor's insistence on questioning, challenging. And he did it so vigorously in those early days that then Justice Lewis Powell whispered to Thurgood Marshall I think it was, "Do you think he thinks the rest of us are here?" Because he so dominating. And for those of us who cover the arguments now, it's quite vigorous. We call it a hot bench.

But back in 1986, Justice Scalia had such youth compared to the other justices. He changed the rhetoric. He changed the challenging nature of it. And I don't think it's going to go back in a long time from that.

It occurred to me as a father was speaking about the service that we're about to see. You know, Maureen Scalia met the justice when they were on the campus in Cambridge, when she was a student at Radcliffe and he was at Harvard Law School. And what the justice told me what really made them click was their Catholicism. Here's a woman who was valedictorian of her high school, and back in the '50s she was going to Radcliffe, but she gave up any kind of career to be married to him, have these nine children, to devote herself to that kind of family life. And I think that's part of what we're seeing on display today.

TAPPER: Let's bring back Wolf Blitzer and Jeffrey.

BLITZER: Jeffrey, this is a moment that combines religion and the law, if you will. That was the two most powerful influences on Justice Scalia.

TOOBIN: And the fact that we are having this service at all is a sign of change at the Supreme Court. There wasn't even one Catholic on the Supreme Court until just before the Civil War with Chief Justice Taney. Today -- and there wasn't a Jewish justice until Louis Brandeis around World War I. Today the Supreme Court, or before Justice Scalia died, there were six Catholics and three Jews on the Supreme Court. There are no protestants on the Supreme Court. It's an example how religion, which was once such a defining difference in American life, has faded somewhat. And the fact that is a traditional Catholic mass goes really without comment because a lot of people are Catholic or Jewish or protestant. It's not as big a deal as it once was.

TAPPER: It's interesting, Jeff, and you and I were talking about this earlier, the number one a critic of how homogenous the Supreme Court was, now in terms of religion, but in terms of law schools, elite, Ivy League law schools, was Scalia. And he would talk about how there should be more diversity, people who went to smaller law schools, not necessarily Harvard or Yale Law school, no offense.

[10:20:24] TOOBIN: None taken.

TAPPER: And he was somebody who wanted different kinds of people.

TOOBIN: And also when Justice Alito replaced Justice O'Connor, all nine justices were former appeals court justice. The court that decided Brown v Board of Education in 1954, not one of the justices had ever been a judge before. You had Earl Warren who was governor of California. You had Hugo Black who was a senator. It used to be a very diverse, professionally, group. Now there is not much diversity as we define it in terms of gender and religion, but there is not much diversity on the Supreme Court when it comes to professional background, law school, and whatnot.

BLITZER: Some of them may have gone to Harvard but others went to Yale. That's about the diversity of the U.S. Supreme Court.

All right, coming up, we're going to take a closer look at Justice Scalia's decades of service, the friendships he's made, and the impact on the Supreme Court. We're awaiting the start of the funeral service. Much more of our special coverage right after this.

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[10:25:58] BLITZER: Looking at live pictures of the basilica. The funeral services getting ready to start in about a half an hour or so from now. Justice Antonin Scalia left all of us with a valuable lesson, a lesson that friendship can transcend, he often said, any differences we may have. That especially rang true with the woman Scalia often called his best buddy, Ruth Bader Ginsburg. Even though they disagreed, they exchanged some harsh words from time to time, the enormous respect was very evident, the admiration, the friendship they had for one another was clear to all of those who watched them up close.

So as we await the start of the funeral, we can expect that message to resonate loudly and clearly at the service during the sacrament of the communion. In today's program the church is calling Catholics, fellow Christians and non-Christians alike to express in their hearts a prayerful desire for a unity of the human family, something Scalia strived for throughout his entire life.

Let's bring back all of our experts on this subject, Jake Tapper, Jeffrey Toobin, Joan Biskupic. Joan, you spent so much time with him. You have to assume if he were watching this right now, he would be so, so thrilled.

BISKUPIC: He would be thrilled and would be offering commentary. He's have a few dissents. He always had something to say. We were talking about his Italian-American heritage and the fact that part of what drew Ronald Reagan to him in 1986 and made his confirmation go smoothly was that he was the first Italian-American justice.

And I remember him telling me about the first time he had gone back to Italy after his confirmation, and there was a parade down a main street. He was, you know, honored in every way. And he got up on some balcony, and they were cheering, and he said two things to me. He said, first, he thought he believed that the crowd might have believed he was Ronald Reagan, they were giving him so much praise. But the other thing he said, "I felt like Mussolini." That was so him. He loved the pageantry. He loved to be the center of attention. I always kidded about how not only was he an only child in his big Catholic clan, the only child of his parents, he was also the only offspring of his generation. So he had the spotlight early. And even in death he has not left it.

BLITZER: He was the pride of Qqueens in New York. I guess he has some New York values, if you will, at the same time, growing up in Queens, in Elmhurst. That came through throughout his entire life.

TOOBIN: Another weird fact about the current Supreme Court is that there are four New York City boroughs represented on the Supreme Court. Justice Scalia was from Queens. Ruth Ginsburg is from Brooklyn. Sonia Sotomayor is from the Bronx. Elena Kagan is from Manhattan. Tragically, Staten Island is unrepresented. I don't know if that will be addressed by the new appointment.

But Justice Scalia really loved being from New York. And it was one reason that he and Ruth Ginsburg who were almost exactly the same age, they had a shared experience of growing up. I remember he once told me that in his day, he went to school in Manhattan, high school in Manhattan, and he took riflery. And he used to take his rifle on the subway to school every day. I was thinking to myself, as many times as I've ridden the New York subway I've never seen someone with a rifle. And I think it's just a sign that in perhaps his most famous opinion as a Supreme Court just case was the Heller case where he said in 2008 that the Second Amendment does protect an individual's right to bear arms. Maybe that goes back to his riflery training back when he was a kid.

BISKUPIC: Or he actually on Long Island used to shoot at rabbits when he was 10 with his grandpa. So he's always had a little sportsman thing going on.

TAPPER: We're waiting for the funeral service to begin. When we come back, we're going to talk it to our experts about what traditions we can expect and the significance to the service. Plus we'll take a look at who is honoring the late Justice Scalia as our special coverage continues back after this quick break.

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[10:34:15] TAPPER: Welcome back. Right now we are waiting for the casket bearing Supreme Court Justice Antonin Scalia to arrive at the Basilica of the National Shrine of the Immaculate Conception from the U.S. Supreme Court. That's where Scalia was lying in repose yesterday. And 6,000 people, including president and first lady Obama, filing past Scalia's coffin yesterday. Today a number of dignitaries will attend the funeral, including Vice President Joe Biden, who had a long relationship with Scalia. Also Attorney General Loretta Lynch, Republican presidential candidate Ted Cruz who was once a Supreme Court clerk for Justice Rehnquist, as well as retired and current Supreme Court justices and the widows of former justices.

[10:35:00] One of the current justices, Clarence Thomas, was Scalia's ideological soul mate on the bench. They voted together quite a bit. Thomas will read a passage from the New Testament at the service today.

For more on what we will see once this funeral begins, let's bring in CNN anchor Carol Costello and CNN justice correspondent Pamela Brown as well as Father Edward Beck. Carol, let's start with you. First of all, set the stage for us, where you are, who you've seen come in so far, and what we're examining at the beginning of the service.

COSTELLO: Literally hundreds of people have streamed into the basilica so far, at the basilica in northeast Washington. As you can see behind me, it's a quite a beautiful church. We're expecting Justice Scalia's casket to arrive at any time because of course the church service starts at 11:00 a.m. eastern time. We're expecting the casket to arrive at 10:45 eastern time.

TAPPER: Carol, I'll interrupt you for one second, I'm sorry. Carol I'm going to interrupt you for a second because we're looking at live images right now of Justice Scalia's casket being taken from -- in a hearse from the U.S. Supreme Court on its way to the basilica. I'm sorry for interrupting, please proceed.

COSTELLO: Oh, no worries. So it's just leaving the U.S. Supreme Court right now, and it's on the way here to northeast Washington to the basilica. When it arrives here, the casket will be taken out of the hearse. Four of Justice Scalia's sons will act as pallbearers and they'll take the casket up all of those steps into the basilica where the casket will be blessed with holy water and draped with a white cloth, and all of that symbolizing the baptismal gown. And then the casket will be brought up to the alter and a church service will begin.

And it will be a simple mass. Part of the mass will be said in Latin because that's what Justice Scalia preferred. I don't know if you've ever sat through a Latin mass, but it's one of the most beautiful proceedings I've ever experienced. They used to say Latin masses a lot when I was a youngster, but most Catholic churches across the country have stopped doing that because they wanted to attract a younger crowd.

We understand that 64 family members will be in attendance along with very famous people like Joe Biden and Ted Cruz and Dick Cheney. But you know what, the people streaming through right now are friends and family. We had a chance to talk to a few of them, and their stories are touching about Justice Scalia and his family.

One of them was an 80 year old man who was wearing an American flag scarf who is a long-time friend of Justice Scalia. He has a son that's a judge in Arlington. That's how they met. They often had dinner with the Scalias and he's here to pay his respects.

We also talked to a high school teacher who is a friend of the Reverend Paul Scalia who will be saying his father's homily in mass today. He teaches a lot of Justice Scalia's grandchildren. As you know, Jake, Justice Scalia has 36 grandchildren. So as this man told us he's had the opportunity to teach a lot of Justice Scalia's grandchildren. But he's here just because, you know, Justice Scalia was a lovely man and he wants to pay respects to a friend and a beloved person.

You can see on your screen right now I believe Justice Thomas. As you know he will be reading scripture in church along with another conservative friend of Justice Scalia. They will be reading readings from the bible. And then of course the Reverend Paul Scalia will take over, say the mass, and deliver the homily.

I know there's no official eulogy, but having been to many Catholic funerals, sometimes there's someone who stands up and will say a few words. That could happen. We have not confirmation of that, but you never know, Jake.

BLITZER: We just saw Clarence Thomas. He's going to be offering a reading as well as you just heard. Pamela Brown, you cover the Supreme Court for us. Leonard Leo, executive vice president of the federal society for law and public policy studies, he's going to be offering a reading as well. Ideologically form the conservative perspective they were very close on a legal basis.

COSTELLO: Absolutely. And the fact that he was such a staunch conservative is really so much of who he is. And so it's no surprise that he will be part of the service and his son Paul as well. And Paul was also here at the private ceremony yesterday in the Supreme Court. You can't imagine how emotional it must have been for him doing his duties as a priest, but also this is his father. So it must be very emotional. And it was really remarkable. I was at the Supreme Court all day and all night, and even when the doors were supposed to close at 9:00, they extended it for an hour because so many people came out. There were still long lines. People waited for hours to go in and pay their respects. And they had to basically extend it for several hours because there were so many people, 6,000 people showed up.

And this was someone, as we know, we've been talking about, he was a conservative giant. Not everyone agrees with his opinions. But what was remarkable yesterday, some of the people who showed up said, I don't agree with his politics.

[10:40:00] But this was someone who gave 30 years of his life to service, to public service, and he really changed the way the justices looked at the law with his textualism and originalism belief. And what really stood out to me being out there was this makeshift memorial on the steps of the Supreme Court. And it wasn't a typical makeshift memorial. You would expect flowers, cards, but there was a jar of applesauce and broccoli on the front steps. And that was a nod to Justice Scalia's colorful comments that he made during the Affordable Care Act arguments, the applesauce, you may remember in his dissent he said the majority's opinion was pure applesauce. The broccoli, that was a famous part of the arguments during the first Affordable Care Act case.

BLITZER: Jake, we just saw Senator Ted Cruz sitting down along the aisle over there. Originally one of his press secretaries said he was not going to be able to attend, but he changed his mind. He's there right now.

TAPPER: Cruz of course a former Supreme Court clerk for Justice Rehnquist saying that Justice Scalia influenced him quite a bit, especially when he was a clerk.

Father Beck, I was reading a remembrance of Justice Scalia but one of his sons in the "Washington Post." And it described the way that Justice Scalia attended church, how he attended church, sitting in the pew, and if he disagreed with something the priest was saying he would turn to his family. He would shake his head. It sounds like he approached the laws of the church in much the same way he approached the laws of the United States.

BECK: I think that's very true, Jake. I heard a comment of the justice. He was asked why he had nine children. And he said well, you know, I'm a good Catholic and I played Vatican roulette and the house won. So he said, according to his Catholicism he did have nine children and they would go to mass, again, that Latin mass at St. Catherine of Siena Church in Glen Falls, Virginia, not the closest church to where they lived, but they wanted that more traditional mass. And as you said, if he didn't like the homily, he'd shake his head. He'd make a face at his wife. If he liked it, he would compliment the priest afterward.

But he was a man who certainly had his own opinions about faith. But he said there's no such thing as a Catholic justice. One quote that I read that I thought was very, very poignant. He said "The only article of faith that a justice has to pay attention to is "thou shalt not lie." And he really believed as a justice he had to separate his faith from his jurisprudence. We believed in the Constitution. We know he was an originalist. And he said that is what a judge must do, pay attention to the Constitution. Your faith guides your moral standing and guides your ethics and values. And certainly I think you would have to say when you read some of his opinions and some of his dissents that his faith did get in there a little. Maybe same-sex marriage would be one of those cases.

And yet even with something like abortion, I'm so intrigued that he could be against Roe v. Wade, saying that there is no Constitutional right for a woman to be able to have an abortion, but he also said but the states should be able to decide. So he wasn't an absolutist in so many ways, and he saw that the law as needed to be interpreted is what was paramount.

TAPPER: Very interesting. Let's go to Carol Costello who is outside the Basilica of the National Shrine of the Immaculate Conception. Carol?

COSTELLO: We just saw the Supreme Court police. You know, they have a number of officers here, they just got into formation. I'm going to check and see what's happening now. They went inside the church which means -- we see them lining the steps over there, which means that Justice Scalia's coffin, casket, must be very close by. In fact I hear sirens in the distance right now.

We expect it at any moment because just about 10 or 15 minutes ago it left the Great Hall of the U.S. Supreme Court. It doesn't take long to get here to northeast Washington to the basilica. People are still streaming through. They have security set up on either side of the basilica. People are going through magnetometers. And there are still people coming in, mostly family and friends right now. Most of the famous friends of Justice Scalia are probably inside the basilica right now. We saw Senator Ted Cruz go up the steps. He was alone and went into the service to pay his last respects.

TAPPER: All right, Carol Costello outside the basilica.

BLITZER: We're waiting for the casket to arrive. We saw it leave the U.S. Supreme Court in that hearse, heading to north capitol all the way to the basilica which is right next to Catholic University of America. This is the largest church in the United States. And the family members will be there, a very impressive family indeed, as we've been pointing out, nine children, 36 grandchildren. Among the pallbearers will be several of his sons.

[10:45:00] TAPPER: Eugene, John, Matthew, and Christopher, obviously his son Paul, who is a priest, will be conducting the service.

TOOBIN: I was just going to say, Father Beck made an interesting observation about how Justice Scalia's Catholicism may have influenced his jurisprudence. It is also true that several of the more liberal justices in the history of the court, William Brennan, Sonia Sotomayor, are also Catholic and also serious Catholics. And so the idea that your religion determines how you vote is not really proven to be the case at the Supreme Court.

TAPPER: Joan Biskupic is at the basilica as well. Joan, tell us what you're seeing.

BLITZER: I don't think she's over there yet. She's here. Joan is a biographer of Antonin Scalia. Just give us a quick thought, what do you think his most important decision was on the nearly 30 years he served on the Supreme Court, the most important opinion he wrote?

BISKUPIC: Well, I would say, if you're talking about ones where he actually had the majority -- oh, good, you can hear me OK. Wolf, I think it would have to be the 2008 Heller case in which the Supreme Court for the first time said that the Second Amendment to the Constitution does protect individual gun rights. Justice Scalia has written many, many opinions. Some of his most colorful opinions have been dissents. The ones that charged up the right wing base have been dissents. But when you're talking about majority opinions, he get a narrow five-justice group to band together to really issue a landmark decision on gun rights.

One of his early ones, though, that I'll just mention to you in terms of dissents, was I think it was -- he came on in 1986, and in 1988 he was the lone dissent in a case that looked at a federal statute that he wanted to reject it when the majority wanted to uphold it. It was a federal prosecutor statute. And he had a memorable line that said sometimes an issue like this comes clad so to speak in sheep's clothing. This wolf comes as a wolf.

BLITZER: Very quickly.

TOOBIN: When we're talking about his judicial record, you can't talk about his judicial record without talking about his enormous hostility to the cause of gay rights. In every decision when he was on the court, he voted against the plaintiffs who were gay, whether it was the challenge to the Defense of Marriage Act, whether it was marriage itself. And in very vituperative terms he talked about the court imposing its values, neutral values about gay people, when in fact there were many people, he said, who regard homosexuality as immoral. Those people deserved their views honored too. And so that's why he was not a hero in the gay community.

BLITZER: I want to get Father Beck in for a moment. Father Beck, his eminence, Cardinal Wuerl, the archbishop of Washington, will be here at this service. Also his excellency, the most reverend Carlo Maria Vigano, the apostolic nuncio, the representative of the Vatican, will be here as well. Explain the significance. These are among the most important Catholic representatives in the United States.

BECK: Yes, that's right, Wolf. We have of course cardinal archbishop of Washington, Cardinal Wuerl. He'll give some opening comments. We also have the bishop of Arlington, Virginia, which is the diocese where Father Paul is a priest. He will be there as well. That's father --

BLITZER: Loverde.

BECK: Paul Loverde, exactly. And then, as you said, the apostolic nuncio will be there as well. I'm sure they'll be some other bishops and concelebrating priests there as we. When a priest's father dies, the clergy definitely show up. So we will see that and we'll hear some of that in the cardinal's remarks in the beginning.

Something interesting, Jeffrey was just talking about Justice Scalia's stands with regard to same-sex marriage. His son Paul, who will be presiding and preaching at this funeral, happens to be the chaplain of Courage for the diocese of Arlington. And for those who do not know, Courage is an organization of gay Catholics who believe that the only appropriate response to their orientation is abstinence. So his son, Father Scalia, is the chaplain for Courage for gay Catholics in that diocese. BLITZER: Carol Costello is there at the church. Carol, I take it

that the hearse and the special guests are now arriving. The service is about getting ready to begin.

[10:50:03] COSTELLO: Yes, we believe the hearse, those white vehicles, the one in the front, is the hearse, but I'm not quite sure. I want to wait until they open -- yes, it appears to be, because they're taking flowers out. No.

But the service is going to start very soon, because, as you can see, the priests are assembling on the altar right now. There is a line of black cars right here. OK, these are not the hearse, so that was a false alarm. But it should arrive very soon because everybody is assembled as you can see, Wolf. Those are the police force from the U.S. Supreme Court. They're in formation now. Everybody is waiting. There's very heavy security surrounding the basilica right now. So we do expect the hearse to arrive at any moment.

BLITZER: This is the Basilica of the National Shrine of the Immaculate Conception, where this mass of mass Christian burial will take place.

Jake, there's been some discussion that the president of the United States was there yesterday at the U.S. Supreme Court to pay his respect as the body lie in repose, but he's not attending today. Vice President Joe Biden will attend. And it's been a source of some discussion, as you know.

TAPPER: That's right. Some of the president's critics have said that this is an example of the president not reaching out to conservatives as he could and should at a time like this, a time of mourning. Others say that as the president he should attend the funeral of every Supreme Court justice.

The response from the White House, Wolf, has been they thought President Obama going to the service yesterday at the Supreme Court was more personal and a more meaningful way for the president to do it. Two, that Vice President Joe Biden had a very long and deep relationship with Justice Scalia and they felt it more appropriate for have the Biden to go. Three, the White House says not everybody appreciates all that comes with a presidential visit, including tremendous security, a lot of pomp, and that might not be appropriate or what a family wants at a moment like this. And lastly, I was referred to comments that a former clerk of Justice Scalia, Ed Whelan, who was a noted conservative in town, made in which he said he didn't think it was inappropriate for the president to attend the memorial yesterday where Scalia was lying in repose at the Supreme Court as opposed to the funeral. But like so many things in this town, it has become a political controversy.

BLITZER: It certainly has. And, Jeffrey, the White House yesterday said the president would spend the weekend with binders of potential nominees to succeed Justice Scalia. He is going to be busy looking at all of that. He hasn't supposedly come down with a short list yet. But the criticism of the president is it would have been a gesture on his part for him to come to the funeral because especially he would like to see the Senate have hearings for whoever he nominates and then approve whatever he nominates to be the next justice of the Supreme Court.

TOOBIN: One of our eagle-eyed colleagues blew up a photograph of President Obama yesterday and a binder, and he noticed it had nine tabs in it. So it could be there were nine names that he's looking at. It could be a completely irrelevant fact that there are nine tabs there.

But the White House was very clear yesterday in saying there is not yet a short list. They haven't brought anyone in to interview yet. It is a complicated process. The vetting alone to make sure there are no skeletons in the closet, that all the nanny taxes have been paid, all of that stuff is something that takes time. So it is not going to be an announcement this week. The president leaves for Cuba, I believe, on March 20th. I would think before then would be a likely time for an announcement. But it's not going to be next week. And it probably won't be the week after either.

TAPPER: Let's bring in Joan Biskupic, Supreme Court reporter as well as a biographer of Justice Scalia. Joan, Justice Scalia replaced Sandra Day O'Connor, so it's not necessarily a requirement that you share the exact temperament and philosophy of the person you are replacing. I'm wondering if Justice Scalia in your view ever suggested whom he may want to replace him should that day ever come.

BISKUPIC: Yes, Jake, Justice Scalia actually replaced William Rehnquist who elevated to Chief Justice. What you're probably remembering is 2005 when the chief then left and Sandra Day O'Connor did. He came on in 1986, succeeding William Rehnquist who was elevated.

TAPPER: Of course, sorry about that.

BISKUPIC: And Jake, I'll just tell you one thing that will amuse you about how you all are talking about who the choice will be. He was actually interviewed by Ronald Reagan on a Friday, and he thought it went well, but he was very anxious about how it went because he had earlier try to get the U.S. solicitor general spot. That's the person who argues before the Supreme Court, and it had gone to Rex Lee instead.

[10:55:11] And so that whole weekend after Antonin Scalia was interviewed by Ronald Reagan, he didn't tell anyone but his wife, because he thought, I don't want to jinx it. And then sure enough, Monday morning in '86, he was able to formally know that he would get the nomination.

But in terms of your question of who he would want, he's not going to get somebody who is exactly like him, but I am certain he would want a conservative. Wherever he is right now, he's thinking, darn, there's a chance that someone like Ruth Bader Ginsburg is going to get my seat? So he probably wouldn't want a really long process that would lead this very important institution of government open for months and months with just eight justices. But he actually was quite a political man. TOOBIN: And that's another thing. These are worldly, sophisticated

people on the Supreme Court. They know exactly what the politics is of these appointments. They know that if they retire, they make their decisions about when to retire in line with which president is in office. So the fact that John Paul Stevens and David Souter left at the beginning of Barack Obama's presidency meant that they knew they would be replaced by justices who were ideologically in line with them, and they were, with Sonia Sotomayor and Elena Kagan. So these justices do not live in an ivory tower when it comes to politics. They know precisely what the score is.

BLITZER: And he was certainly not shy. Pamela Brown, you cover the Supreme Court for us. You would often go listen to the oral arguments made. Unlike Clarence Thomas, who never asked questions, he was always very deeply involved in all of these issues, questioning people who were coming before him.

PAMELA BROWN, CNN JUSTICE CORRESPONDENT: Normally right off the bat, Wolf. It's almost as though he wanted to pounce, especially when he could sense a lawyer was unprepared. I think Jeffrey will agree with that. He really changed the way the oral arguments were. Before that it wasn't as energized and fiery. And now Justice Scalia sort of changed that. He would ask questions and fiery questions.

And I think his absence will certainly be deeply felt on Monday, Wolf, when oral arguments resume and his chair is now draped in black wool. And I think he's going to be missed. I talked to Carter Phillips, who has argued in front of Justice Scalia more than any other private lawyer. And he said when he was prepare before, he always would keep in mind, OK, how is Justice Scalia going to come back at me, and he will be arguing again on Tuesday, he said it's going to be profoundly different as a direct result of him not being there on that bench.

BLITZER: It looks like that hearse is about to arrive at the Basilica of the National Shrine of the Immaculate Conception. You see a lot of photographers and journalists waiting right in front of the church there. The casket will be brought inside. The service will begin. It looks like that motorcade bringing the casket is just arriving, Jake. And this will be a formal ceremony, taking that casket in with the pallbearers on the scene. You know what, let's just listen and watch for a moment as this process begins.