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GOP Rivals Battle For South Carolina Voters; Trump Calls for Boycott of Apple; Interview with Pat Buchanan; Justice's Three Decades of Influence. Aired 9-10a ET

Aired February 20, 2016 - 09:00   ET



[09:00:05] MICHAEL SMERCONISH, CNN ANCHOR: I'm Michael Smerconish, live from Washington D.C..

What happens today is going to determine a lot, the outcomes of the South Carolina Republican primary and Nevada democratic caucus will be a presidential reset.

If Hillary Clinton loses to Bernie Sanders in Nevada, might it foreshadow another collapse like in 2008? And he certainly is not expected to win, but how badly Jeb Bush loses could determine whether this is the end of the line of his campaign just another indication of what an unpredictable election this has already been.

Most of all, the Republican who is projected to win today keeps confounding everything we thought we knew about politics after baiting the Pope himself into a holy war. Donald Trump now has called for a boycott of one of the most popular American corporations, Apple. Because of its refusal to cooperate with the FBI. That's despite the fact as of yesterday, Trump himself was still tweeting with his iPhone.

Today is also the day of Supreme Court Justice Antonin Scalia's funeral. I'll talk to Paul Clement, a former clerk of Scalia's who went on to argue some 80 cases before the Supreme Court. CNN will begin coverage of that even at 10:00 a.m. Eastern.

You know, I can't help but wonder how the late justice would have adjudicated the privacy versus national security tussle in the FBI's battle against Apple. I have three experts to help me.

Mike Rogers, former FBI agent, former chair of the House Intelligence Committee Alan Dershowitz, the Harvard Law Professor Emeritus and famed defense attorney and Jeffrey Toobin, CNN's legal analyst and former federal prosecutor.

Mike, let me begin with you. Donald Trump wants supporters to boycott Apple, number five on the Fortune 500 list because Apple has said no to a Justice Department demand to unlock a phone used by terrorists who killed 14 people in San Bernardino last December. Apple says that would endanger the privacy of every iPhone user. So who is right? MIKE ROGERS, FORMER NBI AGENT: Well, I'm not sure I would agree with

the boycott of Apple, certainly just yet. I think Apple is wrong it doesn't provide some new secretive backdoor that would allow someone to get into millions of iPhones, you have to have the physical access to the iPhone and candidly, I'll throw another one under the bus, the Department of Justice coming out and questioning the motives of Apple using its legal rights to actually push back on the warrant, I think was wrong, as well. That should be better left to the politicians, maybe somebody like Trump.

But here is the problem. This is a time-sensitive case. So it's an interesting case for Apple to try to say this is where we're going to draw, make our line in the sand on the ability for us to provide an unencrypted access to an individual iPhone. That iPhone was disabled, at least the default functions about six weeks before the event which tells you as an investigator that they likely had some help. Somebody knew what they were doing to make it even more difficult to track these individuals as they were doing the preparation work for their attack.

That's an important thing to know. Are there other people in the country? Did they have other cells that were getting ready to go operational? The longer this goes more time this goes the more they need to get their act together. That's why this is such an odd case for Apple to be so public and of course, I think it's a frustration on the Department of Justice, it has a steady pushback on warrants and subpoenas over the last few months.

SMERCONISH: Jeffrey Toobin, here's what troubles me. As I understand the facts, it's not as if the data is sitting in a safe and Apple won't hand over the key. It's that the Justice Department is saying to Apple help us crack your own safe, and I think that sets a dangerous precedent.

JEFFREY TOOBIN, CNN SENIOR LEGAL ANALYST: Michael, you know, the more I get into this case, the tougher I find it. I initially had the same reaction that Mike Rogers did, which was "hey, look, this is obviously a pressing government need and Apple has the keys to the information, turn it over.

Ultimately, you know, I think I still come out that way, but the idea that it's not just information that exists, it's information that has to be gotten with Apple's assistance it makes it an unusual situation but ultimately, I think when you look at the government's pressing need, the fact that the information is unobtainable unless Apple cooperates, I think the government's interest on a case by case basis does trump Apple's need to protect it's customer's privacy.

SMERCONISH: Professor, you have written and spoken effectively about the so-called ticking time bomb cases and I usually buy into your logic in that regard but where San Bernardino occurred on December 2nd and now its mid February, is this really the ticking time bomb case?


ALAN DERSHOWITZ, PROFESSOR EMERITUS, HARVARD LAW SCHOOL: No, it's not. It's a case where both sides are exaggerating their interests. I do think that this is not the most pressing case for the Justice Department. Though I can see a compelling need to try to find out if there are more people involved and for Apple, this isn't the end of privacy. I do think that Apple could probably respond to the Justice Department by simply opening up this cell phone without creating a backdoor, without publicizing what it's doing.

It could have probably worked it out without creating this kind of conflict, and I think Apple picked the wrong case to focus on. You know, the big issue under the fourth amendment today is not this case, it's a little bit of leading involved because rich people and lots of people own iPhones. The big problem is how easy it is to get search warrants in the generality of cases. The government can get into your medical records, get into your financial records, get into your lock boxes in the bank very easily.

Search warrants are given out a promiscuously today and what I would like to see is the level of cause, probable cause required for such intrusion raised in every case. My judge who I clerked for many years ago, David Baslon (ph) once said the right of a hopeless person to the privacy of what is in his paper bag is just as important as the right of wealthy people to privacy in their banking records and I wish the courts would focus more attention on the average run of the mill case where it's so easy for the government to intrude on privacy.

SMERCONISH: Chairman Rogers, I want to show you the "L.A. Times" editorial on this subject earlier in the week. They said "the order if upheld would dangerously extend on the government's power over private industry establishing a precedent for courts to require companies to create features that serve the government's interest, not the public's and it's hard to see where that new authority might lead." Are you troubled by the argument made by the "L.A. Times" that this would be a dramatic increase of government power over private enterprise?

ROGERS: Yes, I mean, I fundamentally disagree with it. You have to find a balance. There is an alignment here between what Apple is seeking to do protect in general the privacy of users of iPhones and get that and their right to do that. This is very different.

They are seeking access to an individual device, it is named in the warrant very specifically this particular device. And what they are saying is listen, just because you have an encrypted database doesn't mean you contribute and allow to contribute criminality to happen using your device. And so there is a happy medium here and again, I think a little bit of everybody has - I agree with Alan, completely over stated and over blown. Again, the Department of Justice shouldn't be out questioning the motives of a private company that has the right to push back on a warrant, even though I think Apple should have just sat down and said listen, "we'll give you access to the device and then maybe we'll go back to Congress if we have another concerns, try to have that fight there."

To do it over this is wrong. It also presents a little inconsistency here, Michael. In China, it's very interesting. They have an extra set of keys to get data they stored on personal users in China and their argument there is its protected because we have this of keys somewhere else. It's inconsistent at best and my argument is, you're opening yourselves up for a whole bunch of trouble walking down this road on this particular case when you can use the Chinese case and other cases even prior to '14, I think some 70 different times they opened up an iPhone in criminal investigation.

So it just seems like I think there is more emotion in this than there is real substance. This is something that could have been worked out, should have been worked out and probably shouldn't have been on the front page of any newspaper in America.

SMERCONISH: Mike Rogers references China and it leads me to this concern, what if it were another nation? Apple does business all around the globe. What if some other country similarly went to Apple and said we need you to help unlock someone's phone?

ROGERS: They have to compile with the laws of the countries in which they operate. As we all know, China is an authorititarian country with none of the traditions of civil liberties that we have in our country and it's a real risk and I think if you take your iPhone to China, and I've been to China and you know that when you're on the internet in China, you know the government is following you. There is not one set of rules around the world.

We have important and valuable protections of civil liberties but I think everybody recognizes that other countries do not and these companies have to play by the rules or not go into these countries at all. There have been some high tech companies that didn't go into China for just this reason because they said look, we're not going to play by their rules.

SMERCONISH: Professor Dershowitz, what would Justice Scalia say?


DERSHOWITZ: I think Justice Scalia might very well be on Apple's side. He would have asked the question, what would the framer's or the framing generation, if they had known about this particular privacy issue have thought about it?

Now you know, obviously, the framers when they were talking about eavesdropping, we're talking about people standing by the eves of the house and listening in but he wrote the GPS case in which - that is when the government tried to put something under a car that could follow it, he asked that same question and he came to the more liberal approach.

In fact, I think many privacy advocates have lost a friend in Justice Scalia in the Supreme Court. But you know, the issue is one for the future too. Apple is threatening to create an encryption that even it won't be able to break. I think that would be a terrible, terrible mistake because then you really could have a ticking time bomb case. You really could have a phone that had the location of a nuclear bomb in a city and Apple would throw up its hands and say sorry, we invented a machine that you can't break into. I don't think that kind of machine is consistent with democratic principles. The fourth amendment is not an absolute prohibition on searches. It requires reasonableness, it requires probable cause. We ought to be focussing on those issues and raising the level that the government needs before it can intrude for all cases, not just modern new technology.

SMERCONISH: We are a court of four and only 30 seconds left. Privacy versus national security, in this one I'm going with privacy. Mike Rogers, you're on the side of national security.

ROGERS: I am at national security but you can have both.

SMERCONISH: Alan Dershowitz, you're on the side of?

DERSHOWITZ: I'm always on the side of privacy but I understand that reasonable exceptions have to be made.

SMERCONISH: Jeffrey, you're the final vote.

TOOBIN: National security in this one.

SMERCONISH: OK. Mike Rogers, Alan Dershowitz, Jeffrey Toobin, thank you so much, gentlemen.

TOOBIN: Thank you.

SMERCONISH: I bet you've got an opinion about this, tweet me @smerconish and I'll read the best later in the program.

Up next, what happens in Nevada will not stay in Nevada. If Hillary Clinton loses to Bernie Sanders, will she also lose any sense of much- needed momentum and is it time to trim the Republican herd? Today's results in South Carolina could prove the waterloo for several candidates.



SMERCONISH: Today is d-day in Nevada, D as in democratic caucuses. The stakes are high for Hillary Clinton after a narrow victory in Iowa and a thrashing in New Hampshire. She had once considered Nevada a fire wall but Bernie Sanders has come on strong. Could this be the start of a fade for Clinton a la 2008. We got a lot to discuss with our political panel, Roger Stone is a political pro, a former advisor to Trump and Nixon and Reagan, Ellis Henican is a liberal columnist and author. Welcome to both of you.

Ellis, how essential is it for Hillary Clinton to win Nevada?

ELLIS HENICAN, LIBERAL COLUMNIST: It sure would be nice. I mean, the notion that it's a fire wall, though, has run head long into Bernie wearing an asbestos suit and carrying a very powerful nozzle. I would say that her firewall is really more in the south which - whose democratic parties have become increasingly African-American. She does seem to have a grip on that but no, the Nevada fire wall is a mirage, at this point.

SMERCONISH: You say that because of her strength, her perceived strength among people of color and just today in the "Chicago Tribune" if we can put this up on the screen, surfaces this photo of a young Bernie Sanders, you know, wearing I think painter's pants in his Stan Smith's and horn-rimmed glasses, looks a bit like Al Franken being arrested in 1963 on the south side of Chicago in the civil rights movement. I think that's a picture that's going to speak a thousand words.

HENICAN: It's a nice one and he's able to point to a couple of other things half a century ago or so. But you're right, Michael. If that begins to crack, I'd say she's in real trouble. I'm not really worried about Vegas on her behalf but yes, if the African-American support fades, I think she really needs to go into desperation mode at that point.

SMERCONISH: Roger, let me show you a "USA Today" survey, Suffolk University survey that shows how the Republican field, initially I'll show you how they run against Hillary Clinton. By the way, notice John Kasich at the top of the heap presumably because of his appeal to independents, 49-38, but they're all beating her by differing margins. Kasich, Rubio, Trump, Cruz all beating Hillary Clinton if I switch slides and show you Bernie Sanders, the Republican field against Sanders, you'll see similar strength except with regard to Ted Cruz against - Bernie Sanders.

So thus far, a lot of criticism of the GOP brand being harmed by your former employer, Trump and yet the Republican field looks strong.

ROGER STONE, FORMER POLITICAL ADVISER TO DONALD TRUMP: Well, Hillary Clinton has got to have a certain sense of deja vu. She's losing to a 70-year-old socialist. She was the odds on favorite when she began this race, just as she was the odds on favour against Barack Obama eight years ago. She's clearly in deep trouble here and the Republicans, all of them, have an excellent chance despite the fact that some of them are more polarizing than others.

SMERCONISH: Everybody is voting as we speak in South Carolina. We want them to go exercise the franchise. Let me word it this way, Ellis. How strong a showing does Jeb Bush need to continue on?

HENICAN: A whole lot better than he's showing up in the polls. I got to tell you of all of them, he's the one on life support. If he doesn't do better than all three of us expect, he's going to be out of this race very quickly.

SMERCONISH: You know, Roger, the Bush effect in this race, I don't think has much to do about Jeb. You might disagree with me. It has to do potentially with fatigue about the whole franchise because he's done nothing to warrant the poor showing that comes up until this moment.

STONE: Look, Donald Trump's entire campaign is a repudiation of Bush Republicanisn -



STONE: Because their financial policies have destroyed our economy, because their immigration policies have made our country unsafe and because their foreign policies have cost us millions in treasure and lives with very little to show for it. Excellent piece by Pat Buchanan at Brightbart (ph) on this yesterday. So I think that Jeb Bush is toast.

SMERCONISH: The worst thing that could happen to Donald Trump, I would argue is that the Republican field begin to narrow because, you know, he holds and I'm not taking anything away from him or maybe I am. He's somewhere in the 30 to 35 percent range but I think he has a ceiling and the more that that field thins, the larger will become an opponent who gets him in the ring alone.

STONE: I think that's true, however, there is no indication that John Kasich or Ted Cruz or Marco Rubio who I believe will outpace Cruz in South Carolina by coming in second is going anywhere. So Trump will continue to benefit from split opposition as he has thus far.

SMERCONISH: Ellis, smart or foolish politics for the Donald to now be taking on Apple?

HENICAN: I think he's probably on the political side of that. I mean, most Americans I think sympathize with that view and think Apple ought to help the investigators.

SMERCONISH: I don't know. I had a poll on my website, it was unscientific but nearly 1700 people cast ballots. It was a 53-47 divide as to whether this should be determined by privacy interests or national security. I think Trump takes on a risk in this regard. Again though he's really only going after a small percentage of the vote.

STONE: Right - I'm sorry -

HENICAN: Michael, your readers and listeners are a whole lot smarter than the average Republican primary voter. Don't forget that.

SMERCONISH: Roger, you want to respond?

STONE: Look, Trump is standing up for national security and he's running in a Republican primary. He is politically on the right side of this and I would be perfectly comfortable of him taking that position to a general election.

SMERCONISH: Roger, I don't want my viewers to be fooled by your sartorial splendour with that yellow vest, you are known as a practitioner of dirty tricks. I want to show you one. This is an image, a photoshopped image that seemingly shows a smiling Barack Obama greeting a smiling Marco Rubio. We know that's fictitious. A good dirty trick or bad dirty trick.

STONE: Well, this looks like the handy work of tricky Ted to me. But look, cropped photographs are a staple in American politics since Abraham Lincoln. All of the (INAUDIBLE) of Marco Rubio, the millions of dollars spent by Jeb Bush for whatever reason attacking Rubio appear to have had no effect at all. In fact, he seems to have rebounded from his poor debate performance. He's about to drub Jeb Bush in South Carolina.

SMERCONISH: But Ellis, does this begin to catch up with Ted Cruz, this meaning what took place relative to people being told "hey, Ben Carson is going to get out of the race when that wasn't the situation, now this photoshopped photograph, do voters begin to hold the Cruz campaign, Ted Cruz in particular accountable for this sort of thing"?

HENICAN: No, there is a little bit stinker on him. By the way, I would point out that cropped photos, that is nothing by the standards of Roger Stone tricks over the years.

SMERCONISH: He wears that on his sleeve -

STONE: I have no idea what you're talking about.

SMERCONISH: Roger, did the Republicans over play their hand, those who said Barack Obama should appoint no one before he leaves office to the Supreme Court of the United States.

STONE: Not while there is a primary going on. Look, this is about control of the judiciary and about major hot button issues in the Republican primary such as guns and so on. So politically, that is the only position to have. I think it is perfectly safe, and the key thing, of course, is for each of these candidates to keep repeating they would put a constitutionalist, a real conservative on the court as Donald Trump would.

SMERCONISH: But there is the irony or maybe even the fraud. How can you thump your chest and refer to yourself as a constitutionalist while disregarding the president's constitutional authority and obligation to name a successor to Justice Scalia?

STONE: He's entitled to name a successor but the U.S. Senate has an constitutional obligation to refuse to act on that if they wish. We do have a balance of power.

SMERCONISH: Ellis, Ellis, let me hit you with something quickly. Ellis, ready? Justice Biden, does that roll off the tongue?

HENICAN: You know what, I'd love anyone in tat seat. I haven't heard a name that I'd object to. He'd be just as good as any of the others. He is a little old. I'd rather have a 29-year-old if we could work that out.

SMERCONISH: Truth is stranger than fiction. Thank you.

Roger, you referenced Pat Buchanan. He's upcoming. Ellis Henican, thank you. Roger Stone, appreciate both you guys being here.

Yes, (INAUDIBLE) is on the deck circles. We'll get to that. Next and remember, what do you think? Keep tweeting me @smerconish and I'll get to the best later in the program.

Up next, today's all important face-off for the remaining half dozen GOP contenders in South Carolina. We're going to go live to the polls and Donald Trump keeps attacking bigger and bigger targets, including his holiness, Pope Francis and yet it never seems to hurt his campaign. How come?



DONALD TRUMP, PRESIDENTIAL CANDIDATE: For a religious leader to question a person's faith is disgraceful. No leader - especially a religious leader should have the right to question another man's religion or faith.



SMERCONISH: Voting is underway in the important GOP voting in South Carolina. Brian Todd is live from a polling station in Mt. Pleasant, South Carolina.

Brian, I hear there are a lot of last-minute decisions that are being made by voters in the Palmetto state.

[09:30:04] BRIAN TODD, CNN CORRESPONDENT: Michael, that is really the story this morning. Last-minute decisions.

We talked to a lot of voters as they leave the polls. When did you make up your mind? Was it weeks ago? Months ago?

A lot of them have told us, they made up their mind either last night or when they came in here this morning. Incredibly, one woman told us it came down to two people for her and what she wanted to do, she did this purposefully, she went into a digital stand, purposely pressed the Kasich and Rubio buttons simultaneously to see which one would pop up. The Kasich vote popped up, and that was her decision. And that's obviously unusual.

But it does give you a sense of the energy here and last-minute decisions how people are torn between candidates and making up their mind at the last minute.

Here at the Mount Pleasant National Guard Armory, people come and check in and go to digital polling stations and an energetic morning and lines were out the door when it opened two and a half hours ago. We'll take you out the door here as we talk about kind of the process here.

You know, you -- in South Carolina, what is interesting is you don't register by party. You come in here and they will ask you the poll managers are trained to ask you, this is the Republican primary, is this the primary you want to vote in? Because it is a little confusing for some people. The Republicans are this week, the Democrats are next Saturday.

And then when you state you do want to Republican, you present a photo ID and you're off to the races as far as just voting here. Doesn't take people more than about 25, 30 seconds to vote.

And what's interesting, also, is they keep a tally and they keep you in the records. You cannot vote in both primaries. If you vote here today in the Republican primary, you cannot vote in the Democratic primary.

Here is the armory. You know, we had a line out the door this morning. There may be lines of cars, steady streams coming in from the road here. What we're told is, that if there is a line out the door when polls close at 7:00 p.m., everyone still gets to vote even if the polls are closing.

If you're in line, you get to vote and so, we're going to see if that generates into a lot of energy at the polls. So far we had it, Michael, but it's a long day ahead.

SMERCONISH: Hey, Brian, let me just point out that with regard to the history in South Carolina, they got a pretty good track record of picking who the Republican nominee will be.

TODD: Yes, they do. Once another very interesting point about the dynamics and the demographics here in South Carolina, heavy evangelical vote. Trump and Cruz have been battling it for the vote with personal attacks on one another but that is telling, too. We talked to a lot of evangelical voters that come in here today how they felt about a lot of this stuff.

So, very interesting to see about the evangelical turnout and pride themselves on picking a winner. Are they going to do it today? Maybe they're under a little bit of pressure after Iowa and New Hampshire. We're going to see how it turns out.

SMERCONISH: Thank you, Brian, appreciate your report. I think it was Newt Gingrich who was the only one recently to win South Carolina and not to carry the state.

Stay tuned to CNN throughout the day for the latest.

I want to return to Donald Trump. Earlier this week, I tweeted this, "In any other year, mocking a POW hero, mimicking a disabled person, implying menstruation, picking on the pope leads to political ruin." That was before the Donald picked the fight with one of the most unassailable icons in America, Apple.

Nothing seems to slow him down. And here to explain that to us is veteran observer, who recently declared Donald Trump's rise as "a rejection of a quarter century of Bush Republicanism." Former presidential adviser and GOP presidential candidate himself, Patrick Buchanan.

Patrick, is there nothing he say or do that will slow down his stride?

PAT BUCHANAN, FORMER GOP PRESIDENTIAL ADVISER AND CANDIDATE: I don't think the Apple dispute is really a problem for him. Frankly, most folks are on the security side of that.

But let me speak as something of an expert on this, Michael. I've lost the South Carolina primary twice. But I think South Carolina, what is going on here is a tremendous rebellion inside the pre- revolutionary situation, inside the Republican Party, which as I wrote this week, I think it's a repudiation not only of the Bush dynasty, but if you will, of Bush Republicanism on foreign policy intervention.

All these wars, democracy crusades, amnesty for illegal aliens. You know, free trade, uber alles, if you will, which have led to extraordinary trade deficits. And there's a real rejection of this in both parties.

SMERCONISH: Patrick, the reaction initially from the chattering class was, how could Donald Trump take on Pope Francis. On reflection, I'm wondering, could that actually help him among evangelical voters in South Carolina?

BUCHANAN: Well, let me speak as a devout Roman Catholic. The pope is the spiritual and moral leader of my church. But I don't believe -- when I heard that I said, why is the Holy Father saying that it's unchristian to build a security fence or security wall to protect your country from a certain mass invasion from across the border and from the third world?

[09:35:02] Why is he interfering in the politics of my country?

And so, I think there is a natural tendency to say, look, we decide these things, and we don't believe we're immoral in trying to secure our border.

So, in that sense, I agree with Donald Trump. I didn't agree necessarily with the word he used, "disgraceful." I think he should have been more respectful when he did it, but fundamentally, he has a right to defend his position, and I don't believe it's immoral at all.

And I think the pope is badly advised and badly informed.

SMERCONISH: But what I'm wondering is that evangelical Christians in South Carolina won't feel a particular allegiance - maybe an affinity but not an allegiance to Pope Francis. But what about down the road with a constituency that you know well, those lunch-pail Reagan Democrats? Those lunch-pail types that Trump has appeal with, many of whom are Catholic?

BUCHANAN: Well, I think you saw today or yesterday, Donald Trump basically indicating his respect for the pope and his regard for him. In effect, walking back the verbiage he had used but keeping his stand on the border position.

And I think that's the proper position to be in. As I said, I would have disagreed strongly with the use of the word "disgraceful" when you're talking about the Holy Father. But I do think Donald Trump recognized that and moved on that. And he's done this on a number of cases.

You know, Michael, what he does well, he takes these positions -- no Muslims are going to come into the United States. And then the next day and the day after, he refines it, but he's got his headline. He's spoken basically to the reflexive reaction of a lot of Americans who say look, if we can't vet somebody coming in here who's killing us, then we've got to stop and check it out until we can vet them.

And so, I think he's - I mean, you can't fault the results.

SMERCONISH: I know you're a "Rolling Stones" subscriber, I don't know if you read --


SMERCONISH: Why are you laughing?

BUCHANAN: I wrote something for them once.


SMERCONISH: I'd love to read it.

Let me show you what Jesse Berney wrote in "Rolling Stone" relative to faith and Trump. He quoted some Scripture and then made observations. "Blessed are those who are persecuted, said Jesus." And then he notes that Donald Trump wants to deport 11 million immigrants, gleefully breaking up families.

Or there was this: "Blessed are the peacemakers; Trump of course wants to ban all Muslims from entering the United States."

And finally, "Blessed are the meek, for they will inherit the earth." He notes that "Trump bullies Jeb Bush into submission, calling him weak and constantly interrupting him like the world's most obnoxious big brother."

Does the writer at "Rolling Stone" not have a point?

BUCHANAN: Well, let's take the -- of course, I would not compare Donald Trump to Jesus, but I will note that Jesus used a whip to drive the Pharisees out of the temple when they were engaged in money changing in the temple. So, he was strong and he got angry at times.

But I'm not -- wouldn't remotely compare Donald Trump with Jesus.

But I will say, look, the Bush people play hardball. They are very tough. And there is a lot of attack ads, Trump says $20 million dumped on him. I can understand his anger.

But the key thing we're seeing here, I think, in South Carolina, Michael is we are maybe seeing the end of the Bush dynasty and the end of Bush Republicanism. Because if you add a part of the Cruz vote to the Trump vote, this is a repudiation of everything the Beltway Republican Party has stood for. You see panic at "National Review." Panic among the neoconservatives.

Panic at "The Weekly Standard" all these publications. It's because there is a pre-revolutionary situation in this party.

It's not as far advanced quite in the Democratic Party, but when you got a 74-year-old socialist that's running dead even with Hillary Clinton, something is going on in the country.

SMERCONISH: Patrick, final comment. You were there when Ronald Reagan picked Antonin Scalia. Quickly tell that story.

BUCHANAN: Well, I was -- there was a battle between Bork, whether it was Bork or Scalia, and I was on the Scalia side. I was called into the chief of staff's office, and I sat around the table with the rest of the White House senior staff. And Reagan said, we're going to -- the president's decided on which, who he's going to appoint to the Supreme Court. It is Judge Antonin Scalia. And I went yes!


SMERCONISH: Patrick, thank you --

BUCHANAN: But he was a wonderful choice. Good man, great justice.

SMERCONISH: Appreciate your being here.

Your turn, as always. Tweet me @Smerconish. I'll get to some of the best later in the program.

Still to come, the funeral of Supreme Court Justice Antonin Scalia is later this morning. CNN will cover the event live starting at 10:00 a.m. Eastern. But before that, we'll go to the basilica and talk to Paul Clement who clerked for Justice Scalia and then argued more cases than any lawyer since 2000. We'll discuss Justice Scalia's legacy.


[09:43:53] SMERCONISH: Supreme Court Justice Antonin Scalia is being laid to rest today. Well into last evening, mourners, including President Obama, paid their respects while he laid in repose at the Supreme Court. Matter of fact, when I made my respects last night, the line was still several blocks long.

Paul Clement is a former solicitor general of the United States. He clerked with Justice Scalia and has argued some 80 cases before the Supreme Court. More cases than anybody else since the year 2000.

He argued in front of the court in such monumental matters as gay marriage and Obamacare. And yesterday, he was among the justice's former clerks who stood guard at the court alongside Scalia's casket.

He joins me now from the Basilica of the National Shrine of the Immaculate Conception where the justice's funeral will soon begin.

Mr. Clement, you knew him as a verbalist. In other words, there is a tradition in the law of responding to everything through lengthy memoranda. But he wanted to hear verbally what you had to say when you were a clerk.

PAUL CLEMENT, FORMER U.S. SOLICITOR GENERAL AND CLERK OF ANTONIN SCALIA: That's exactly right. I always think of the Scalia clerkship as being an oral clerkship. Almost all the interaction with the justice was in -- not in writing, but discussions with the justice, mixing it up with the justice, occasionally cutting it up with the justice.

[09:45:08] And I think that's one of the reasons why there was such a strong bond between his law clerks and the justice. And you really saw that yesterday, I think, with all of the law clerks spanning his 30-year career there at the court yesterday. It was very moving to be a part of that.

SMERCONISH: And to that end, you also noted in a piece that you wrote for "The New York Times" that he changed oral argument as it had existed prior with the Supreme Court. How so?

CLEMENT: Oh, he really did. It was a transformative effect. Before he came on the Court, it was not uncommon for a lawyer to stand at the podium in the Supreme Court, and in a 30-minute argument maybe get three or four questions. That changed when Antonin Scalia came to the Court. Literally in his very first argument, he started peppering the lawyers with questions, and he never stopped.

And what he did was contagious. Even justices who had been on the court for many years and hadn't asked that many questions, they were like, "I'm not going to let the new guy ask all the questions." And they got into the act, and oral argument in the Supreme Court has never been the same.

SMERCONISH: He was known as an originalist, a strict interpreter of the Constitution. I think that he has - or had, a rather hardened image with some in the public.

I met him only once. I met him a year ago at a White House Correspondents Dinner. And what I noted is that he had a twinkle in his eye. You wrote about the fact that he had great sense of humor, and that he often used humor in the courtroom. Explain.

CLEMENT: Well, he loved to mix it up with counsel in oral argument, and he thought interpreting the Constitution and interpreting statutes passed by Congress with serious business. But just because it's a serious responsibility doesn't mean you can't have any fun. And so he would use a very colorful hypothetical, he would mix it up with counsel.

In fact, there are some law professors that do an annual survey. They look at every Supreme Court transcript, and they count the number of times that the court reporter noted there was laughter. And year after year, Justice Scalia finished topped of the charts in terms of being the funniest justice on the Supreme Court. And I think that's a side of people - a side of him that people didn't see as much. But I think it's an important side of him.

He thought ideas were important, but he also thought having a smile was important. And you really saw that, not just on the Court but the fact that he had these enduring friendships with Justice Ginsberg and Justice Kagan. Sort of people across the aisle from him in some respects. But he really sort of found a common bond, whether it's through intellectual pursuits or through laughter and the like. And I think that's one of his real legacies.

SMERCONISH: Did he nevertheless deserve any of the blame for the partisan rancor that has surrounded the Court? I reference it because Linda Greenhouse wrote a piece in the Times in which she made that argument.

CLEMENT: I don't think he deserves any of responsibility for that, and I'm not really sure that the partisan rancor -- there may be partisan rancor around nominees or around the process. There isn't partisan rancor within the Court. And this is a building where the nine justices often disagree which each other in very strong terms. But yet, nonetheless, they are able to maintain not just cordial, but warm relationships a among themselves. And I think Justice Antonin Scalia was a big part of that, and he deserves credit for that, not any criticism.

SMERCONISH: Mr. Clement, I have a minute left. I'd love if you would tell my audience the story of the "bad old days."

CLEMENT: I would love to do that. I would love to do that.

A few years back when I was still in the solicitor general's office, I was arguing a case in front of the Supreme Court. And there was an important sort of part of the argument that depended on when a previous decision of the Court was, and whether it was decided in what Justice Scalia had memorably called "the bad old days" when the Court didn't look at the text of statutes, or it was a more recent Supreme Court decision.

And as part of the back and forth, he asked me, "Well, Mr. Clement, when do you think the bad old days ended?" And I was able to give in response one of my favorite answers in all of my arguments, which is to say, "Mr. Justice Scalia, the bad old days ended when you got on the Court."

And it was accurate because he did have a transformative effect on statutory interpretation. But it was a wonderful answer for a former law clerk to be able to give to his former boss. So, I really appreciated that, and I appreciate the opportunity to share that story.

SMERCONISH: It's a great story. We're sorry about the passing of your friend.

CLEMENT: Thank you very much. I appreciate that.

SMERCONISH: That's Paul Clement.

And a reminder, CNN's coverage of Justice Scalia's service begins at the top of the hour. I also want to note here, the passing of another prominent American

icon this week, Harper Lee, the author of "How to Kill a Mockingbird," the 1960 novel about a young girl's experience of racial tensions in a small southern town. It became a hit movie and sold tens of millions of copies around the world.

[09:50:00] And we remember her with this quote from that book.

We'll be right back.


SMERCONISH: Members of the White House correspondents dinner a year ago, what I remember is that others were approaching the justice to talk about heady matters. We were just talking about where you could still go and smoke a good cigar. There was a twinkle in his eye.

I like to say you can follow me on Twitter if you can spell Smerconish. Here's some of what came in this hour. I love this. Richard says, "Smerconish, Trump tweeting boycott Apple on his iPhone? What's next, hitting the pope with his bible?"

Hey, Richard, only if it's open to "Two Corinthians."

And this came in from Art Vandelay who says, "Smerconish, if my 4- year-old tries to unlock my iPhone it could be toast after ten attempts?"

Yes, Art, I had no idea that after ten attempts to crack into the phone you lose all your data.

[09:55:02] That's one of the lessons of this. By the way, you'd make a great latex salesman.

And, finally, Mike Reid says, "Smerconish, great panel discussion among Rogers, Dershowitz and Toobin, no yelling or overtalking each other, very reasoned and respectful." You're making me nervous now that the segment won't rate given the appetite that some have for how they like to get their cable news, and I'm not talking about CNN.

Thank you so much. Tweet me @Smerconish. Make sure you pay attention for coverage of the service that's to come and then tons of CNN coverage about both Nevada and South Carolina, all day long and I'll be a part of it. See you next week.