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State Governors Take Differing Stances On Coronavirus Lockdowns; Senator Klobuchar On Her Husband's Case Of Coronavirus, On Need For Voting By Mail And The Politics Of The Lockdown; Will Pandemic Response Affect Michigan Governor's VP Chances?; Donald Trump, White House Talk Radio Host?; How Will Pandemic Affect Supreme Court Cases? Aired 9-10a ET

Aired April 18, 2020 - 09:00   ET



MICHAEL SMERCONISH, CNN HOST: Can a patchwork work? I'm Michael Smerconish in Philadelphia. Catastrophe has a way of suspending ideological conflict. In the modern era, 9/11 brought us together. In 2008 when the Bush administration needed to bail out the banks, ideology went out the window and recently when coronavirus showed signs of crippling the economy, the Senate mustered a 96 to 0 vote for relief.

Sadly, the ceasefire, the kumbaya never seems to last and so it was this week. As John Harris wrote in "POLITICO Magazine" magazine, "Ideology hasn't been suspended. It has been forcibly suppressed in ways that inevitably will come roaring back, sometimes in highly toxic ways."

Last week, I worried here that wearing masks would become the latest red state/blue state divide. Well, consider that in Michigan protestors gathered in the State Capitol to voice their opposition to stay-at-home orders issued to slow the spread of coronavirus. There were similar protests in Virginia and Kentucky and this image from Ohio of an angry crowd at the window of the Statehouse, it went viral. In Utah, protesters held signs that read, "Resist like it's 1776," and, "America will never be a socialist country."

A "Reopen North Carolina" Facebook page quickly attracted 42,000 members. Even in New York, some residents took to the streets on Thursday, despite the Empire State being the epicenter of the virus. Yesterday in Texas, Governor Greg Abbott encouraged state retailers to begin operating next Friday as retail-to-go. Customers can order items ahead of time and take curbside delivery. On Friday, the president fired off a series of tweets, "Liberate Minnesota," "Liberate Michigan," "Liberate Virginia," among them.

Different states have sliding standards for what businesses and activities are deemed essential and some do seem inconsistent. Ground Zero has been Michigan. Governor Gretchen Whitmer added more restrictions. You can't travel to a second home that you own, you can't take out a boat or a jetski on the water, but kayaks are fine.

She also ordered all large stores to cordon off their garden centers as part of a larger crackdown on activities deemed not necessary to sustain or protect life. Curiously, the state's list of not necessary items doesn't include lottery tickets and liquor or cannabis which stores can continue to sell. Michigan State Republicans are introducing bills to strip some power from the governor, which she says she'll veto.

Likewise in Pennsylvania, the Republican-controlled legislature passed an attempt to overturn restrictions imposed by Democratic Governor Tom Wolf. Here, state-run wine and liquor stores are closed, beer distributors are open. You can't buy a book, but you can buy a gun. Golf is a no-no, but trout season opened early. Real estate agencies are closed even though some people have signed contracts and they can't move in.

In Florida, the WWE World Wrestling Entertainment, which was initially closed, is now deemed essential by the governor as part of a group of sports and entertainment media with a national audience. The events will continue without an in-person audience of course.

In Nevada, Las Vegas mayor Carolyn Goodman pushed back against the state's shutdown saying this.


MAYOR CAROLYN GOODMAN (I), LAS VEGAS: This shutdown has become one of total insanity in my opinion for there is no backup of data as to why we are shut down from the start, no plan in place how to move through the shutdown or how even to come out of it.


SMERCONISH: Friday, when the president was asked about the lockdown protests, he said this.


DONALD TRUMP, PRESIDENT OF THE UNITED STATES: I think elements of what they've done is too much. These are people expressing their views. I see where they are and I see the way they're working. They seem to be very responsible people to me, but it's -- you know, they've been treated a little bit rough.


SMERCONISH: The president had just announced guidelines for the nation's governors regarding the restoration of American society. These guidelines were a reversal from his stance earlier in the week when he declared that the president's power over states' responses to coronavirus is, quote, "absolute." Instead, we saw a tacit acknowledgment that it's the governors who will now be calling the shots in the days, weeks and months ahead.

That's probably the best outcome where government often functions best when it's closest to the people, but this ensures we're about to see a patchwork response to a virus that didn't respect international borders and will likewise transmit between states if everyone doesn't act responsibly. It remains to be seen whether the governors are going to demand the same degree of rigor from their medical advisers in justifying continued restrictions on personal liberty and economic well-being as they demand from their citizens in complying with these restrictions.


Are governors going to diligently examine each restriction to determine if it's still justified and only maintain those restrictions that are clearly necessary? Perhaps a patchwork process is akin to what Winston Churchill once said about democracy, it's the worst approach except for all the others.

I want to know what you think. Go to my website at this hour. Answer this week's survey question. Restoration of American society should take place -- state by state, regionally or nationally?

Joining me now, the senator from the great state of Minnesota, recent presidential candidate Amy Klobuchar. Senator, thanks so much for being here. First thing's first --

SEN. AMY KLOBUCHAR (D-MN): Thank you, Michael.

SMERCONISH: -- how's your husband? Thank you. He's been fighting COVID-19.

KLOBUCHAR: Well, he's doing so much better. He was out of the hospital a few weeks ago after coughing up blood and having a really bad case of pneumonia, low oxygen and one day after about four or five days, he just -- it turned to the better and I learned from that, Michael, one, to follow the rules. He didn't go to things even when he felt a little sick and he actually would have exposed people at his work and other places and he didn't.

And then secondly, you know, you can't be there, you can't hold their hand, you can't hug the healthcare workers that are taking care of them and we all know for some of the worst cases, it's those healthcare workers that are holding up the phone when the family tries to say the last words to their loved one. It is a very horrific disease.

SMERCONISH: So Godspeed to John Bessler and thanks for the update. Your governor just announced that he was reopening golf courses and bait shops, outdoor shooting ranges, marina services where people are supposed to adhere to proper distancing and other measures meant to stop community spread, but like other states, Minnesota doesn't have enough testing, the tracking capacity yet to figure out where things stand. What reservations, if any, do you have about that move?

KLOBUCHAR: Well, I trust what our governor is doing here. He cares so much about the people of Minnesota. Name's Tim Walz. He was in Congress, a veteran and there's a lot of faith in what he's doing. Everyone is not going to be happy with everything these governors do. I think it was Andrew Cuomo who said sure, I know I'm not making you happy. If you're mad, call me. You know what? Does the President of the United States say that? No. He starts out his political career at the Republican convention by saying I alone know how to fix this. Then the next thing you know when we have a crisis, he says he's back up to the governors. Then he flips the other way and says he's in charge and now he says, which is correct under the Constitution, that it's up to the governors.

I think it's OK that we have different governors making different decisions in different states, but let me tell you what isn't OK and that is that there was never a national strategy for testing and there was never a national strategy to prepare our country. This is a global pandemic and national pandemic and if we had not lost those precious months when Donald Trump was worrying about his rallies and other things, we could have been in a better, better shape right now for the testing.

And then that would have helped governors, it would have helped businesses, everyone to gradually reopen because if you have the testing, as we've seen around the world, you're in a much better place to control those hotspots and especially when we start seeing drugs and other things and promising therapies, you want to be able to know where the hot spots are and immediately attack them.

SMERCONISH: I'm worried about our election. What went on in Wisconsin a week ago was a bit of a cluster. How do we ensure that doesn't happen nationally in November?

KLOBUCHAR: That answer is more straightforward, Michael. That answer is about making it safe for people to vote so they don't have to choose between their health and voting. I will never forget that image, and I don't think any American will, of those people in Wisconsin bravely asserting their right to vote in garbage bags and masks when it didn't have to happen and one of the most interesting things in that case was the voters voted, a lot voted by mail and that is your answer.

Make it easier for people to vote by mail and that's the bill I lead with Ron Wyden. We got $400 million. We need much more to make this big scale for the country and you see Republican governors, Republican secretaries of state rolling this out all over the country. They need the funding because you're going to have postage, envelopes, new workers and at the same time, making sure our polls can be open 20 days in advance across the country, making the training of new poll workers a priority.

All of this can happen. They just had a successful election in South Korea despite having the pandemic there. You can do this, but you have to have a will and I'm just excited that there's growing support across the country for this and Wisconsin is the symbol this should never happen again.


By the way, you know who voted by mail? Donald Trump. He requested --

SMERCONISH: Is there not -- KLOBUCHAR: -- a mail-in ballot at 1600 Pennsylvania Avenue. So why couldn't those people --

SMERCONISH: To vote in Florida.

KLOBUCHAR: -- in Wisconsin have the same right. Mm-hmm.

SMERCONISH: Understood. Is there not a Tenth Amendment issue here? Isn't it -- isn't it the business of the states to determine and set their elections? Wherein lies the authority to do what you'd like to do?

KLOBUCHAR: Sure it's the business of the states to have elections. That's why they have their own ballots, that's why they have their own voting equipment. There's all kinds of things, but this is a national election in the middle of a pandemic.

So number one, getting the money, no one has raised issues about that. Almost every secretary of state wants this funding for early voting, for mail-in voting. Two, all we're doing is setting standards nationally and think about it, 20 days early for polling locations. A lot of Republican governors are ready starting to waive requirements and do that anyway.

Number three, making sure that we break down some of these barriers. In six states, you have to get a notary or two witnesses in order to get a mail-in ballot. Sixteen states, you have to have an excuse to get a mail-in ballot, but four states, including two Republican governors, have already waived those requirements. So you're starting to see action across the country, but I think it is much easier if we at least have some minimal standards for the entire country and that's what the bill --

SMERCONISH: Senator --

KLOBUCHAR: -- that Senator Wyden and I have does.

SMERCONISH: There's a word that the Trump/Pence campaign is now using to describe that which you'd like to see come to fruition, harvesting. In fact, put on the screen a fundraising pitch that I've just seen where they're encouraging folks to pony up money so as to stop what Senator Klobuchar and others, we must get rid of ballot harvesting. Will you respond to the criticism that mail-in voting is at a heightened subjectivity to fraud?

KLOBUCHAR: You know what? Maybe President Trump should ask some of his own Republican officials, such as the Republican secretary of state in Washington State who has made it very clear that this is a safe way to vote and in fact, you have paper ballots when you vote by mail, something we don't have in a few of our states right now. Ask the governors, Republican governors in Maryland and in New Hampshire and in Ohio that want to transform their elections into mail-in ballots.

I don't think he's attuned. I think he's using it to raise money from his base, but when he does that, he's messing with people's health and I think the best answer is how those people in Wisconsin voted in that judge's race. They were mad. They saw through it. They saw that the Republican legislature was not just messing around politically with their right to vote, they were literally putting their lives at risk --


KLOBUCHAR: -- and look what happened.


KLOBUCHAR: So I think there's going to be a huge backlash if they don't help us with the funding for this.

SMERCONISH: I think that there's a perception on the Republican side of the aisle that this benefits Democratic candidates, but the data, when you delve into it --


SMERCONISH: -- is much more complicated than that and it's not a clear answer.

KLOBUCHAR: You know what the mail ballot states are that have like over 90 percent, over 85 percent? States like Utah. That is not exactly a blue state, although we're doing better and better there. States like Arizona has actually a high rate, not the highest, but a very high rate of people voting by mail. Colorado, which is a purple state, they have nearly all voting by mail.

Now, let me make clear, you still want to have polls open for people with disabilities, for people that maybe forget to get their ballot and there's all kinds of things, but the less people you have congregating at the polls, the better off we all are.

SMERCONISH: Senator Klobuchar, Senator Warren was asked a direct question this week and she gave a very direct answer, which is if asked, would you accept a position on Vice President Biden's ticket. What's your answer to that same question?

KLOBUCHAR: My answer has been the same from the very beginning, which is right now I am focused on my state, I am focused on our country, leading the effort so that we can vote in November and I'm just not going to engage in hypotheticals and I know one thing for sure -- Joe Biden was a great vice president. He knows what it takes to be a good vice president. He's going to make that decision.

SMERCONISH: I'll put that down as a maybe. Thank you for being here.

KLOBUCHAR: Thank you. It was great to be on, Michael.

SMERCONISH: What are your thoughts? Tweet me @Smerconish or go to my Facebook page. I'll read some throughout the course of the program. What do we have? From Twitter I think, "As for the protesters who are saying, 'We will never be a socialist country,' I would like to ask them if they will be returning their stimulus checks soon?" Look, folks are pent up. I've got cabin fever myself. I don't want to paint with a broad brush. You can always find one sign that's objectionable in that crowd and then try and characterize the group. I get it. My commentary at the outset was simply designed to illustrate what I fear is coming, which is a patchwork approach that the virus is not going to respect, but I don't have a better solution.


I think it's probably the best that we can do and, you know, hope that it works.

I want to know what you think this hour. Make sure you're going to and answering the survey question. Restoration of American society should take place -- state by state, regionally or nationally?

Up ahead, whose name will be at the top of the Democratic presidential ticket with Joe Biden? I was just asking that subject of Senator Klobuchar. Well, Michigan Governor Gretchen Whitmer has been a contender, but could fallout in her state this week make the Biden team think twice?


UNIDENTIFIED FEMALE: It's time for our state to be opened up. We're tired of not being able to buy the things that we need, go to the hairdresser's, get our hair done. It's time to open up.





SMERCONISH: Michigan Governor Gretchen Whitmer has been having quite a moment in the spotlight. Her name has been floated as possible VP pick for presumptive Democratic presidential nominee Joe Biden.

Michigan of course one three midwest battleground states that Trump carried in 2016, but as of late, her strict response to coronavirus has caused backlash. Thousands of cars descended on Michigan's state capitol building this week in a protest against her expanded stay-at- home orders as four county sheriffs informed residents they would not be, quote, "Strictly enforcing Whitmer's new order.

They said, quote, "While we understand her desire to protect the public, we question some restrictions that she has imposed as overstepping her executive authority." Whitmer defended the move, pointing out that Michigan has the fourth highest number of coronavirus cases in the country, but the vast majority of those cases are in the Detroit area. Some state residents think the strict policies are too broad and an overreach. So did she take it too far? This "Washington Post" column headline is suggesting that, "Gretchen Whitmer may have just taken herself out of the Veepstakes." Joining me now to discuss is the perfect guest who knows the state very well, former Michigan governor Jennifer Granholm. Governor, did she extend herself too far in this regard?

JENNIFER GRANHOLM, (D) FORMER MICHIGAN GOVERNOR: No. I mean, she's been obviously consulting with health care experts and she's not going to do things that are just, you know, restrictive just to do them.

She doesn't want to do them, but she wants to protect the people of the state, all of the regions of the state, Democrats and Republicans. So as she has said, this has an end date to it. They will phase in opening it up, but she's not going to do it when people's lives are still at risk.

That protest, Michael, I mean, the fact that people who came to that protest blocked ambulances to the hospital in their effort, that they were handing out, barehanded to children, candy, barehanded to barehanded. They were putting people at risk. That selfishness must stop. They can say they want their freedom all they want and they have freedom, but other people have freedom to live or should and they shouldn't be inflicting or putting others at risk.

SMERCONISH: The restrictions make for great soundbite to talk about, say, kayaking versus jet skiing. When you actually scrutinize each one of them, can they be defended? For example, I know that if I kayak, I'm alone and I don't need fuel. I'm not going to go out and gas up. If I jetski, sooner or later I'm going to need fuel. Have you thought them through on a granular basis?

GRANHOLM: Well, I think that's why -- that's why you have that kind of distinction. I mean, her point -- she's been saying your germs last on a gas pump, the virus lasts, for 72 hours. All those people who came to protest, if they filled up, who are they putting at risk? Completely unsuspecting folks in their community, including the people who may work at the gas station who may be lower wage people. I just -- they're not thinking.

So she has a very granular list and I think it's very well thought through and she's going to stand by it because the activities that she has at least circumscribed in this are not activities that are necessary to living. They may be recreational, they may be fun, you may not be able to get your yard landscaped or your hair done, but are those necessities? I don't think so.

SMERCONISH: Governor, I love Mackinac Island. I also know that to get to Mackinac Island is a struggle and a hell of a long drive before you get the ferry, say, if you fly into Detroit. This geography argument is one that I want to hear you respond to. Let me put on the screen what was written by Henry Olsen in "The Washington Post."

He said, "Whitmer's decision was particularly tone-deaf because it covered the entire state even though most of it remains largely unaffected by the COVID-19 outbreak. More than 80 percent of the state's deaths and confirmed cases were in the Detroit metropolitan area as of Thursday morning.

That share is higher when counties close to Detroit are added to the count, yet the order applies to the entire state even though residents in most regions face little risk from the disease. No wonder people drove from all over Michigan to tie up Lansing's traffic on Wednesday." Doesn't he have a point?

GRANHOLM: The point is that there have been 3,222 people who have died, probably more as we have been talking and they come from all -- they do come from all over the state and believe me, when you have people from rural areas coming to Lansing to protests wearing no protection at all and handing out candy with your bare hands, they have just brought that potential back to their regions all across the state.


I mean, people -- I understand it's frustrating to stay at home. I'm at home. We're all at home. I mean, the point is it's about saving lives and Michigan is on a climb like this and every person who is infected infects potentially 40 other people who then turn to infect thousands more. So if there's a county in Michigan that hasn't had a COVID death, thank God and let's keep it that way and the point is this is a temporary solution.

SMERCONISH: Quick final answer, if you don't mind. If you are Joe Biden and you are quarantined in Wilmington paying attention to Gretchen Whitmer in Michigan, you are thinking what?

GRANHOLM: I'm thinking she's got -- she's got cojones. I'm thinking she's strong and she's clear about saving lives and that's what's most important.

SMERCONISH: Stay safe. Thank you so much for being here.

GRANHOLM: You bet.

SMERCONISH: What do we got? Catherine, from Facebook I think. More social media roaring in. "None of us elected dictators. Mayors and governors shouldn't have the authority to shut everything down. We will never know if the shutdown ever really happened." Hold on, Tony. Wait a minute. Whoa. Mayors and governors shouldn't have the authority? So no one would have the authority, so then we're going to, in the midst of a pandemic, just leave it up to individuals?

Then how do we protect -- I hate to say this, but everybody's using the analogy of peeing in the pool. There. I said it. You know, once somebody does it, you can't stay in the -- in the deep end and avoid it. So, you know, by your logic, we're going to trust that nobody pees in the pool. Can't have that. Doesn't work. Jeopardizes all of us.

I want to know what you think. Go to my website at and answer the survey question this week. Restoration of American society should take place -- state by state, regionally or nationally?

Up ahead, Donald Trump thought about hosting a talk radio program from the White House including taking calls. Rush Limbaugh says he'd be great at the job. To me, this could bring everything full circle. I'll talk to Brian Rosenwald who Rush says wrote the best book about the subject.



SMERCONISH: Donald Trump, talk radio host? News broke this week that the president himself recently pitched the idea of broadcasting a daily two-hour talk radio program from the White House to address America about the virus allowing callers to dial in. Then he apparently decided against it.

How come? According to "The New York Times," mainly because he didn't want to step on the toes of longtime supporter Rush Limbaugh. You'll remember, of course, that the president thinks so highly of Rush that at his February State of the Union address he awarded him with the Medal of Freedom.

Rush returned the compliment by endorsing the idea on his program saying. "Trump is one of the few who could fill my shoes with proper training and proper instruction, I can see that. I think there'd be nobody better to fill my shoes than Donald Trump. I find it once again very pleasantly satisfying that a man who owns television wants to be on radio."

Joining me now is Brian Rosenwald. He literally earned a PhD studying talk radio. He wrote the definitive book on the subject. It's called "Talk Radio's America How an Industry Took Over a Political Party That Took Over the United States." I should also add that when Rush heard me interview Brian previously, well, he said this about the premise of Brian's book.


RUSH LIMBAUGH, RADIO TALK SHOW HOST: All of the books about talk radio, how many of them totally miss either the history of the modern era and then what has happened since then, but this guy kind of gets it. His name is Brian Rosenwald. He was on CNN Saturday. So nobody saw this.


SMERCONISH: Brian, I have to laugh at the last line. I mean, people lose sight of the fact he's got a sense of humor. That's part of the way in which he has succeeded as an entertainer. Even if he's taking a shot at me.

BRIAN ROSENWALD, AUTHOR, "TALK RADIO'S AMERICA": That's right. And, Michael, he is always joking around. I mean, I was looking yesterday, he's got Joe Biden's plugs in Rush speak, because presumably talking about his hairline. And Deborah Birx is the scarf queen. So he's always joking around, having a good time, trying to put on a good show. SMERCONISH: So, listen, in earning a PhD, studying talk radio, you had to listen to a lot of bloviators like me. Does Donald Trump have the chops to succeed as a talk radio host?

ROSENWALD: Absolutely. We see it every night, Michael. He does these press conferences and, granted, they leave a lot of us angry, they sound all over the map and things. But here's the thing, you never know what you're going to get. And every night there is some sort of something that sets social media aflame. And that is a headline for the next day.

He's -- you almost have to tune in. And that's what a good host does. He reaches through the radio. He grabs you and says, stay right there. Sit in your car, don't, you know, get out, because you could miss something.

SMERCONISH: If he were to do this, it would complete the story. It would bring full circle the whole tale of how he was elected. Because as you know, he dipped his toe in the water back in 1988, didn't run in '88, '92, '96, et cetera, et cetera, but the timing was right in 2016 largely because you argue in your book the table had been set by a politicization of the media.


ROSENWALD: That's absolutely right, Michael. If you don't get Rush Limbaugh, if you don't get talk radio, I don't think you get Donald Trump. Because the political norms in 1988 were such that you couldn't have Donald Trump, you know, all of the comments where he gets himself in trouble every single day.

The liberate tweets yesterday. Things like that, that was no-go in 1988. Now, it fits the style of talk radio, of cable news, of being entertaining, and being incendiary, of voicing the sentiments that his base feels but don't feel like they can say. That's what Donald Trump does so well and that's what talk radio does so well.

SMERCONISH: And, look, so that people are clear, your book is really an analysis of the growth of this industry and the influence that it had. It's not a hit job on Rush. You speak glowingly of his entertainment chops but you do acknowledge and argue that it's had a destructive influence on America's dialogue.

ROSENWALD: I think it has. And, yes, folks on the left who hate Rush Limbaugh, who see him as, you know, just a toxic force in our politics need to understand that he's a lot like Jon Stewart, where people on the right felt the same way about Jon Stewart. But he entertains millions -- you know, he entertained millions on the left and center and some on the right.

But we do need to understand that, you know, part of what's gone on with Rush Limbaugh, with talk radio is, first of all, the running down of the mainstream media, and the running down of experts. And moment when maybe more than any other in my life we need people to trust the Dr. Birxes and the Dr. Faucis, and we need them to trust the experts, and stay home. There is a doubt -- people doubt them and they doubt the mainstream media. And they're worried that people are just out to destroy Donald Trump.

So that's toxic. And it also convinced us that we are farther apart than we actually are. That we don't have shared American values that it's just a bunch of liberal elites in mainstream media, on cable -- in mainstream media, in colleges and universities in the entertainment field that just want to destroy their values.

SMERCONISH: Hey, Brian --

ROSENWALD: And you can see politics versus war. And this is driven by the media.

SMERCONISH: Final thought, there is precedent, I established it, for doing a live talk radio program from the White House, with a president who takes calls.

I interviewed President Obama twice. Once in the Oval Office. Once in the Diplomatic Reception Room. Thirty minutes, the phones were open, and he had no idea -- there was no -- there was no scripting. There was no screening. Americans were able to call in and ask the president whatever they wanted.

I will tell you, I've extended this same invitation to President Trump who thus far has been unwilling to do it. Anyway, thank you. Your book is terrific.

ROSENWALD: My pleasure, Michael. Always happy to be with you.

SMERCONISH: Let's check in on your tweets and Facebook comments. What do we have? From Facebook, I think.

Talk show, talk show as POTUS, where would he find the time? Talk show host POTUS, where would he find the time?

Well, you could make the same argument relative to the press briefing. I can tell you, last night we watched -- my God, in my house, probably for 90 minutes. For 90 minutes. So in the same time that he's dedicating to those briefings, he can make the time.

I want to remind you to answer the survey question at this hour. Can't wait to see how this turns out.

Restoration of American society should take place state by state, regionally, or nationally? Go answer.

Still to come, how is the Supreme Court proceeding in the era of social distancing? Which crucial cases are likely to be heard in these unusual circumstances? Jeffrey Rosen is here.



SMERCONISH: Social distancing is affecting every aspect of American life and government all the way up to and including the Supreme Court of the United States. What's the pandemic changing about how the justices deal with cases and which ones are on the docket that are most significant?

Joining now is Jeffrey Rosen, the president and chief executive officer of the National Constitution Center. He's the author most recently of a great book called "Conversations with RBG, Ruth Bader Ginsburg on Life, Love, Liberty, and the Law."

Jeffrey, let's begin with this. What is the usual practice? They hold arguments on Monday, Tuesday, Wednesday, release transcripts -- but you correct me if I'm wrong -- the audio doesn't then come until a couple days later?

JEFFREY ROSEN, DIRECTOR AND CEO, NATIONAL CONSTITUTION CENTER: That's almost always the case. There have been a couple of big cases where they released the audio two hours after the argument. But never before in U.S. history have they done live streaming of the audio, which the court has now said that they will do for 11 cases that will be argued in May. So this is historic. And for the first time ever, citizens will have the opportunity to hear Supreme Court arguments live.

SMERCONISH: So, they are publicity shy is my point. Because by the time the audio comes out on a Friday from a Monday argument, we've all moved on five times over with the news cycle. And although they're going to allow us, we hope, to hear these arguments in real time, as they do them telephonically, they are a step shy of Zoom, which all of our kids are now being educated on.

ROSEN: No question about it. Someone said the justices don't want to have Zoom oral arguments because they don't want to become a "Saturday Night Live" skit.


But the fact that they're going to have live arguments at all is unprecedented. Still, it's not entirely clear how it's going to work. They're all going to be on the telephone.

So how will the lawyers know who is asking them the questions? Whether the chief justice call on the justices in order of seniority, which he doesn't usually do?

The lawyers will be able to consult their notes as cheat sheets which they can't do in regular arguments. And what happens if the audio (INAUDIBLE) U.S. Court of Appeals for the D.C. Circuit? So there could be technical glitches and all sorts of challenges. But it's amazing it's going to happen at all.

SMERCONISH: So, it's funny to me, because at the point where you were explaining there could be technical glitches, you faded out on us.

Let me ask this question, what are among the cases we should be paying very close attention to? I know that I'm interested in the so-called faithless elector cases?

ROSEN: Yes, the faithless elector cases there are two them. They're hugely interesting are the state laws that prohibit members of the Electoral College from voting for someone other than the candidate they're pledged for constitutional. And those cases could fit the originalist instincts of conservative justices who know that the Electoral College was supposed to deliberate independently against other considerations.

There are also two other really interesting sets of cases. There are two cases involving subpoenas to President Trump, efforts to get his financial records by Congress and the Manhattan district attorney. And then there are two really important cases involving religious liberty.

Can teachers in Catholic schools be sued for discrimination under the ministerial exemption? And also can employers refuse to provide contraception coverage because of their moral objections not just their religious exemptions? So really, really interesting cases involving religion, election and subpoenas as well as some other ones.

SMERCONISH: Jeffrey Rosen, head of the National Constitution Center. Thank you so much for being here.

ROSEN: Thank you.

SMERCONISH: Can I just say how disappointed I am that they didn't use this as a means of finally bringing cameras into the courtroom, allowing us virtually to watch what goes on?

My premise is this, if I have a right to walk into a courtroom and take a seat and watch the proceedings, which we do in the Supreme Court of the United States, then they should be televising the same. I can't help but think that the O.J. case sort of ruined it for the rest of us but we should not evaluate whether we want cameras in the courtroom based on Lance Ito alone. That's my view.

Still to come, your best and worst tweets and Facebook comments. And we'll give you the final result. Go vote now at

This is the question, restoration of American society should take place state by state, regionally or nationally?



SMERCONISH: Time to see how you responded to the survey question at this hour.

Restoration of American society should take place state by state, regionally or nationally?

Survey says. What do we got here? Wow, look at that, man. Nearly 18,000 votes cast. State by state, 42 percent. Regionally, 41 percent. If I do a little ciphering here like Jethro Bodine, that gives me 83 percent, versus nationally 17 percent.

Really interesting. Well, that's what we're getting, right? The plurality, state by state and some regionally.

What else do we have, Catherine? What came in social media wise this hour?

Smerconish, with some states being opened what stops a resident who may be asymptomatic or pre-symptomatic from an unopened state to travel to an open state? Isn't there a risk from that traveler?

There absolutely is. That's the point that I was making in the open commentary. How about if you live in a border state where the policies differ and you want to go out to dinner? What's going to stop you from going out to dinner in that neighboring state because you've got cabin fever?

As I said at the outset, I'm not criticizing the decision that was made here, I don't see an alternative. I just think that it's problematic if people don't behave responsibly. The virus didn't respect international boundaries and won't respect state boundaries. But that's not me saying therefore this isn't the way to go because I'm not comfortable seeing a national standard that crushes the economy.

What else?

I'm a Michigander and I am an RN. I support Governor Whitmer but can't help but ask, why can't I paint my house but I can buy lotto tickets, booze and weed? You can't say you're putting health above the economy yet risk lives to provide state revenue.

I went through, Chris, some of these examples with Governor Granholm and trying to say, they make for great sound bites for someone like me who has access to a microphone. If you analyze them in a case by case basis, I think some of them are justified. Like the kayak versus the jet ski, I kind of get it.

Then again, when I hear that the gardening centers were cordoned off, I know I'm planting a victory garden. Wouldn't we like people planting vegetables right now? So some of it I can defend and some of it I can't defend.

One more if we've got time for it.

The pee in the poll/smoke in the airplane analogy applies. You can't have one policy on this side of the county line and a different one on that.


Yes. It's true, Dr. Langer. You can't just -- didn't we all learn as kids, you can't just stay in the deep end if there's something bad going on in the shallow end?

Gang, I'm going to leave the survey question up. Continue to vote at Have a great weekend, stay safe, and we'll see you next week.


[10:00:04] CHRISTI PAUL, CNN ANCHOR: I want to wish you a good morning and thank you so much for sharing your time with us.