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Supreme Court Justice Ruth Bader Ginsburg Dies At The Age Of 87; Mitch McConnell: Trump's Nominee Will Receive A Vote On The Senate Floor; The Political Implications Of The Death Of Ruth Bader Ginsburg; President Donald Trump: Coronavirus Vaccine For Every American Available By April; The Fight Has Already Begun To Replace Justice Ginsburg. Aired 8-9a ET

Aired September 19, 2020 - 08:00   ET




MICHAEL SMERCONISH, CNN HOST: RIP RBG. I'm Michael Smerconish in Philadelphia. Supreme Court Justice Ruth Bader Ginsburg died last night due to complications of metastatic pancreatic cancer. She was 87. She was appointed to nation's highest court by President Bill Clinton in 1993 only the second women to be appointed to the position.

In recent years she served as the most senior member of the court's liberal wing delivering progressive votes on divisive issues. Her death could potentially change the balance of power on the highest court in our country just as the nation prepares for a Presidential Election in less than two months. We'll have more on her remarkable life and the political implications of her death.

First, I want to go straight to the steps of the U.S. Supreme Court where CNN's Ariane de Vogue is standing by. You know, Americans don't get to know the personality of a Supreme Court Justice. But this was different. We all think we knew her, why?

ARIANE DE VOGUE, CNN SUPREME COURT REPORTER: You know what's interesting about it that she was a legend even before she got to the Supreme Court. As a young woman, she went across the country, picking off these laws that treated men differently from women on gender discrimination. That was even before she got on the Supreme Court.

And then, she's nominated, as you said in 1993, and she becomes this solid progressive vote, perhaps her biggest majority opinion is the VMI that was a state school she struck down the all-male admissions policy. I was with her 20 years later, when she went back there. She had a rousing audience.

But on top of it she was really known for her dissents, right? She was in dissent in Bush V. Gore. There was a big pay discrimination case. And when the Supreme Court gutted a key provision of the Voting Rights Act that's when she wrote just a scathing dissent.

And that kind of turned her into an icon, particularly for young people. One person put that dissent to song. Suddenly there was swag everywhere. You see T-shirts that said "You can't get the truth without Ruth." You would see tattoos. So really, she became sort of this unlikely icon and that just never happens at the Supreme Court.

SMERCONISH: So, I know that members of the public began gathering at the Supreme Court last night what are we about to see unfold? What's the protocol?

DE VOGUE: Well, that's a little unclear, and I'll tell you why, and it's because of COVID. Normally, when we've had Justices pass away in the past, there is a big ceremony here, all of the clerks come. They stand guard over it. And last night, I was talking to people who were trying to organize this, clerks from across the country want to come in but they're not quite sure how to deal with this in the age of COVID?

So, that's left to be determined. But one thing that's clear is this court obviously is now going to change, right? Trump has got his third chance here. And what's interesting about it, this time around, he is replacing a liberal a liberal giant with a conservative. That's going to change the court.

It's going to change the court for the short term because now, we have 8 Justices. What happens if there's a split 4-4? What happens next term? We have a big case on Obama Care coming up, so she's going to leave a big hole. It's unclear right now, we're expecting to get more details but we don't know how the ceremonies here are going to play out?

SMERCONISH: I find myself saying yet again in this cycle we're in uncharted waters. Ariane de Vogue, thank you for your report.

DE VOGUE: Thank you.

SMERCONISH: Justice Ginsburg's remarkable career and personality propelled her to the status of feminist cultural icon. One big thing that made her stand apart from the rest of pack is her fiery dissents complete with a matching dissent collar.

The Co-Founder of SCOTUSBlog Amy Howe has written an extraordinarily detailed obituary of the late Justice. Amy Howe joins me now. Amy only in America as she said why, why was it such a unique story?

AMY HOWE CO FOUNDER, SCOTUSBLOG: She was a child - her father came to the United States as a young man. Her mother was the first generation American she grew up in sort of lower middle class, middle class Brooklyn went to public schools.

And I think, particularly for young people but young women in particular, it's hard to sort of remember what life was like for young women. She graduated at the top of her class at Columbia Law School and couldn't get a job at a law firm in New York City because she said I was a woman, I was a mother, and I was a Jewish.

The combination of those of three things and to go from that background to literally the highest court in the land is an extraordinary story. And then once she was on there, she was really the Good Marshall of the women's rights movement.


HOWE: So she had an extraordinary career even before she was on the Supreme Court. And then as Ariane said you know she became this unlikely icon once she was on the Supreme Court with little girls dressing up as Ruth Bader Ginsburg for Halloween is just something we haven't seen before and aren't likely to see again.

SMERCONISH: You know, even someone critical of her opinions, based on ideology or perception of the law, would have to admire, if they're fair, her intellect. And yet, you point out, in this extraordinary obituary, no New York firm would hire her, would hire a woman who goes on to become such a distinguished Supreme Court Justice.

HOWE: That's right. You know, she, instead, after law school, she took a clerkship with a federal judge in New York. Even that job, she only got after one of her law school professors promised the judge that if she didn't work out because she was a woman that he had a male law student waiting in the wings.

She wants to clerk - so many top law students did on the Supreme Court, but that wasn't really an option at all for her, again because she was a woman.

SMERCONISH: She gets to the D.C. Circuit Court, a very prestigious court. You know many would say the minor league for the Supreme Court of the United States. And the unique friendship develops that you detail, with the future Justice Antonin Scalia. Explain.

HOWE: It's an extraordinary friendship. There are some great stories floating around. Including one I think from Judge Jeffrey Sutton who is court on the U.S. a judge on the U.S. Court of appeals on the sixth circuit.

The Scalia and Ginsburg used to spend New Year's Eve every year together. The Scalia and Ginsburg travel together. There's a great picture of Justice Scalia and Justice Ginsburg on an elephant in India.

And the story from Judge Sutton about Justice Scalia showing up at Justice Ginsburg's chambers with two dozen roses for her birthday and it's something that you don't see in Washington then often anymore which is you know people with very different views on the world and the law, but with really incredible friendship.

SMERCONISH: So, Amy, everything now comes full circle. President Clinton nominates her to the Supreme Court of the United States. The confirmation hearing is presided over by the Chair of the Senate Judiciary Committee. Remind everybody, who was that at that time, and how did he handle this nomination?

HOWE: It was Joe Biden. Just it as certainly does come full circle. And one of the things he started off the confirmation hearing by noting that when he was on his work on the Amtrak from Wilmington, as he so often did at the time, the confirmation hearing was on, I think he said, sort of buried somewhere in "The New York Times" on page 7 or page 8 because it was such a nonstory.

Really, she had been regarded as a moderate. The head line in the "Los Angeles Times" when she was nominated called her a moderate judge. And I think in fact concerned among liberal groups which are kind of remarkable considering how things turned out that she was going to be too moderate as a Supreme Court Justice?

SMERCONISH: Well, as you pointed out, when President Clinton puts her name forth, he's proud of the fact that she's, "Centrist" and no one can regard her as a liberal or conservative she then spends 27 years on the Supreme Court the United States and distinguishes herself as one of the more progressive members. As you've also written best known for dissents rather than majority opinions, explain?

HOWE: That's right. So Justice Ginsburg for most of her career - so the way that the Supreme Court works is the Justices after an oral argument get together in a conference, just the 9 of them, and they vote on how they want the case to come out?

And the Senior Justice in the majority gets to assign the opinion. So, for most of her career, Justice Ginsburg was not the Senior Justice in the majority. And she was also on a conservative leaning court.

And so, she for most of her career, she either wasn't in a position to assign a majority opinion. Or frequently, even if she was, you know, often in a closely divided sort of high-profile divisive case, sometimes, if you've got four liberals joined by a more conservative justice, you may want to assign the more conservative Justice to write that opinion in the hope of sort of keeping them on board.

So, she doesn't actually have sort of the way a Sandra Day O'Connor or an Anthony Kennedy does a large body of majority opinions to point to. What we really are remembering her for are her dissents.


HOWE: As Ariane pointed out that she had a dissent. She talked about dissents as trying to serve two different goals. One of them was to speak to other branches of the government in the hope it would spur them to act when the court hadn't.

So there was a case called Lead Better versus Goodyear Tire back in the 2000s so it was actually cases that my law partner at the time argued involving a woman who had been a victim of employment discrimination in the Supreme Court said you brought your case too late, even though you didn't know at the time that you were the victim of employment of gender discrimination at Goodyear Tire.

And so the Supreme Court ruled against her, but Congress, that one of the first bills passed by in the Obama legislation, one of the first laws that President Obama signed once he became President, later on passed a law to address that problem.

The other thing that she talked about with dissents was sort of serving a future wall that the voting rights case that Ariane talked about Shelby County versus - sort of speaking the future generations. SMERCONISH: Amy, it's a wonderful obituary very comprehensive that you wrote. It also ends with a very poignant scene. March the 4th. The last time that we saw her presides. And when the other Justices are leaving the well of the court, one lingers behind to escort her.

People might be surprised to hear that it was Clarence Thomas. Justice Thomas Justice Thomas, in the same way that she had this unique relationship with Scalia he was the one extending that if I can say, chivalry at the end in providing her with some assistance. Thanks for being here. I really appreciate your time.

HOWE: Thanks for having me.

SMERCONISH: Up ahead, with voters heading to the polls in less than 45 days. A source close to President Trump said he's eager to replace Justice Ginsburg. We'll discuss whether he can do it before the election.



SMERCONISH: Justice Ruth Bader Ginsburg has died at the age of 87. The White House last night ordered flags to half-staff in honor of the late Justice. When word of Justice Ginsburg's death initially broke the President was speaking at a campaign rally in Minnesota. He was already on stage apparently unaware of the news and potential massive shift in the campaign.

Let's go now White House Senior Washington Correspondent Joe Johns. So, Joe, how did the president find out and what was his first reaction?

JOE JOHNS CNN SENIOR WASHINGTON CORRESPONDENT: Well, it's pretty clear that the President didn't find out until after he finished that political speech in Minnesota, and he went over and talked with reporters there.

And they essentially told him, the President reacting with a notable amount of decorum in what has certainly been an administration that really did not adhere to a lot of norms. Listen to what the President said when he found out about the death of Ruth Bader Ginsburg.


DONALD TRUMP, PRESIDENT OF THE UNITED STATES: She just died? Wow. I didn't know that. I just - you're telling me that for the first time. She led an amazing life. What else you can say? She was an amazing woman. Whether you agreed or not she was an amazing woman who led an amazing life. I've actually said that and thank you very much.


JOHNS: The President also ignored questions about replacing Justice Ginsburg. The White House later put out a statement again praising the Justice. No mention of something this White House has been preparing for, frankly, a very long time. Within last couple of weeks, the President put out a list of the names of individuals he might nominate should a vacancy on the court end up out there.

And so, we're in a position where the President has been thinking about this, realizing, of course, that if he names someone who is pleasing to, for example, religious conservatives, it might help him in the election. Religious conservatives have been certainly very concerned about overturning Roe verses Wade, the abortion ruling.

And other matters, in fact. So, this White House appears to be rearing to go on this issue. And the question whether the President is going to at least float a name out there. And the President will be visiting North Carolina just today. So, we'll be watching very closely to see if the President has anything to say about the vacancy left by the death of Justice Ruth Bader Ginsburg. Michael.

SMERCONISH: You know, Joe, I wonder if the interests of the President and Mitch McConnell completely align? I have no doubt that they both wish to have a conservative put in that position in the Supreme Court of the United States.

But Mitch McConnell also needs to be mindful of maintaining control of the United States Senate. And he's got a number within this caucus, a number of individuals, who are on the bubble. It will be very interesting to see how this all plays out. A quick final thought from you.

JOHNS: Yes. That's absolutely right. And it's not clear that their interests do converge. You know, during the last time, four years ago, the Senate Majority Leader Mitch McConnell decided not to move on the nomination of Merrick Garland who was President Obama's nominee for the Supreme Court, after the death of Justice Antonin Scalia.

But, now, McConnell says it's a very different situation, because there's a Republican in the White House.


JOHNS: There is that question, of course, of whether President Trump would like to sort of dangle the issue of another conservative nominee to get his voters to the polls. Or if it would be better for him and his party, in the long run, to go ahead, put the name out there, gets the nomination going. As quickly as possible, in order to sort of galvanize that support on the right.

SMERCONSIH: Joe, thank you so much.

JOHNS: You bet. Thank you, Michael.

SMERCONISH: Up ahead, the death of a Supreme Court Justice in an election year, as Joe was just saying has immense political ramifications. One prominent Republican has made past statements on the subject saying we could use his words against him later if necessary. Well, we will see how that comment is holding up.


SMERCONISH: Supreme Court Justice Ruth Bader Ginsburg passed away Friday at the age of 87. Mitch McConnell has already announced that he fully intends to bring President Trump nominee for vacancy to the senate before the election.

This is the high stakes gambit from McConnell who himself is up for reelection but more so for several of his GOP colleagues who are on the bubble. Susan Collins of Maine, Cory Gardner of Colorado and Martha McSally in Arizona they find themselves forced to take a stand about whether the rush to confirm is appropriate?

Also on the ballot this fall, Senate Judiciary Chair Lindsey Graham, who is fighting of a challenge in South Carolina from the Democrat Jamie Harrison? And Graham has previously gone on record several times saying if this scenario were to unfold, the process should wait until the election results.


SEN. LINDSEY GRAHAM (R-SC): I want you to use my words against me. If there's a Republican President in 2016 and a vacancy occurs in the last year of the first term, you can say Lindsey Graham said let's get the next president, whoever it might be, make that nomination. And you can use my words against me, and you'd be absolutely right.

We're setting a president, here today Republicans are, that in the last year, at least of a lame duck eight-year term, I would say it's going to be a four-year term, that you're not going to fill the vacancy of the Supreme Court based on what we're doing today. That's going to be the new rule.


MERCONISH: Joining me now to discuss is Larry Sabato the Director of the Center for Politics at the University of Virginia where he is also a professor. Dr. Sabato that seems like a pretty clear articulation of what the new standard would be? What do you think will now unfold?

LARRY J. SABATO, DIRECTOR, UNIVERSITY OF VIRGINIA CENTER FOR POLITICS: Oh, they'll find various rationales for ignoring that. You know, we're talking about politicians here, Michael.

And they are very good on turning on a dime and coming up with a very compelling reason, at least to their supporters, as to why they're abandons prior pledges nothing new about that, nothing new under the sun.

SMERCONISH: I mentioned Collins. I can mention Lisa Murkowski. I can mention Martha McSally, and I can mention Mitt Romney, in addition to Lindsey Graham. Who is on your radar screen?

I mean, the initial action will be at the White House who will the President select but then this is a battle that will play out in the United States Senate, who does Dr. Larry Sabato most want to know, what are they going to do?

SABATO: Well, you named them, really because I don't think any Democrat will defect. Democrats don't have to get into the substance of the nominee because there's such an obvious procedural hypocrisy here if Republicans go forward with this nomination as I expect they will. But, Michael remembers something that Senate is 53-47 right now.

You are only going to need 50 members of the Senate on the Republicans' side out of the 53 to vote for this nominee whoever it is because Vice President Pence can break the tie. And that means that several Republicans who are on the ballot could be excused from voting for this nominee and could even use it politically to gain support from constituents, say, who are disappointed with them, as Democrats and independents are with Susan Collins in Maine.

SMERCONISH: I'm interested to hear, Dr. Sabato, say that you don't think there's a prospect of defection on the Democratic side of the aisle. A Joe Manchin, for example given the presidents' apparent strong standing in a state like West Virginia, you don't think that he will be in play?

SABATO: He's been surprisingly adhering to the Democratic position on most issues. May be this is his last term in the Senate someone speculated about that. I certainly don't know. But No, this doesn't get into the substance, Michael.

This is going to be about the fact that Merrick Garland wasn't give a hearing or vote practically for a year at the end of President Obama's term. And we're right here in the middle of election season with only a handful of days to go, and Republicans are going to jam a nominee right through the Senate and on to the Supreme Court.

Look, no one can deny the hypocrisy of this. Yes, they will come up with rationales, but it is extremely hypocritical.

SMERCONISH: It seems like discussion of the composition of the bench. And, you know, even I have previously had this conversation. I happen to think that beside the responsibility as Commander in Chief, the responsibility that we give to a president to appoint individuals for life, to the federal bench is the most immense responsibility that they have.


SMERCONISH: And yet, it seems like it's something that gets discussed by the Rs and not as much by the Ds. Is that about to change?

SABATO: Yes. And that's a very good point because generally speaking, in the last few decades, Republicans have cared a great deal about the court appointments and have considered it as a major issue in both their selection of a nominee and the hard work they put in a general election, because of the potential of the Supreme Court and other court nominees.

Democrats generally haven't but you know what? It's always risky to propose an exception. But I think this is going to be the exception. Democrats are hopping mad about this. Not just a little mad. They're also angry, the Senators, the Democratic Senators are angry, because they have been accused of falling into the patsy role for a lot of these other nominations.

And they want to prove that they're tough and that they've got spines. And that they're going to try everything they can to procedurally delay this nomination. Maybe they won't succeed, but, of course, that will lead, properly, if the Democrats control the White House, the Senate and the House into an expansion of the court. That's the next step. And that would be starting in January.

SMERCONISH: I can't help but think that the election calendar is going to influence the President's thinking. I'll give you just one its illustration of what I'm thinking about Judge, Barbara la Goa. Female, Hispanic from Florida I mean, those are three very important criteria for president who is looking at the sunshine state and thinking he needs to win it.

SABATO: That's exactly right. Look, people who pretend that these nominations aren't political, especially when they're made in a political season are too naive to say. Of course, it's very political and the nomination you just suggested if it happens probably would help Trump in Florida. He's on the edge there, anyway.

SMERCONISH: Dr. Sabato, what about the response from Vice President Biden? He spoke last night on camera briefly. I think no surprise in thinking that he believes this should be something left for the next President of the United States.

He hopes that he'll be that individual. You know that President Trump has released a list of here are the individuals I'm looking at, should there be a vacancy. And now there is one trying to bring some pressure on Vice President Biden to show his hand.

I think perhaps setting a bit of a trap, so that then Trump could go after those individuals and probably paint them as being far to the left et cetera, et cetera. What do you anticipate will now be the response from the Biden campaign?

SABATO: Well, Biden's been around for a while. And he knows that would be extraordinarily foolish to actually suggest one or several, or a list of 100, for exactly the reason you said. You're opening yourself up to criticism. And then they deflect the Republicans can deflect the criticism about their nominee. It's the same thing with cabinets.

How many times do you hear people say, he should propose a list his cabinet nominees because that would really get him a lot of support? No, it would open him up to attack on whatever the drawbacks are of every single proposed cabinet nominee. So, Biden's too smart and too experienced to fall into that trap.

SMERCONISH: The final question, I know you're a historian as well. Hypocrisy I mean, it really to me, does seem to be a situation that warrants that label if in fact now there's an effort to steamroll a nominee for Republican President. I'm mindful. I get the argument that Mitch McConnell made that there was a divide between the White House and the Senate, now, we don't have that. Historically speaking, what's the President for the situation we now face?

SABATO: There really is no a President. I guess you could go back to the 1860s with Andrew Johnson, the successor to Abraham Lincoln. And the Republicans running the Congress, running the Senate, were very unhappy with his nominees in general.

And so, they basically prohibited him from giving additional court nominations by changing the number or limiting the number below the nine that we have now. I believe it was seven at that time. By the way, six times, the number of seats on the court has been changed.

Last time was 1869. But there are lots of Presidents for it. That's why I think that's stage two, if in fact Republicans jam this nominee on to the Supreme Court.

SMERCONISH: In other words, are you saying that should the Republicans be successful in getting a nominee approved, and perhaps then Joe Biden is elected President, you think that there would be a serious effort to expand the court, so as to offset that which just took place?


SABATO: Yes, as long as the Democrats also control the Senate and House. It's just an act of Congress. So, yes, that will happen. And Democrats are already saying they want an extra one for what was done to Merrick Garland. And they want one now for what's being done to the Ginsburg seat.

And they want one for a spare. They want a spare. They want three. I'm not saying that will actually happen. I'm not saying it's the right thing to do. We'll have to see how it develops. But I do think there will be a strong partisan effort to do that, to pay the Republicans back for what they've done.

SMERCONISH: How many times can we break the mold in one campaign? Dr. Sabato, thank you so much. I appreciate your expertise.

SABATO: Thank you very much.

SMERCONISH: Up ahead, has the race for the vaccine that will theoretically get America back to a assemble of normalcy gotten hopelessly politicized? And Senate Majority Leader Mitch McConnell made it clear that he wants to bring the President Trump's a nominee to the Senate floor. The clock is ticking. We examine how long the confirmation process normally takes?



SMERCONISH: The U.S. is about to hit 200,000 dead from COVID and yet the race for a vaccine has become a political football. Dr. Robert Redfield, Director of the U.S. Centers for Disease Control and Prevention said this week not to expect widespread vaccination until late summer of next year. Yet, President Trump quickly contradicted him. CNN's Natasha Chen has more.


TRUMP: Well have manufactured at least 100 million vaccine doses before the end of the year.


NATASHA CHEN, CNN REPORTER: President Trump made a jaw-dropping declaration from the White house on Friday.


TRUMP: And likely, much more than that.


CHEN: Despite no proven vaccine yet, he even went further, promising enough for all Americans by April.


TRUMP: The vaccines are going through the gold standard of clinical trials. And very heavy emphasis placed on safety. Three vaccines are already in the final stage. Joe Biden's anti-vaccine theories are putting a lot of lives at risk. And they're only doing it for political reasons. It's very foolish.


CHEN: Trump's time line contradicts the one given earlier in the week by Dr. Robert Redfield, Director of Centers for Disease Control and Prevention. Redfield said there wouldn't be widespread vaccination until late spring or summer of next year.


JOE BIDEN (D) PRESIDENTIAL NOMINEE: I can't think of any President who has ever acted in my view so selfishly for his own re-election instead of a sworn obligation to protect and defend the American people.


CHEN: In the meantime, the U.S. will soon hit 200,000 deaths since the COVID-19 pandemic began outpacing all other countries.


UNIDENTIFIED MALE: We've grown numb to the numbers.

(END VIDEO CLIP) CHEN: And behind each number are a person and family struggling. Justin Vine recently woke up from a medically induced coma 56 days after being put on a ventilator.


UNIDENTIFIED MALE: Oh, it's definitely changed my perspective on my life and - feel. Now I see this in a more real way and I knew it was serious, but it's real - pretty differently by - life. The time we have is precious.


CHEN: For nearly two months while he was in a coma, the seven-day average of new cases saw an overall decline around the country but in recent days it has ticked slightly upward, along with the seven-day average of new deaths.


UNIDENTIFIED FEMALE: It can be a major - on both sides, OK?


CHEN: This is happening in every region of the country including the northeast which had squashed its initial outbreak in the spring.


UNIDENTIFIED MALE: People are being cautious but probably a lot of kids coming back from all over the country to college have a little bit of an impact.


CHEN: Outbreaks among the college population in Boulder, Colorado prompted new testing sites to be set up there. And two college football games this weekend have been postponed due to athletes testing positive. The Kansas City Chiefs, one of the few NFL teams to allow fans in the stadium in the first week had a fan test positive after the September 10th game, now ten others who were in close contact have to quarantine.

On Friday the CDC updated its guidance to once again emphasize that anyone who has been in contact with an infected person should be tested even if there are no symptoms. Natasha Chen, CNN, Atlanta.

SMERCONISH: Still to come, we continue to cover the fallout of the death from Ruth Bader Ginsburg when legendary liberal Justice Thurgood Marshall President George W. Bush replaced him with his ideological opposite, Justice Clarence Thomas will Ginsburg see end up suffering the same fate.


[08:45:00] SMERCONISH: The death of Justice Ruth Bader Ginsburg Friday at the age of 87 has huge political implications coming so close to Presidential Election. Senate Majority Leader Mitch McConnell who refused to consider Former President Barack Obama's Supreme Court Nominee in the months leading up to the 2016 election, vowed Friday to a hold the vote on President Trump's nominee to succeed her.

Joining me now to discuss is CNN Senior Legal Analyst Laura Coates. Laura, let's remind people that President Obama was successful in placing two Justices on the Supreme Court in eight years. It would have been a third if Merrick Garland had ended differently. President Trump stands the prospect of having three in four years.

LAURA COATES, CNN SENIOR LEGAL ANALYST: Three bites at the apple, and that includes lifetime tenure on the land's highest court that decides so many important cases with longevity and a gravitas that no other court in our nation has.

And frankly remember, we're also talking about an ageing court here Smerconish the idea of Justice Breyer is also in his 80s. You've got people like Thomas who are in their 70s as well. So you're talking about an ageing court.

And so the idea of having three bites of the apple within a four-year term is, again, unprecedented and what else is new in this administration?


SMERCONISH: Well, and something else that I think is important to remind people that the two thus far, and I'm speaking of Gorsuch, Justice Gorsuch and Justice Kavanaugh were essentially replacements for ideological kindred spirits. We could have an interesting conversation on Kennedy. But this is different, right? This change fundamentally what the balance has been?

COATES: This is so different than Gorsuch or Kavanaugh's confirmation. This is more in line with what happened when Justice Thurgood Marshall was replaced by Justice Clarence Thomas. Yes, two of them are both African-American men and the only African-American men to have served in this capacity but they're ideological foes in many respects.

You've got Thomas, who is somebody who is known to be an originalist, meaning looking at the actual words of the constitution as a more of a dead document, compared to Marshall who would be looking at is a living document often said.

Look, you do what is right and you let the law catch up to it. Very different stance as the two individuals had in terms of voting and in terms of right for civil rights and even what types of cases they were willing to look at and how they actually made their decisions?

And so you've got something more akin to that now. And I'm a little concerned at this point now, Michael, that you would have somebody to replace Justice Ginsburg who would be her ideological foe. Now there's no guarantee in the constitution nor is there any requirement, as you and I know that you have to replace with their mirror image. But if you're doing it in a way that is hyper partisan that follows hypocrisy of a treatment related just to Merrick Garland, then I think we're in very dangerous territory about the precedent that will be set.

SMERCONISH: I anticipate that one of the arguments that you'll hear coming from Republicans, the White House, et cetera, is that well; we can't stand the prospect of a tie, right? We can't leave it at eight on the verge of a Presidential Election that may require some level of judicial oversight to get to us the finish line, your thought on that?

COATES: Well, of course, we've had instances before where you've had eight Justices rule on something. There is always the prospect of 5-3. There is the prospect of 4-4 tie which is what happened when Scalia passed, when Justice Rehnquist had a surgery and he was on leave for some time.

You have this moderate American history where Justices are often reluctant to now take cases because if there is that split it means that the lower court holding is going to stand. It doesn't have much precedent value. However there are instances as in the 11-month window when Merrick Garland was not given an opportunity to have a hearing where Justices were unable to make decisions.

And so we're not in uncharted territory there. But you're absolutely right. Just think back to 2000, how pivotal, how critical the Supreme Court was and essentially deciding who would be the victor in a presidential race? That prospect looms large particularly in the time when you've got the COVID-19 pandemic questioning for everyone how will people be able to participate meaningfully, and in a way that they will be able to decide the elections for themselves?

SMERCONISH: Laura, will you take our final minute and comment on something I raised with Dr. Larry Sabato? And that is that in a political context, it seems like the composition of the bench and the type of Judge or Justice who will be nominated is the sort of thing about which Republicans thump their chests and Democrats say very little. Is this about to change that dynamic?

COATES: I think so, I mean, as you know, just to be crass here, people have been circling the waters for some time, questioning who would be the third opportunity for the President Donald Trump, to make a decision?

Now, he's essentially forcing the hand of, say, Joe Biden, to come out and say, well, look, if I am elected president I'm not going to hold it close to the vest of who my potential nominees will be. What would a Biden Presidency a Biden nomination look like?


COATES: He'll have to answer that question now, because that will be on top of mind for every single voter, particularly those who compartmentalize their dislike of Donald Trump in favor of who he could potentially place on the court?

SMERCONISH: Laura Coates, thank you so much.

COATES: Thank you.

SMERCONISH: Please stick around; I'll be anchoring the next hour of CNN's Special Breaking News Coverage of the death of Ruth Bader Ginsburg. Does the GOP have a chance of pushing through a successor before the upcoming election?



SMERCONISH: America mourns the loss of a legal, cultural and feminist icon. I'm Michael Smerconish in Philadelphia. Supreme Court Justice Ruth Bader Ginsburg has died of complications from pancreatic cancer. She was 87. She was appointed to the nation's highest court by President Bill Clinton in 1993, only the second woman to be appointed to that position.