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Supreme Court Justice Ruth Bader Ginsburg Dies At 87; Can GOP Replace Ginsburg So Close to Election?; McConnell: Trump's Nominee Will Receive A Vote On The Senate Floor; Replacing Ruth Bader Ginsburg Could Reshape Court For A Generation. Aired 9-10a ET

Aired September 19, 2020 - 09:00   ET




MICHAEL SMERCONISH, CNN ANCHOR: 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.

In recent years, she served as the most senior member of the court's liberal wing, delivering progressive votes on divisive issues and somewhere along the way in her Supreme Court journey, she developed something akin to rockstar status, a larger than life figure.

Jeffrey Rosen, the President of the National Constitution Center, joins me to remember the woman who was dubbed the "Notorious RBG." Jeffrey has known her for decades and wrote a book about his interactions with her called "Conversations with RBG." Jeffrey, let me begin by first expressing my condolences. Many of us are discussing Justice Ginsburg today, but few knew her for as long as you and it all began in 1991 on an elevator ride. Explain.

JEFFREY ROSEN, PRESIDENT & CEO, NATIONAL CONSTITUTION CENTER: I was a young law clerk on the Court of Appeals, she was a judge and she was coming down from an exercise class. Even then, she was always exercising, but we were in the elevator and she was completely silent and just to break the ice because I was so intimidated I blurted out the first question that came into my mind which is what operas have you seen recently?

And as it turned out of course I don't even think I knew this at the time, she's an incredible opera fan and I am too and we just bonded immediately over a shared love of opera and we began talking about music throughout that year and continued that conversation over the next 30 years where our conversations expanded to life, love, liberty and law and the friendship is one of the greatest blessings of my life.

SMERCONISH: Is it fair to say that, in a way, she credited you with the notoriety that she achieved because you wrote about her for "The New Republic" at a time when many didn't know the name "Ruth Bader Ginsburg." ROSEN: Well, I was just a footnote in that important confirmation battle. As hard as it is to believe, at the time, when Justice White retired in 1993, Justice Ginsburg wasn't at the top of the list to replace her. Some feminist groups were opposing her because of her criticism of Roe v. Wade.

And with the overconfidence of a young journalist, I wrote a piece arguing that she would be the best candidate for the court and that her nomination would be acclaimed by liberals and conservatives and Senator Moynihan mentioned it to President Clinton and Justice Ginsburg accredited it in some small way of being one of the many unsolicited testaments from friends who admired her and knew her extraordinary achievements in helping her get the nomination, but I was -- I was just a footnote and it was just a remarkable blessing that President Clinton chose her.

SMERCONISH: It's interesting that you recall the opposition that, at that stage, she had drawn from feminist groups. She's known -- her legacy, I think you'd agree, is best in the area of discrimination and yet she often went out of her way to represent male plaintiffs. Will you speak to that?

ROSEN: She did. In the '70s, she realized that the mostly male, often sexist judges of her time were more likely to empathize or connect to male plaintiffs rather than women. So one of her most famous cases was representing a father whose wife had died and he wanted survivor's benefits from Social Security to care for his young son. The law at the time only gave the benefits to women, not men based on the stereotypical assumption that only women would be caregivers and she challenged that law and persuaded the Supreme Court to strike it down.

It was part of her strategic genius, but also part of her deeply powerful vision of equal treatment for all. In her view, the Constitution was an embrasive document, and embrasive was her words, that embraced men, women, people of color, immigrants, LGBTQ people, always in the service of equal protection of the law.

SMERCONISH: Jeffrey, not many of us can say that we were married by a Supreme Court justice. Tell me your story.

ROSEN: It was an amazing honor obviously, a small ceremony at the Supreme Court. She asked Lauren and me to send drafts of our vows before the ceremony and the thing about Justice Ginsburg is that she's an unbelievable deadline enforcer and copy editor. She's the most fearsome copy editor imaginable and she's really serious about deadlines and always meets her own and expects you to meet them.

So she said send the draft of your vows by 4 P.M. on Tuesday some such day. We forgot about the deadline. We were all excited about something else. Ten A.M. that morning, an e-mail from the Justice, I'm expecting the vows at 4 P.M.. Oh, my goodness. So we edited them, we sent them in at 3:30. At -- I don't know -- 3:45 she sends them back with her changes and track changes. She changed the line that she'd usually -- she'd originally used this line Jeffrey, you may kiss the bride. She changed it to Jeffrey and Lauren, you may embrace for the first kiss of your marriage. [09:05:03]

So even then, although she'd used the previous line before, always thinking, always copy editing. And Michael, if I can share one more copy editing story, the only time that she ever became firm with me was when I sent her the draft transcript of the interview that we did in December 2019 that's going to be published in the paperback edition of "Conversations with RBG" and the publisher had asked for a deadline on Friday.

She had just decided the dissent in that voting rights case where she objected to the artificial deadline that had been imposed by the state and the ballots wouldn't be counted. Maybe she had that on her mind, but she fired back this fierce e-mail, I do not approve publication until I've had the chance to review it and I don't know if I can meet the Friday deadline. I said, I'm so sorry, of course, have as much time as you need. Friday at 8 P.M., boom, e-mail comes back with her copy edited manuscript.

The woman -- I tell that story because her powers of focus, concentration, always setting the bar higher for herself than for anyone else and always meeting every deadline, surpassing every expectation, laser-like focus on every single task, every word was part of what made her -- what makes her the greatest advocate for constitutional change of our time. It was extraordinary to see that in action.

SMERCONISH: Your recounting of her work ethic is just remarkable. Married for 56 years and immediately after her husband's passing, goes right back to work. Am I correct?

ROSEN: Yes. And I asked her, you know, how did you do it? I had interviewed her a few weeks later and she said it's what Marty would have wanted and if you just think about it for a second, it is because it's just -- she understood that we all have a responsibility to be our best self so that we can serve others and she grieved him until the day she died of course and he was always part of her spirit.

But for her, honoring their love and their marriage was part of continuing to serve her purpose so that she could serve others and that's what we all have to do today and that's what I'm trying to do by talking with you, is just keeping it together so that we can honor her memory and capture the greatness so that Americans of all perspectives, regardless of whether you are liberal or conservative friends and watching today, let's recognize how blessed we were to have been in the presence of one of the most significant historical figures in American history, admire all that she devoted to public service and to the Constitution and properly do honor to her memory.

In that spirit, the National Constitution Center just two days ago ran this unbelievable Liberty Medal tribute to Justice Ginsburg where he assembled her favorite opera singers and special friends to offer her tributes in words and music.

And I'd love it if you would check out the video which is at because it captures very personal tributes from Gloria Steinem and Jennifer Lopez and Denyce Graves and Renee Fleming, the great opera singers all speaking and singing about what she meant to them and for me, this video just is the definitive tribute to her shining spirit. So I hope you'll share it as well.

SMERCONISH: Hey, thank you so much for humanizing her for the rest of us who never had the privilege of meeting her and getting to know her. Can we end on a soft note? Because I have recollection of something that I learned from your book. It was advice that she was given by her then, I think, perspective mother-in-law, marital advice. Do you remember where I'm going with this, Jeffrey?

ROSEN: I sure do. She loved to tell it. Her mother-in-law told her ...

SMERCONISH: Tell that story. Yes.

ROSEN: Yes. It was the morning of her marriage and talking to her mother-in-law and her mother-in-law said sometimes it helps to be a little deaf and Justice Ginsburg would always add, very good advice I still follow even on the Supreme Court. And the idea is that when there's an unkind word or when someone loses their temper, ignore it, don't be distracted from your path, overcome unproductive emotions like anger, jealousy and fear, her own mother told her, so that you can save your energies for productive work.

It's the most important life lesson imaginable. It's very hard to achieve in practice. She achieved it better than any human being I've ever seen, but let's all try to honor her by doing that today and every day.

SMERCONISH: That was beautifully said. Thank you so much. I really appreciate it.

ROSEN: Thank you, Michael.

SMERCONISH: I want to know what you're thinking. Go to my website this hour at Come on. This is the issue of the day, so let's ask it. Should the vacancy created by the passing of Ruth Bader Ginsburg be filled by President Trump and the current Senate? We've already got a lot of reaction to that survey question.

Catherine, what do you have from Twitter? "If Trump tries to nominate a justice before the election, all the undecided Bernie voters will vote for Biden, all the undecided women will vote for Biden, all the undecided black votes will vote for Biden."


I guess my only critique of that tweet is to say I didn't know there were so many undecided people left in this country. All the data that I see says everybody's made up their mind and that it's a turnout election, not a persuasion election. I'm not detracting from your point. I just think that the political impact of this will be its motivation factor.

By the way, motivation for Republicans and Evangelicals because what they most want out of President Trump is exactly this, the recomposition of the federal judiciary and those on the left and who are supportive of Joe Biden who say, wait a minute, this is hypocrisy, you know, this is not the way you played with Merrick Garland.

Still to come, in 2016 when Justice Antonin Scalia died nine months before the presidential election, Senate Majority Leader Mitch McConnell refused to even hold hearings for President Obama's nominee to replace him, the aforementioned Merrick Garland, but now with the last day of voting only 45 days away, McConnell has pledged to get a Trump nominee to replace RBG to the Senate floor. Will they be successful?




SMERCONISH: Yesterday at the age of 87, Supreme Court Justice Ruth Bader Ginsburg passed away due to complications from metastatic pancreatic cancer. Since her appointment to the Court in 1993, Justice Ginsburg, affectionately dubbed "RBG" by her multi-generational fandom, gained notoriety for her consistently left-leaning votes and scathing dissenting opinions.

The passing of such a prolific legal scholar would be a considerable loss under any circumstances, but as we sit just 45 days from November 3rd, it's hard not to think about the impact this will have on presidential politics.

Four years ago, we faced a similar predicament with one key difference. In February of 2016, the famously conservative Justice Antonin Scalia died unexpectedly. Hours after the country learned of Scalia's passing, Senate Majority Leader Mitch McConnell announced that the Republican-controlled Senate would not consider a nominee from the Obama White House.

His threat proved true. In March, President Obama nominated Merrick Garland, the Chief Judge of the D.C. Circuit Court of Appeals, to fill Scalia's spot on the bench. Although Garland had received overwhelmingly bipartisan support from the Senate when he was appointed and confirmed to the D.C. Circuit Court, this time around, he did not even receive a hearing.

Four years ago, Senator McConnell argued that to select a new Supreme Court justice so close to a presidential election and under the circumstances of divided government would be to rob the people of their say in the matter. McConnell claimed he was invoking the Biden rule. In the summer of 1992 as chair of the Senate Judiciary Committee, Joe Biden had warned against the potential nomination of a Supreme Court justice so close to a presidential election.


JOE BIDEN (D), PRESIDENTIAL NOMINEE: It would be our pragmatic conclusion that once the political season is underway, and it is, action on a Supreme Court nomination must be put off until after the election campaign is over. That is what is fair to the nominee and essential to the process. Otherwise, it seems to me, Mr. President, we will be in deep trouble as an institution.


SMERCONISH: When asked in February of this year how the Senate would handle a SCOTUS vacancy in 2020, McConnell had this to say.


SEN. MITCH MCCONNELL (R-KY): Let me remind you what I said in 2016. I said you'd have to go back to the 1880s to find the last time a vacancy on the Supreme Court occurring during a presidential election year was confirmed by a Senate of a different party than the president. That was the situation in 2016. That would not be the situation in 2020.


SMERCONISH: Last night, candidate Joe Biden said this about the SCOTUS vacancy.


BIDEN: Let me be clear that the voters should pick the president and the president should pick the justice for the Senate to consider. This was the position the Republican Senate took in 2016 when there were almost 10 months to go before the election. That's the position the United States Senate must take today and the election is only 46 days off.


SMERCONISH: But at the end of McConnell's statement honoring the passing of Justice Ginsburg, he made his position very clear. Quote, "We will keep our promise. President Trump's nominee will receive a vote on the floor of the United States Senate.

Joining me now is Amy Howe, co-founder of the "SCOTUSblog." Amy, was there really ever something called the Biden rule? He said what he said, I played the tape, but was that ever the mantra, was that ever signed off on by both parties in the Senate?

AMY HOWE, CO-FOUNDER, SCOTUSBLOG: Well, it was all sort of hypothetical. You know, he said it in, I believe, June of 1992 talking about a possible vacancy on the Supreme Court, but there wasn't a vacancy that occurred in which they had to apply it and then later on, he also said, you know, it was sort of taken out of context, I was talking about sort of the need for bipartisanship. So I think it probably is a little bit of a stretch.


It was maybe more along the lines of what the Supreme Court might call an advisory opinion rather than a rule. SMERCONISH: So I went a bit into the weeds a moment ago. I thought it necessary to lay out exactly what the history was and to present all of the facts. My own view is that the American people -- maybe I'll be wrong -- watching this at home will say, well, wait a minute you treated Merrick Garland one way and you're now trying to act differently. Hypocrisy is really what I'm saying.

HOWE: It's really kind of a topsy-turvy world because, you know, the Republicans were very clear back in 2016 that they weren't going to give Merrick Garland a hearing, much less a vote because it was a presidential election year and now they're saying of course we're going to give the president's nominee a vote and, you know, you weren't paying attention, we said it back then and we're saying it again because this is very different circumstance because you had a Democratic president and a Republican Senate, now we've got Republican Senate and a Republican president.

It's not really clear what difference that makes. You know, I think there are accusations of hypocrisy on both sides. I think Democrats are going to say, look, you know, we're now just asking you to follow the rule that you've articulated back in 2016.

SMERCONISH: Well, isn't the reality -- I mean, in response to Senator McConnell, isn't the reality that the reason that you don't often have Supreme Court nominations put forth in the latter part of a term when there's a divide between the Senate and control of the White House that often you've got members of the Supreme Court, to the extent they're able, to hang on because they don't want someone from the opposing party to fill their seat?

HOWE: I think that that is definitely right. I mean, I think for the most part, members of the Supreme Court try to choose -- not only for that reason and that is often a consideration. They want to ensure that they will be replaced by someone who will have similar views and Justice Ruth Bader Ginsburg said that that was one reason why she didn't retire at the time, was I wanted -- you know, they couldn't put someone like me on the Supreme Court.

And that, you know, they also just do it for purpose for other reasons. Justice Sandra Day O'Connor retired to spend more time with her husband, but she was also sort of talking, it turns out, behind the scenes with Chief Justice William Rehnquist who was ill because they didn't want to have two vacancies at the same time. So there's definitely a fair amount of thought that goes into the process by the Supreme Court justices and so this has come up twice now, both times when the justices have passed away unexpectedly.

SMERCONISH: Senator Schumer has said that he'll hold a call with his caucus at 1 P.M. today. What options do Democrats have other than to try and build some groundswell across the country that this is at odds with what went on four years ago?

HOWE: I think, you know, that building -- their options are to build groundswell and then, you know, perhaps with that groundswell to try to convince, you know, at least four Republican senators to vote no on whoever the president puts forward, you know, if even -- they need at least four because if only three Republican senators vote no, then the Vice President Mike Pence can break the tie and a nominee could be confirmed.

SMERCONISH: Amy, may I recommend the obituary that you wrote for "SCOTUSblog?" It's very detailed, has a lot of substantive information and also a good -- a good snapshot of Justice Ginsburg's personality, so thank you for being here.

HOWE: Oh, thanks for having me.

SMERCONISH: Let's see what you're all saying via my Smerconish Twitter and Facebook pages. From the world of Twitter I think, "Imagine Trump holding off on nomination. Good strategy for him to dangle the next nominee in front of voters who otherwise would have been done with him." You know, my reaction to that is to say the following. I get that the objective of the President and Senator McConnell is the same insofar as wanting to replace Justice Ginsburg with a conservative.

I get that, but maybe it's too simplistic to say that they're on the same page, especially where the President's numbers currently are where they are and where you've got a number of Republican senators who are -- who are on the bubble. At what point does McConnell say, hey, I'd like to see President Trump get reelected, but frankly it's more important to me that Republicans maintain control of the Senate and does that then prevent some break in the road between the two of them in terms of the timing? File that thought away.

I want to remind you, go to my website at and answer the survey question this hour. Should the vacancy created by the passing of Ruth Bader Ginsburg be filled by President Trump and the current Senate?


Up ahead, in past years through all that has gone on from impeachment to the pandemic, the aggregate polling numbers of Donald Trump versus Joe Biden has basically never changed. Will the vacancy on the Supreme Court created by the passing of Ruth Bader Ginsburg move that needle?


SMERCONISH: America is coming to terms with the loss of Supreme Court Justice Ruth Bader Ginsburg and unfortunately, politics plays a role. Exactly how much could this shake up the 2020 election? Up until now, what has shaken this election? Well, even before Justice Ginsburg passed, these past 11 months have certainly been a whirlwind.

Consider that we've seen the following -- a strong economy that carried over to the start of 2020, impeachment. A U.S. strike against Iran, a disastrous pandemic, a racial reckoning with major protests, ex Trump officials speaking out against their former boss, and recently "The Atlantic's" reporting that the president had disparage war dead. But get this, none of those issues, good or bad for the president, moved the needle on his support.

"Atlantic's" senior editor Ronald Brownstein wrote a great piece for CNN this week titled "Why the stability of the 2020 race promises more volatility ahead." And in it, he cites this amazing statistic, the "Real Clear Politics" average of national polls last October showed Biden at 50.1 and Trump at 43.4. The result last weekend, Biden 50.5, Trump, 42.7. Essentially no change. Could this stable trend now change with the passing of Ruth Bader Ginsburg?

Joining me now to discuss his piece, CNN Senior Political Analyst, Ron Brownstein. Ron, I highlighted, I underscored -- I mean, that takeaway of the "Real Clear Politics" --


SMERCONISH: -- was just mind-boggling. Offer me your thoughts.

BROWNSTEIN: Well, I think the -- first of all, Ruth Bader Ginsburg passing obviously is just an enormous moment in the history of the country. A titan of the law and a figure in popular culture the way Supreme Court justices rarely have been, but I don't think it is going to change the presidential race very much. Not only because the race has been kind of immune to significant alteration and people have really dug in on Donald Trump but because -- but because it tends to, I think, reconfirm or reinforce the basic reason for that stability.

And, you know, I think if you look at American politics that I've been arguing since 2012, the fundamental dividing line, the fundamental fault line is between what I call the coalition of transformation, the Democratic coalition that welcomes the way the country is changing demographically and culturally, tends to be centered on young people, people of color, college educated white voters, secular voters mostly located in the big metros, and the Republican competing coalition of restoration which is centered on older blue collar, non-urban and evangelical, and to a large extent other white Christians most of them outside of urban areas.

The fight over replacing a Supreme Court nominee, you know, goes right to the heart of that divide. And I think is more likely to reconfirm, than rearrange, the basic division that we now see in the race.

SMERCONISH: Here's what I took away from your piece. It was that we've moved away from being issue-oriented, having our disagreements on social issues and economic issues and tax cuts, abortion. And now, it's all become about identity. First of all, did I get the message?

BROWNSTEIN: Yes. Right. Overwhelmingly -- I wouldn't say all, but overwhelmingly about identity. The coalitions are driven by identity at this point. Absolutely.

SMERCONISH: OK. So does this issue then, the replacement of Justice Ginsburg, does this then become more of a motivator, for those who want to preserve the status quo, or America's great heritage? Or those who are more akin to progressive changes taking place in the country? Who benefits, Biden or Trump?

BROWNSTEIN: Look, I think it reaffirms the lines that we have in which the coalition of transformation, the Democratic coalition, the coalition that is comfortable the way the country is changing is larger. If Biden wins the popular vote as is virtually certain, it will be seven of the last eight elections in which Democrats have won the popular vote.

That's never happened, Michael, in American history since the formation of the modern party system in 1828. And I think there will be enormous anxiety in the Democratic coalition and urgency in the Democratic coalition about the prospect of a lasting Supreme Court majority that is hostile to essentially the entire social agenda of inclusion of that coalition.

But because of the way that coalition is distributed, even though it is larger it is not guaranteed to run things both in terms of the Electoral College and the Senate, each of them amplify the influence of the Republican coalition of restoration. And I think that's exactly where we are in this election.

Now, it is worth noting that with fresh polling as recently as this week in "The New York Times"/Siena polls in states as different as Arizona, Maine and North Carolina, and in all of them Biden led Trump on who you trust to name a Supreme Court justice. I think these lines are very engraved at this point. And I don't think this is going to change it.

The bigger question is what happens to those Republican senators in tough races for reelection? I think, you know, obviously, most of them are going to side with the party, despite the obvious, the big hypocrisy from 2016. But you only -- you may only need a couple motivated by fear because you do have a few who might be motivated by shame not to do this, Mitt Romney, Lisa Murkowski, maybe one of the retiring senators Lamar Alexander, Pat Roberts.


The question is, Susan Collins, Joni Ernst, Thom Tillis, do any of them say I can't -- Cory Gardner, do any of them say I can't do this and get reelected? And do I care? You know, that this basically would seal my fate in reelection. Martha McSally certainly did not already.

SMERCONISH: Ron, I get the stability of the race viewed through the national lens, as evidenced by the "Real Clear Politics" averages. What explains then the disconnect between volatility in states like some that you've named, and the stable picture nationwide?

BROWNSTEIN: Well, I think part of it is -- are in fact the polling, part of it is the states are subject to more active -- the swing states you're talking about are subject to more active campaigning so it can be affected by which side is spending a lot of money on television at the, you know, at that moment or not.

But I would say, Michael, that you know, the swing states are unlike the president who said that if you take out the blue states America is doing just fine on the coronavirus which obviously isn't true on its own terms. The swing states are not separate from America.

You know, I've tracked roughly 20 state polls that have been released since last weekend, and Joe Biden led Donald Trump among college- educated white voters in 19 of them, all of them except South Carolina, in many cases reaching margins that Democrats have never achieved before. On the other hand if you look at among the non- college white voters, the Republican coalition, Trump led in almost all of them.

Although there's a significant regional difference where Biden is clawing back somewhat among those voters in the north, even as he still faces deficits of Trump running about 70 percent or more among them.

In the south and among people of color, you have this kind of fascinating dynamic where Trump is doing a little better than he was in 2016, largely because he's improving among black and Hispanic men. Not enough to face -- to change the overall two to one or roughly 70 percent number of a Biden among non-white voters but not as high as Democrats have seen before.

These patterns are consistent all across the country. What you see in the national polls and they basically tell you the same story as I've said to you before, Donald Trump's strategy is to squeeze bigger margins primarily out of groups that are shrinking at the expense of alienating the groups that are growing. And I do think that a Republican effort to put -- you know, put someone on the court at this late moment will only intensify.

Can I raise one quick point on that? This will be the third nominee seated by a president who lost the popular vote, confirmed by a Republican Senate that represents less than half of the country, if you assign half of each state's population to each senator. In fact, the current Republican senators won 14 million fewer votes than the 47 Democrats in the minority.

You go back, George W. Bush losing the popular vote named two SCOTUS justices. The other Republican nominee on the court, Clarence Thomas, was confirmed by senators who represented less than half of the population.

We are heading towards a crisis of legitimacy around majority rule, I think, through the 2020s in this country. And a court that is hostile to the agenda of these emerging generations. You know, millennials and Generation Z at this point are a bigger part of the American population than baby boomer at any point in their history. I just think we are heading for something like the late 1850s or the 1930s where the court (ph) and the country, the new majority are on a collision course.

SMERCONISH: I'm going to take the final word. The takeaway that I had from your think piece is that these issues transcend Donald Trump. That there's a belief --


SMERCONISH: -- among some who think, well, his antagonists -- well, if Trump is gone in January or four years hence we get back to some semblance of normality -- normalcy. But the division that you write about in this piece suggests, OK, Trump may be emblematic of it, but it's deep and it exists. And somehow we got to get well beyond it.

They're waving at me. I'm way the hell over. Ron, thank you.

BROWNSTEIN: Thank you, Michael. I'll wave too.

SMERCONISH: Let's check in on your tweets and Facebook comments. From the world of Twitter. What do we have?

Smerconish, Trump may just choose a more central leaning judge. No way, I'm not even going to read the second half of that. I'm not even sure what the rest of it -- he's given you the list of 20. He's going to take a look at somebody like Barbara Lagoa who is a threefer in terms of demographics. I'm sorry to be crass and to look at this in political terms, but I think this is where we are.

Barbara Lagoa, on the 11th Circuit, formally a Supreme Court of the great state of Florida. So, it's female, it's Florida, it's Hispanic. In a state that he desperately needs to win so much so that Michael Bloomberg is dumping $100 million in one state for Joe Biden.


Think about that. I want to remind you answer the survey question at this hour.

"Should the vacancy created by the passing of Ruth Bader Ginsburg be filled by President Trump and the current Senate?"

Up next, if President Trump and the GOP Senate are able to put forth and confirm a conservative replacement what does it mean for the future of such divisive issues as gun rights, affirmative action, Roe versus Wade, not to mention the upcoming election itself?


SMERCONISH: You probably know but if you're just joining us, Supreme Court Justice Ruth Bader Ginsburg passed away Friday at the age of 87 after serving more than 27 years on the court. The court now has five conservative justices nominated by Republican presidents, three liberal justices nominated by Democrats.

CNN has learned that Senate Minority Leader Chuck Schumer holding a call today with his caucus at 1:00 p.m. to discuss the SCOTUS vacancy and Democratic strategy understandable because if the President Trump and the GOP Senate are able to put forth a conservative replacement the court could be reshaped for a generation.


What does it mean for gun rights, for affirmative action, Roe versus Wade and more pressingly all the issues that could arise from the fall election itself? Joining me now is Robert Barnes, Supreme Court correspondent for "The Washington Post" who just wrote this piece, "Ginsburg's death sets off political battle over her replacement," and the Supreme Court's future. Robert, when it was Scalia who passed and Gorsuch was the replacement, when we lost Kennedy and it was Kavanaugh, the ideological composition of the court didn't shift or at least not that much but this would be monumental, explain.

ROBERT BARNES, SUPREME COURT CORRESPONDENT, WASHINGTON POST: Well, it would be a much different kind of shift, you're right about that. Those justices replaced justices who were conservative. One (ph) could argue that Kavanaugh is more conservative than Kennedy and that would be correct.

But this would be something completely different in replacing one of the liberal justices. Remember that liberal wins at the Supreme Court in recent years on same-sex marriage, on affirmative action, on abortion rights have been because the four liberals have stuck together and have brought over one of the conservative justices. If there are six conservative justices then that becomes impossible.

SMERCONISH: It really -- and you addressed this in the "Post" today, it really places the chief justice in the Anthony Kennedy position which he's been doing more and more recently. Speak to this through the eyes of John Roberts.

BARNES: Well, you know in 2016, after Scalia died, we all thought, OK, this means that Chief Justice Roberts' power is diminished because there will be a liberal majority on the court, of course, that didn't happen as we've been talking about this morning because of the Republican Senate. And, instead, Roberts became publicly the most influential and powerful chief justice in decades.

Now, we face that sort of prospect again, that his power will be diminished. His power comes from having four justices who are more conservative than he is and four justices who are more liberal than he is. Putting him in that central position. With the court shifting with more conservative that will move the center of the court somewhere else not to Roberts.

SMERCONISH: Those of us who remember hanging chads, and certainly this CNN audience does, could easily envision a situation where the very issue we're discussing could be consequential for the outcome of the 2020 election.

BARNES: Yes. The court has already had to referee a number of fights between Republicans and Democrats over voting procedure. And so imagine that the election itself becomes an issue, who is going to decide that? Right now, there are eight justices, as you say, by -- from Republican presidents, three from Democratic presidents. I noticed that Senator McConnell has not talked about when he would want a vote, whether it was before the election or after the election. But, you know, we're really going into some sort of treacherous territory.

SMERCONISH: A final, very quick thought. If I were to name the Supreme Court justices and ask most Americans to tell me something about them, their personality, I think they'd be stymied. And yet, Justice Ginsburg, we all felt like we knew her, right? BARNES: Well, she's certainly been around for a long time. And she got this recent notoriety the Notorious RBG in which young people especially really clued in and tuned into her dissents as she became an icon, and probably the most well-known member of the court.

You know, the court is sort of largely anonymous as maybe it should be. The court wants to speak with one voice, rather than a bunch of voices. But she was certainly distinctive and had become a phenomena.

SMERCONISH: Robert Barnes, thank you so much. We appreciate your being here.

BARNES: My pleasure. Thanks for having me.

SMERCONISH: Still to come, more of your best and worst tweets and Facebook comments. And the final result -- this will be interesting. The survey question at

By the way, while on air I was just handed the result of a brand new national survey on this very issue. So, I'll be able to do a comparison between how the CNN audience is voting right now versus some other polling data on the same issue.

"Should the vacancy created by the passing of Ruth Bader Ginsburg be filled by President Trump and the current Senate?"


Go vote.


SMERCONISH: This is going to be really interesting. First, here are the results of the survey question from this hour.

"Should the vacancy created by the passing of Ruth Bader Ginsburg be filled by President Trump and the current Senate?"

I haven't seen the result, but here it is. Hit me with it. Ninety- three to 7. Put that back, 93 to 7. Those of you watching say, no. Don't do it. I anticipated it would be that lopsided, but it is the question of the day.


Now, while I'm on air Marquette University Law School this morning released a new national poll, national poll just days before Justice Ginsburg's death. Put it up on the screen. Here is what it concluded.

When Americans were asked, "What should the Senate do if Trump appoints a SCOTUS judge in election year?" Sixty-seven percent said hold the hearings. I mean, it's amazing.

Is that attributable to bias on the part of those who went and voted in my survey? Is it that it's emotional today because she just passed? Big disconnect between our votes and what Marquette revealed. Thanks for watching. See you next week.