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Who Will Fill Gap in Supreme Court if Rehnquist, O'Connor Resign?

Aired May 21, 2003 - 19:43   ET

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

DARYN KAGAN, CNN ANCHOR: That ruling is an important reminder of just how powerful judges are and how it can affect people's lives. Think civil rights, think abortion, now the "Washington Post" quotes well-informed court observers who say that Chief Justice William Rehnquist and Sandra Day O'Connor could resign as early as next month. What kind of judges President Bush will nominate is a subject of Jeffrey Toobin's article in the latest "New Yorker." How convient for that.
JEFFREY TOOBIN, CNN LEGAL ANALYST: How about that.

KAGAN: And we have Jeffrey with us. He also is our legal analyst here to explain that. Good evening.

TOOBIN: Hi.

KAGAN: Are we just taking two seats, do you think?

TOOBIN: Two seats at most. The rule in my experience from Supreme Court resignations is those who know don't tell and those who tell don't know. So we don't know whether these two will resign.

KAGAN: So when you look on an individual basis. William Rehnquist has had a bad back for a long time.

TOOBIN: Just had knee surgery. He's been on the Court since the early '70s. He is a serious Republican. As is Sandra Day O'Connor.

KAGAN: The timing is important.

TOOBIN: It is believed that they believe that a Republican president should replace them. This year they can be certain that President Bush has two years to get a nominee though if they were to resign in the next term, June. You're in the middle of a presidential year, and even though it looks likely to most people that President Bush will be reelected there's no guarantee of that. To guarantee Republican success, the end of this term, the June is the time to quit.

KAGAN: Let's talk about some of the possibilities. White House Alberto Gonzales, you here his name over and over again.

TOOBIN: There really are two categories of candidates there's. Alberto Gonzales and there is everyone else. Because he seems to fit the bill in so many ways. He is the White House counsel, he was briefly a justice of the Texas Supreme Court so he has some judicial experience. the Bush family very fond of people who have worked with them, and he's been with President he was -- since President Bush was Governor Bush. He would be the first Hispanic on the court. He seems to fit the bill. He's 47 years old.

KAGAN: He kind of fits the bill, but surprisingly some people who have the most trouble with him are Conservative Republicans.

TOOBIN: Well, that's the rumor. Again his true views on these judicial issues aren't known and wouldn't really be known until confirmation hearings if he gets nominated. But there is a rumor, there is a saying among some Republicans in Washington that Alberto Gonzales is Spanish for David Souter. And what that means is Republicans were very disappointed that David Souter turned out to be a fairly liberal justice. They're worried the same would be true for Alberto Gonzales.

KAGAN: Real quickly if William Rehnquist steps down you're not just losing a justice, your losing a chief justice, who's already on the court might get that position.

TOOBIN: The best guess is Justice Scalia would be. Because he even though he's somewhat older than most people who were promoted to chief justice, he is the truest of the true blue conservatives on the court. Someone who would live give the president political protection maybe to nominate a more moderate associate justice, but no one knows.

KAGAN: No one knows.

TOOBIN: Including me.

KAGAN: You know, people do know, at least people around here do know it's Jeffrey Toobin's birthday today.

TOOBIN: How about that.

KAGAN: How about that. And look at this, we have a cake.

Sanjay.

(SINGING)

KAGAN: You show everybody. Don't drop it.

TOOBIN: Well, thank you very much Daryn, my favorite brain surgeon, Sanjay Gupta.

KAGAN: He not only does brain surgery, he delivers cake.

(CROSSTALK)

TOOBIN: Thank you to Daryn, to Sanjay to all of my friends here at CNN -- look I got a little on my jacket, but that's quite all right.

SANJAY GUPTA, CNN MEDICAL ANALYST: We could not put candles because it's a fire hazard. You'll appreciate that.

TOOBIN: I appreciate that. I'll get a lawsuit going here, but I appreciate that.

KAGAN: Do you want to look into the official court records and tell us which birthday this so is.

TOOBIN: It's my 43rd birthday.

KAGAN: Forty third!

TOOBIN: You know, not a big milestone. Nobody really gives a darn.

KAGAN: We do.

TOOBIN: Obviously you, do and I'm very flattered.

KAGAN: Take the cake. Get out and do something fun.

TOOBIN: I take the cake, absolutely.

KAGAN: You do take cake. Happy birthday.

TOOBIN: Thank you both.

KAGAN: How are you going to top that. Birthday cake for Jeffrey Toobin.

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