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@THISHOUR WITH BERMAN AND MICHAELA

Establishment Republicans Strike Back; Jason Carter in Georgia Gubernatorial Election; Former Players Sue NFL; Same-Sex Marriage Ban Struck Down in Pennsylvania

Aired May 21, 2014 - 11:30   ET

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


(COMMERCIAL BREAK)

JOHN BERMAN, CNN ANCHOR: Hello there. I'm John Berman.

MICHAELA PEREIRA, CNN ANCHOR: I'm Michaela Pereira. Thank you for joining us.

BERMAN: We'll get to the big public news. The establishment strikes back. Establishment Republicans beating back insurgency within their own ranks.

PEREIRA: Primary day in six states. From Georgia to Oregon, Tea Party and anti-establishment candidates fell to moderate Republicans every single time.

BERMAN: In Kentucky, Senate minority leader, Mitch McConnell, survived a challenge from a businessman, Matt Bevin.

PEREIRA: In Georgia, Congressman Jack Kingston and Georgia Businessman David Purdue pulled ahead of a crowded field of conservatives to land in a July runoff.

BERMAN: And in Oregon, the more moderate Republican will face a Democratic Senator in November.

PEREIRA: Joining us now from Louisville, Dana Bash. Looks beautiful there.

Let's talk about this. Mitch McConnell will face a tough challenge in the fall from Democratic secretary of state, Alison Lundergan Grimes, and it sounds as though the attack ads have begun already.

DANA BASH, CNN CHIEF CONGRESSIONAL CORRESPONDENT: It's going to be a long, long, long hot summer here in Kentucky. They have begun. People here in Kentucky are already waking up to new ads opening the general election. It starts with an ad not from McConnell but from one of the several super PACs that will come in and spend millions on one another's behalf. Alison Grimes is trying to define herself to counter that. We'll play both of them for you and talk about it on the other side.

(BEGIN VIDEO CLIP)

ANNOUNCER: Liberals coast to coast are rolling out the red carpet for Alison Grimes. She's backed by Obama's biggest fundraisers and Hollywood's most liberal political activists.

ALISON LUNDERGAN GRIMES, SENATE CANDIDATE: Hi. I'm Alison Lundergan Grimes. I want to take a moment to talk to you about why I'm running for Senate. This is a frustrating time in our country. The economy is still struggling. People are working harder for less. And here in Kentucky, we feel it more than most. It seems no matter how many elections we have, nothing gets better in Washington. It only gets worse.

(END VIDEO CLIP)

BASH: She also goes on in this long ad to say that she is her own person. She is not President Obama's rubber stamp. That's something she's going to have to say over and over again because that is one of the many major themes of this incredibly important race that Mitch McConnell is making her a puppet as you saw in that not so subtle ad. She's trying to say she's not. She's independent. That matters a lot in a state where President Obama is incredibly unpopular.

BERMAN: Dana, you reported big news. A big development in the Benghazi committee in the House of Representatives. Bring us up to speed over what you learned over the last few minutes.

BASH: That's right. This is something that we've been waiting for news from the Democrats in the House. The question has been whether or not they are going to appoint the five seats, put anybody in those seats that Republicans allotted for them in this select committee to investigate Benghazi. Democrats have been having a really big struggle about whether to do that. Right now we're told that Nancy Pelosi, the Democratic leader, is leaning toward appointing those five Democrats getting them in the room and getting in as part of the investigation. She hasn't made a final decision we're told. She had a meeting with her leadership this morning and a real division about the strategy inside the Democratic ranks. It looks like they're going to go along and participate in this select committee to investigate.

BERMAN: Could make for interesting and contentious hearings.

Dana Bash, thanks for that.

An important development live from Louisville, Kentucky, this morning.

PEREIRA: Yesterday voters in Georgia will see another familiar name in the ballot this November. Jason Carter is the grandson of former President Jimmy Carter. He has been a state Senator in Georgia since 2010 and now he's running for governor.

BERMAN: Carter is a Democrat. This year he voted for a controversial bill that vastly expanded a list of places that people can carry weapons in Georgia. That list includes schools, bars and churches.

PEREIRA: Carter explained his yes vote earlier today on "New Day."

(BEGIN VIDEO CLIP)

JASON CARTER (D), CONGRESSIONAL CANDIDATE: My family has grown up in rural Georgia for many years and people believe in gun rights. What I have done throughout my time in the state Senate is to work across the aisle to improve pieces of legislation and we did it with this bill. There would have been some of the things that were most objectionable to my constituents, we got out. At the end of the day, I support those gun rights.

(END VIDEO CLIP)

PEREIRA: Let's bring in our political activist, Sally Kohn; and Republican strategist, Ana Navarro.

Sally, does it ring true what Jason Carter's explanation is?

SALLY KOHN, CNN POLITICAL COMMENTATOR: I won't second-guess Jason Carter's own personal motives. He's part of a political trend upsetting in this country. You have a large swath of voters including a majority of Republican voters who support common sense gun reforms. More Americans feel unsafe with open carry laws than safe, right? Most Americans do not support them. But you have Democrats increasingly and Republicans running to the right and playing to this sort of extremely small but very vocal right wing base in the country and especially in states like Georgia. And that's a troubling prospect.

BERMAN: I want to talk about results last night. A lot of people to be fair including CNN have been casting their results from this election as a defeat for the Tea Party. If you look back on the history of this movement back to 2009, can you make the case that they have forced the Republican Party to adopt many of their ideas and while they may have lost the battle last night, they're winning the war?

ANA NAVARRO, CNN POLITICAL COMMENTATOR: No, I can't make that case. The case I can make is that they came into being because they were against big government and they wanted fiscal responsibility and because they were worried about large government overreach and programs like Obamacare. I think once they got to Washington, the Tea Party brand and message was co-oped by some slick Washington Republican operatives and elected officials frankly who have used it to fatten up their bank accounts and to increase their profile and in the process have lost the focus of why and how the Tea Party started. I think that what they came to Washington to do was to take on incumbent Republicans and take on other Republicans as opposed to Democrats. What you saw yesterday was that Republicans mainstream Republicans decided to fight back after two years of sitting down and seeing if they could work with the Tea Party and when they fought, and they fought hard, they won. Hopefully what comes out of this is a more united Republican party.

PEREIRA: 20-second rebuttal, Sally. I see your face.

KOHN: If your goal is to try to stall government and make it ineffective, you have two choices. Take over the establishment candidates or put your own in and, OK, they didn't put their own in very effectively for very long but there's no question they've moved the Republican party and in the case of Carter and others in the Democratic party further and further to the right. That is to the credit of the Tea Party. I think it's a lasting impact they're going to have unfortunately.

BERMAN: We'll see.

(CROSSTALK)

NAVARRO: Let me tell you, I think they're going to end up being -- if they don't recover their own brand and recover from the folks who have taken it hostage in Washington, they're going to end up being like New Coke.

(LAUGHTER)

A lot of hype and it will be on the shelves for a short time.

PEREIRA: Here's hoping she's right.

BERMAN: Ana Navarro, enjoy your Twitter feed over the next several minutes.

Thank you Ana Navarro and Sally Kohn.

PEREIRA: Ahead @ THIS HOUR, former NFL players suing the league claiming they were fed painkillers illegally so they could keep playing. The question is, do former players have a case? We'll examine.

(COMMERCIAL BREAK)

PEREIRA: A group of former players is suing the NFL saying the league game them painkillers illegally to mask their injuries and keep them playing on the field.

BERMAN: The players claim the league hand the out prescription drugs lying about the extent of their injuries and they were given no warnings about the long-term effects of the drugs they were given. Former all-pro center, Jeremy Newbury, is part of this lawsuit. He says young players don't challenge NFL doctors.

(BEGIN VIDEO CLIP)

JEREMY NEWBURY, FORMER ALL-PRO CENTER: If you're a 23 or 24-year-old kid and you have a doctor that you trust and team of trainers paid by this team to take care of you, it's their job to take care of you, why would you go out and get another doctor and assume what they told you wasn't correct?

(END VIDEO CLIP)

PEREIRA: Joining us from Syracuse is Tim Green, a former NFL defensive end for the Atlanta Falcons and "The New York Times" bestselling author of 29 books including "Dark Side of the Game," latest is "New Kid."

Glad you could join us. I want to talk about this notion that Newberry was talking about. Do you think young players aren't as willing to challenge medical advice of their team doctors?

TIM GREEN, FORMER NFL PLAYER & AUTHOR: Michaela, I think that it's always been that way. Part of the culture of football -- it's not just the national football league. It's college, it's high school. You want to get back onto the field and play. You want to get there as quickly as you can. I would question doctors when I was a player, but I would never challenge them. I always presumed that what they wanted and what I wanted was in perfect alignment, which is get back on the field.

BERMAN: That's the thing here. If the players would try to get back on the field even if they were told exactly what was wrong, I had this impression a lot of doctors would say you have a broken arm. Player says great, tape it up. I want to get back out there. What's the legal liability in your mind for the NFL?

GREEN: Well, there is a couple things at play here. First of all, when you talk about legal liability, there's two standards. One is an informed consent and the other is fraud. These players are alleging fraud. Let's talk about informed consent. That's where the players' culpability comes into question. As a player, people talk about it openly in the locker room and outside of the locker room you take pride in playing with pain. I think every player has a story. Mine was when I separated my collar bone from my sternum and bone was sticking out my skin like a tent and I begged the team doctor for a shot so I could continue to play. That doctor said, no, we won't give you that shot. I think that was pretty standard as well. I saw doctors protecting players from their own desires to get out there and play. I did play by the way.

PEREIRA: We know you did. You have the warrior mentality. We, the NFL fan, are we not to blame? We like faster athletes, harder hitting. We demand this of the game. We all support -- I'm not saying to blame but we support this idea of the way the NFL has gone.

GREEN: We're all in on it. We like the big hits. We like the toughness of the players who play with pain. This suit is about something different because they are alleging fraud. They are alleging that teams knowingly withheld information or told lies about the extent of the players' injuries to perpetuate their playing. If that is the fact, if that's proven, I have no knowledge of that, if someone can prove that, now you have not only damages, you have punitive damages, which will be extraordinary if someone can prove that.

BERMAN: Thanks for bringing us back to that issue of fraud here. That's what is so stunning in this report. Players say they had broken bones and were flat out lied to about the extent of these injuries. How much do you think that actually went on? And the fact again, it's 30 years ago in some cases. If it did go on, why did players wait so long to do something about it?

GREEN: Let's talk about why you would wait so long. Any time you have a personal injury claim, you want to defend it with deep pockets. The NFL's pockets continue to get deeper and deeper. I think there was a lot of awareness of the ability to sue the league with the concussion lawsuit. I think that's why. Fraud is a whole different animal. I never saw that. You wouldn't see it because if someone lied to you and you didn't challenge it, you would never know. I don't think that ever happened. I always saw a medical staff that was responsible and that wanted you to get back on the field, yes. Wanted to enable you to play with pain if they could give you a shot or painkillers where there was an injury that wouldn't lead to further dramatic damage. Then they wanted to help you. And players, that's what you wanted to do. You wanted to play even with pain.

PEREIRA: Tim Green, we want to thank you for joining us @ THIS HOUR. We really appreciate your expertise.

BERMAN: I'll sign you up as my lawyer next time I need one.

(LAUGHTER)

PEREIRA: Still ahead, another state striking down a same-sex marriage ban. Is the momentum building nationwide and will more states follow?

(COMMERCIAL BREAK)

PEREIRA: Well, @ THIS HOUR, same-sex couples in Pennsylvania could be hearing wedding bells. A federal judge has thrown out the state's ban on same-sex weddings, saying Americans are better people than these laws represent.

BERMAN: His ruling took effect immediately. The governor there is considering an appeal but the state's attorney general has said she will not challenge. So for now, add Pennsylvania to the list of states allowing same-sex couples to wed. The entire northeast, state after state.

Our Jeffrey Toobin is here, an expert on all things legal and the courts and the Supreme Court, which matters here quite a great deal.

You look at that map and you see state after state after state now. Is it inevitable that we will soon see a nationwide ruling?

JEFFREY TOOBIN, CNN SENIOR LEGAL ANALYST: It is inevitable that the Supreme Court's going to have to deal with this sooner rather than later. I don't think it is inevitable what the result of that case will be. An amazing phenomenon. Since the Supreme Court struck down DOMA, the Defense of Marriage Act, last year, 14 judges have considered bans on same-sex marriage or recognizing same-sex marriages. All of them have struck down those bans. So clearly the federal judiciary is moving in the direction of strike down them all, but the Supreme Court has not spoken on the issue. I think the odds are at this point they will say same-sex marriage is constitutionally required but it's not a sure thing.

PEREIRA: The legal question still remaining, the infringeable right of gays to marry. Give us an idea of all ways going into that. TOOBIN: Last year, the Supreme Court had the chance to decide this very issue. They had the Proposition 8 case out of California. Instead, they said, on procedural grounds, we just don't think this case is appropriate for our review. Clearly, at least one of these many cases that are now floating through the system will go to the Supreme Court and the court will have to address the very profound fundamental issue, is does the constitution guarantee gay people, as well as straight people, the right to get married. It is very likely to come down to the vote of Anthony Kennedy. Anthony Kennedy, generally a conservative vote, has been very pro gay rights. I think, given the momentum, it seems likely he would vote in favor of same-sex marriage. I've been burned on Supreme Court predictions before.

(LAUGHTER)

BERMAN: Never you. I want to talk about the momentum in historical terms. Roe v. Wade in the early '70s, a lot of pro-abortion activists say that ruling may have forced the country into something too soon. How is it different now with gay marriage? Did Anthony Kennedy give the country a chance in a way to catch up to the Supreme Court?

TOOBIN: That may be the case. Ruth Bader Ginsburg, the famous liberal on the Supreme Court, has said often that even show they supports abortion rights, that she thought the court went too far on roe versus wade. Should have let the states go first, not rule all at once. I think what we've seen in public opinion polls, the dramatic change in support for same-sex marriage, especially among younger people, all these states voting in favor of it. So many judges ruling in favor of it. That the court will be less worried about a backlash if they rule in favor of same-sex marriage than the backlash they did suffer about abortion after Roe v. Wade.

PEREIRA: You look at the momentum going state side, you're right, probably less of a backlash --

(CROSSTALK)

TOOBIN: I think what's so striking is you have not seen much of a big backlash. You've not seen a lot of anger at the courts.

PEREIRA: Jeff Toobin, thank you.

TOOBIN: Good to see you both.

BERMAN: Coming up, it's all fun and games until someone loses part of his body.

PEREIRA: Part of his body?

BERMAN: We'll tell you how a failed attempt to throw out a base runner ended in a fight and plastic surgery for one baseball player.

(COMMERCIAL BREAK)

BERMAN: Finally, thank goodness, we get along, because, you know, not all co-workers actually do. Take Alex Guerrero. Their discussion ended up with him biting off his ear. Men are teammates on a Dodgers Minor League Baseball team. They apparently had a fight about a missed play on the field and the argument continued into the dugout, then continued on to Guerrero's ear. He reportedly needed plastic surgery. And could miss a lot of playing time this is be. There's no word yet on criminal charges.

But it makes me appreciate you more. Even when things don't do great, you've never bitten me, allegedly.

PEREIRA: I am a lover, not a biter.

That's it for us today @ THIS HOUR. He's John Berman. I'm Michaela Pereira.

"LEGAL VIEW" starts right now.