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GOP At War; Political Firestorm Over SCOTUS; George W. Bush Stumps For Jeb; Trump Blasts Jeb; Remembering Justice Antonin Scalia; Politics And The Supreme Court; An Unlikely Duo: Scalia & Ginsburg; Washington Digs In For Supreme Court Fight; Republican Rally To Block Nominee. Aired 9-10p ET

Aired February 15, 2016 - 21:00   ET


[21:00:06] DON LEMON, CNN TONIGHT HOST: This Presidents Day, it is war within the GOP.


DONALD TRUMP, (R) PRESIDENTIAL CANDIDATE: Cruz just said -- he said, I think he's an unstable person. I really do.

SEN. TED CRUZ, (R-TX) PRESIDENTIAL CANDIDATE: Have you noticed how rattled Donald gets when his numbers start going down?

JEB BUSH, (R) PRESIDENTIAL CANDIDATE: I thought it was a little strange that a front-running candidate would attack the president of the United States who did keep us safe while he was building a reality TV show.

SEN. MARCO RUBIO, (R-FL) PRESIDENTIAL CANDIDATE: Every time we call each other names, we fight, we bicker, these debates get us at each other's throats, the longer this goes on, the war is going to be.

TRUMP: Oh well roll go (ph) after you just to anything, because that means you did good well.


LEMON: It is just heating up.

This is "CNN Tonight." I'm Don Lemon.

The Republican is taking name at each other with just two days to go until the GOP presidential town hall and what the rhetoric really heating up on the campaign trail. Jeb Bush is rolling out the big guns. George W. and Laura Bush.

But in the wake of the sudden death of Justice Antonin Scalia, the big issue in this election may be the Supreme Court. And the Democrats aren't losing any time getting the GOP on that.

(BEGIN VIDEO CLIP) SEN. BERNIE SANDERS, (I-VT) DEMOCRATIC PRESIDENTIAL CANDIDATE: Well, how about obeying the constitution? And start holding hearings when President Obama nominates the next Supreme Court Justice?

HILLARY CLINTON, (D) PRESIDENTIAL CANDIDATE: The Senate has a duty to consider that. And to decide whether or not to confirm whoever the president nominates.


LEMON: There's a lot going on tonight. But I want to begin with the GOP at war and the debut of George W. Bush on the campaign trail. CNN's Jamie Gangel, Douglas Brinkley joining me this evening, good to have both of you. How are you doing?



LEMON: So, Jaime I'm going to start with you, President George W. Bush joined his brother on the campaign trail for the first time today. He took some veiled swipes at Donald Trump. Let's watch.


GEORGE W. BUSH, FMR PRESIDENT OF THE UNITED STATES OF AMERICA: Jeb is a man of humbled deep and genuine faith. Faith that reveals itself through good works, not loud words.

You can trust Jeb Bush to be measured and thoughtful on the world stage. Our enemies and allies will know that when President Jeb Bush speaks, he will follow through on his words.

There seems to be a lot of name calling going on, but I want to remind you what our good dad told me one time. Labels are for soup cans. The presidency is a serious job that requires sound judgment and good ideas.


LEMON: So, Jamie, what did you make of the former president taking aim at Donald Trump, and why now?

GANGEL: May be not so veiled? He went over and over and over about. Look, this is -- we're down to the wire here. They're going to vote on Saturday and I don't think what Donald Trump said during the debate on Saturday night was lost on former President Bush.

So he kept stressing that Jeb was serious, not loud, not the theatrics. This is the moment to come. I will say, people have said, why did they wait so long.

LEMON: Yeah.

GANGEL: In fairness, if they had come out early in the campaign, we'd probably be criticizing Jeb Bush for not being able to stand up and do it on his own. So I think that, look, the timing is they needed them now. His mother came out. His brother came out. And I think common sense dictates we may see more of this week goes on.

One interesting point, Don, that was the best speech we've seen Jeb Bush give out on the stump. So whether his brother got him fired up or whether he just -- nothing left to lose, going for it, it -- it certainly was a great event for them.

LEMON: When you since you took it there, let's go there. I was going to ask about Donald Trump, but let's stay on Jeb right now. Because you saw a different Jeb. We have another Jeb sound bite that I want to play tonight, but Douglas you saw a different Jeb out there tonight. Take a look at this.


J. BUSH: If you are tired of the politics of division, if you want someone with a proven record, a solid conservative who acted on his conservative beliefs each and every day as governor, someone with 32 years of private sector experience, then you are looking at the nominee for the Republican nomination, and I can beat Hillary Clinton. And I can promise you that.


LEMON: So Douglas, where has that Jeb Bush been?

BRINKLEY: He's been in hiding quite a bit. I mean, I think Jeb Bush had a very bad out of the gate start in the summer.

[21:05:00] I think Donald Trump discombobulated him. I think that term low energy stayed on him. He bobbled questions about his brother early in the campaign.

Today you see a Jeb Bush that's got a little bit of momentum going. I thought it was a marvelous speech by George W. Bush coming on Presidents' Day fired up the crowds a little. And I think at least, if Jeb Bush goes down in flames in South Carolina, or if his campaign starts failing he could feel his family got behind him. And indecently, Don having Laura Bush there is not a bad idea either. She's very popular with the American people. And Jeb's leading your newscast tonight, not Trump or Cruz, per se, and that's an accomplishment in its own right.

LEMON: So Douglas, do you think this could be a game changer, tonight's speech with this election?

BRINKLEY: I think he may have been too far down in the polls. It's a long way to go. And you can't really, you know, it's a lot of ground to make up between now and Saturday for Jeb Bush. He might be able to try to come in third and claim a victory by coming in third in South Carolina with Trump and Cruz slugging it out in front of him. Marco Rubio seems too faded from the discussion and Jeb might -- and Kasich has, too. So, Jeb may be feeling if he can get a third out of South Carolina and move forward from there he may be doing OK.

LEMON: Jamie, do you think South Carolina, I mean its Saturday. Is there enough time for with the Bush campaign to change things?

GANGEL: You know, the Bush campaign believes that this race is still fluid. I don't know if that's their dreaming and hoping or whether it really is. But what we saw Marco Rubio after a disastrous debate performance in New Hampshire. His numbers did plummet. So there is some room.

I think the other thing that was interesting today was Governor Nikki Haley. Everyone wants her endorsement. Her phone has been ringing off the hook. She has been undecided thus far. She has an 80 percent approval rating. I know you've interviewed here a couple of times. She's very popular. She met with former President Bush. She and her family met with him and with former First Lady Laura Bush today.

President Bush mentioned her in his speech. There is some love and some lobbying going on for Nikki Haley. And I'm not saying there is an endorsement coming. She said today she was still undecided, but if she picks Jeb Bush, that could give him a lift.

LEMON: That would, that could be a game-changer.


LEMON: And you're absolutely right. Hey, Douglas, you know, you said we weren't talking about Donald Trump. Or we didn't leave with him but I'm going to ask you about Donald Trump right now ...


LEMON: ... because he hammered Jeb Bush about not using his last name for months. He was saying, oh he was a Jeb exclamation point. He wasn't Jeb Bush today was no different. Take a listen.


TRUMP: I think that the name Bush would have been better than an exclamation point. He's Jeb Bush. Now the exclamation point didn't work. So, now he's using Bush. But I think he should he used his name.

I think it shows he wasn't proud of the family. I don't know exactly what it tells you. But I always said if that if I would tell him I said, why don't you use the name Bush? You are Bush. Use the name Bush.


LEMON: And to Jamie's point earlier it's a tightrope, when to bring the Bushes out, bring his famous family out and when not to and then using his last name. So, do you think, Douglas that this will be a game-changer for him? Will this help or hurt him?

BRINKLEY: Well, I think that Nikki Haley that you just said its very interesting, I heard Donald Trump today just discing on Governor Nikki Haley. I was sort of really complaining about on people from Syria that would be moving to South Carolina and that she's totally wrong. So the Trump camp may be sensing Governor Haley's backing of Jeb Bush coming in the coming day or two. But as for the exclamation point of Jeb, I think everybody thinks it was a mistake. But hindsight is easy. Jeb Bush was trying to be a zone man when that came out that slogan and worked for him in Florida when he ran for governor. He tried it this summer, but quickly became fodder for the late night comedians with that, I saw Colbert once have fun with him in a devastating way early in the campaign.

And, so now he's not running as Jeb exclamation point. But his running as Jeb Bush and his proud to have his brother at his back not the brother who brought us 9/11 as Trump would like it, but the brother who build our Homeland Security State or give us the patriot act who made America safer. Both Trump and Bush are now fighting over veterans in the State of South Carolina. Both used the words wounded warriors an awful lot, wanting to get those vet votes.

LEMON: A brother who is very popular in South Carolina. Douglas always a pleasure, you as well Jamie Gangel, we appreciate it, thanks.

BRINKLEY: Thank you.

LEMON: We come back as Washington prepares to do battle over the Supreme Court, I'm going to talk to a man who knew Justice Scalia better than most people. I'm going to ask him who he thinks could be the next nominee to the highest court in the land.

Plus, the GOP at war. Is this any way to run an election, and who will come out on top?


[21:12:51] LEMON: President Barack Obama ordered flags flown at half staff at the Supreme Court and other federal buildings in the wake of the sudden death of Justice Antonin Scalia on Saturday.

Meanwhile, Washington is preparing to do battle over the replacement.

Now I want to bring in CNN Senior Legal Analyst Mr. Jeffrey Toobin is here and also Bryan Garner, he's the co-author with Antonin Scalia on "Making Your Case: The Art of Persuading Judges."

Thank you for joining us, Bryan. You're doing OK?


LEMON: Really sorry for your loss. You're not only collaborated with the justice, Justice Scalia, you were also a close friends. Well, talk to me about that friendship. What was he like?

GARNER: We were together 12 days in the last three weeks. We spent 14 hours a day together in Singapore and Hong Kong. Justice Scalia was, I think, undoubtedly the most famous judge in the English speaking world. As we would walk through a mall say, in Hong Kong, he would be recognized several times. And he always wore it very lightly. If anything, he was -- he engaged in a little bit of self-mockery. But he was a humble man. And I found that in working on my two books with him.

He was very deferential to my point of view, surprisingly. I hadn't expected that at all, because 10 years ago when we began our collaboration, I did not know the man well at all and I thought he might be difficult. In fact it was quite the opposite.

LEMON: Jeffrey Toobin, you say something very similar. You said Scalia will be ranked as one of the most influential judges in American history. How exactly did he change the highest court?

JEFFREY TOOBIN, CNN SENIOR LEGAL ANALYST: Well, he brought a school of interpretation called originalism which is the idea that the constitution should be interpreted as it was understood in the 18th century. That, you know, in the 18th century, the authors didn't think anything about abortion. They didn't think anything about gay rights.

So we, in interpreting the constitution shouldn't recognize gay rights or abortion rights either. That's a very influential school. It is not necessarily triumphant. He lost a lot of these big cases.

[21:15:05] But in terms of a system of belief about the constitution, that is really widely, widely if not universally believed. Very few justices in history have brought one single handedly the way he did.

LEMON: The people may have disagree with him on some of his writing where have got or whatever he brought on that he said, that rule on things. But they say it was that the fact that he stood up for what he believed in and he had, you know, the courage to do that, they respected him for that for that.

TOOBIN: They did. I mean frankly, all the justices stand up for what they believe. And I don't think he's distinctive in that regard. I think he's distinctive because he was a beautiful writer, because he was a big personality because he dominated oral arguments at the court. He left a huge impact because of everything he did.

LEMON: He was a linchpin you say the conservative majority. What does that mean for the court now for the even to the court?

TOOBIN: Well that's means that there are four conservatives and four liberals. And that's why the fight over this seat is so intense. Because conservatives have basically dominated the court for two generations. Not winning every case but certainly as a group. If President Obama gets to have a fifth liberal put on the court, it could transform many, many things about how the court works.

LEMON: But what was he thinking? Go ahead, Bryan.

GARNER: Unless we deceive your viewers, what's he believed in mostly was a method and that was separation of powers and limited judicial power. And, so a lot of people think that the U.S. Supreme Court Justices get to decide what they believe in and make that the law.

Justice Scalia strongly believed that his own personal preferences and policy preferences should not matter. And he did believe that the constitution had a fixed meaning to be applied today to the modern world, but that it did not morph in its meaning year by year. That we did not have a continuing constitutional convention in Washington as the constitution changed its meaning without amendment.

LEMON: Bryan, you knew him like most people didn't know him. And you were very close to him. So can you tell our viewers about Justice Scalia, the family man? What was that side of him like?

GARNER: Well, he had -- he has nine children, 35 grandchildren. His nine children in all walks of life in the military, in the priesthood, in law, and an English Professor. I mean, he had a varied family. And he was absolutely devoted to them.

You know when he -- when we were in Hong Kong and Singapore, the thing he worried about every day most of all was talking to his beloved wife Maureen. He was so dedicated to her and so sorry that she didn't make the trip with us, but he was absolutely devoted as a family man. He was a very traditional man.

LEMON: Have you had the opportunity to speak with family members? And if so, how are they doing?

GARNER: I believe they are, you know, doing the best they can. I have communicated only through e-mail.

TOOBIN: You know, Don, that he was 79 years old, but so full of life and, you know, and I think it's indicative. I mean here he was going around Asia ...

LEMON: Right.

TOOBIN: ... just a couple of days ago. You know, 79-year-olds, it's not usually a total shock when they die. It was a total shock when Justice Scalia died. And all of us who knew anything about him.

LEMON: Jeffrey, what are you hearing about some of the candidates? What your sources telling you about possible nominees? There are three people who ...

TOOBIN: Think about three names ...

LEMON: ... right.

TOOBIN: ... but again, you know, this is in the realm of informed speculation, but speculation. Sri Srinivasan ...

LEMON: Right.

TOOBIN: ... a Judge in D.C. Circuit 48 years old. And Indian- American interesting personal story, grew up in Kansas.

LEMON: Jane Kelly. TOOBIN: Jane Kelly, a Circuit Court Judge from Iowa, an Associate friend of Chuck Grassley, the Chairman of the Judiciary Community. Paul Watford, a former Prosecutor, African-American from California on the 9th circuit.

All would be -- all received bipartisan support when they were nominated to the D.C. Circuit, but don't get yourself, none of these people are going to be confirmed by the Republican Senate. I mean it's going to be interesting to see how the battle plays out, but the Republicans in the Senate are not giving this seat to Barack Obama.

LEMON: Yeah, and I think they have not forgotten this, you wrote a book called "The Nine."

TOOBIN: Yes, I did.

LEMON: About the Supreme Court.

TOOBIN: Yes, I did.

LEMON: Thank you Jeffery Toobin I really appreciate it. Bryan Garner, stay with me we'll going to continue to talk with you.

When we come right back, I want to talk about Justice Scalia's legacy and what he said about that in a candid interview with CNN.


[21:23:09] LEMON: As has been discussed, Justice Antonin Scalia revered the constitution and dedicated his life to interpreting it. He talked about that and about his greatest achievements on the Supreme Court in a candid interview with Piers Morgan in 2012. Here's some of that interview.


PIERS MORGAN, CNN "PIERS MORGAN LIVE," HOST: You are a man that believes fundamentally that the law in America should be based rigidly on the letter of the constitution. That's what's you believe, isn't it, fundamentally?

ANTONIN SCALIA, FMR SUPREME COURT ASSOCIATE JUSTICE: Yes, give or take a little. Rigidly, I would not say, but it should be based on the text of the Constitution reasonably interpreted.

MORGAN: People, they criticize you for this, say a little bit constitution was phrased in a deliberately in vague way. That they realize when they framed it that in generations to come, things may change which may put a different impression on a particular piece of text.

SCALIA: Right.

MORGAN: Why are you not prepared to accept that that means you can move with the times, to evolve it? SCALIA: All right, but I do accept that, with respect to those vague terms in the Constitution such as equal protection of the laws, due process of law, cruel and unusual punishments. I fully accept that those things have to apply to new phenomena that didn't exist at the time.

What I insist upon, however, is that as to the phenomena that existed, their meaning then is the same as their meaning now, for example, the death penalty. Some of my colleagues who are not text or lister (ph) not originalist at least, believe that it's -- it somehow up to the court to decide whether the death penalty remains constitutional or not. That's not a question for me.

It's absolutely clear that whatever cruel and unusual punishments may mean with regard to future things, such as death by injection or the electric chair.

[21:25:08] It's clear that the death penalty in and of itself is not considered cruel and unusual punishment.

MORGAN: As we sit here now, what would you say your greatest achievement has been as a Supreme Court Justice?

SCALIA: Wow. I think, despite the fact that not everybody agrees with it, I think the court pays more attention to text than it used to when I first came on the court. And I like to think that I've had something to do with that.

I think the court uses much less legislative history than it used to in the past. In the '80s, two-thirds of the opinion would be discussion of the debates on the floor and the committee reports and that doesn't happen anymore. If you want to talk about individual ...

MORGAN: I mean on that point, on the legislative history point, again, critics would say you had those because you're such a constitutionalist and always go become to the way they framed the constitution, and so on, they debated all of that. I mean that is in its way legislative history, isn't it?

SCALIA: What is? What is? What is?

MORGAN: The framing of the constitution.

SCALIA: The federalist papers?

MORGAN: The framing of amendments and so on. What's the difference really?

SCALIA: Well I don't use the Madison's Notes as authoritative on the meaning of the constitution. And I don't use that. I use the federalist papers, but not because they were the writers of the federalist papers were present.

I mean one of them wasn't. John J. was not present at the framing. I use them because they were intelligent people of the time and, therefore, what they thought this language meant was likely what it meant.

MORGAN: Why do you have such faith in those politicians at that time? You know, I mean, these days, if the current crop of politicians created some new constitution, people wouldn't have the faith that young, burning, unflinching faith.

Why are you so convinced that these guys over 200 years ago were so right?

SCALIA: You have to read the federalist papers to answer that question. I don't think anybody in the current Congress could write even one of those numbers. These men were very, very thoughtful.

I truly believe that there are times in history when a genius bursts forth at some part of the globe, you know, like 2000 BC., in Athens or Cuenca Gentle Florence for Art (ph). And I think one of those places was 18th Century America for Political Science, you know, what Madison said that he told the people assembled at the convention. Gentlemen, we are engaged in the new science of government. Nobody had ever tried to design a government scientifically before. They were brilliant men. And.

MORGAN: I think we have few on that?

SCALIA: I wish we had a few of them now? And I certainly do not favor tinkering with what they put together.


LEMON: I want to bring back Justice Scalia's friend and co-author Bryan Garner. Bryan, it has to -- I don't know. What does it do when you sit and listen to that?

GARNER: Well, it's moving and, you know, I was speaking to him just last Wednesday, and so it's hardly -- something he called me Wednesday morning and he said to me, I didn't even know what he was talking about, before he said, Bryan, the world of tennis has lost a great competitor.

And, then he told me that he would never play tennis again. He had hurt his right shoulder. And in fact, I had been helping him exercise his right shoulder. I told him that maybe I had been making it worse because it was a torn rotator cuff instead of a frozen shoulder that we thought it was.

But he said, Bryan, I will have to live without playing tennis for the rest of my life, but I think I can live with that. Little did I know that the rest of his life would be 36 hours.

LEMON: So sorry about that. What is that like to hear him talk about his own legacy?

GARNER: Well, I believe that he had it exactly right, that the courts in this country, not just the United States Supreme Court, but all the Federal Courts and the State Courts, pay much closer heed to statutory text and to constitutional text than they once did. There was a period in which so-called consequentialism and purposivism were very much in vogue.

[21:30:09] Let's not pay too much attention to the grammar here. Let's not pay too much attention to the words and get caught up in the words. We can go around or behind the text, if necessary, to get to the best policy.

Justice Scalia believed strongly that any good judge should not infrequently end up with a decision that the judge thought to be unwise policy. And it for in fact, Thurgood Marshall said very much the same thing, that if the -- if Congress wants a foolish policy, then they get a foolish policy. That's not to say absurd. If there's a truly absurd, some sort of unconscious absurdity, it's just caused by accident, then, of course, the courts can reform that.

But if it's simply a policy that the judge thinks unwise, the judge should not be imbuing the statute essentially amending the statute by adding or subtracting words that sort of thing.

LEMON: But Bryan, we're going to talk more so stay with me, please.

When we come back I want to talk about what Justice Scalia had to say about American politics.


[21:35:02] LEMON: Justice Scalia was a constitutional scholar who didn't just look to the past. He also had a lot to say about American politics today. There's more from his interview with CNN's Piers Morgan.


MORGAN: Let's turn to political fund-raising which, at the moment, under your interpretation, I believe, of the constitution, you should be allowed to raise money for a political party.

The problem as I see it and many critics see, isn't that has no limitation to it. So what you've now got are the Super PACs funded by billionaires effectively trying to buy elections. So that cannot be what the founding fathers intended.

Thomas Jefferson didn't sit there constructing something which was going to be abused in that kind of way. I do think it's been abused. Don't you?

SCALIA: No. I think Thomas Jefferson would have said the more speech, the better. That's what the First Amendment is all about, so long as the people know where the speech is coming from.

MORGAN: But it's not speech when the first -- it's also about money. The back-up.

SCALIA: You can't separate speech from the money that facilitates the speech. MORGAN: Can't you?

SCALIA: It's utterly impossible. Could you tell newspaper publishers, you can only spend so much money in the publication of your newspaper? Would they not say this is abridging my speech?

MORGAN: Yeah, but newspaper publishers aren't buying elections. I mean, the election of a president, as you know, that if anybody else, you serve many of them.

It's an incredibly important thing. We shouldn't be susceptible to the highest bidder. Should it?

SCALIA: Newspapers endorse political candidates all the time. They mean, they're almost in the business of doing that.


SCALIA: And are you going to limit the amount of money they can spend on it? Surely not.

MORGAN: Do you think perhaps they should be?

SCALIA: Oh, I certainly think not. I think -- as I think the framers thought that the more speech, the better. Now, you are entitled to know where the speech is coming from. You know, information as to who contributed what, that's something else.

MORGAN: Justice Scalia, you have very strong opinions about this at the time. I know you do now. Why are you so violently opposed to it?

SCALIA: I wouldn't say violently. I'm a peaceful man. Adamantly opposed.

MORGAN: Adamantly.

SCALIA: Basically because the theory that was expounded to impose that decision was a theory that does not make any sense. And that is, namely, the theory of substantive due process. There's a due process clause in the constitution which says that, "No person shall be deprived of life, liberty or property without due process." That is obviously a guarantee, not of life, not of liberty, not of property. You can be deprived of all of them but not without due process.

My court in recent years has invented what is called substantive due process by simply saying some liberties are so important that no process would suffice to take them away. And that was a theory used in Roe versus Wade. It's a theory that is simply a lie. The world is divided into substance and procedure.

MORGAN: Should abortion be illegal in your eyes?

SCALIA: Should it be illegal? I don't have public views on what should be illegal and what shouldn't. My view is regardless of whether you think prohibiting abortion is good or whether you think prohibiting abortion is bad, regardless of how you come out on that. My only point is, the constitution does not say anything about it. It leaves it up to Democratic choice. Some states prohibited it. Some states didn't.

What Roe versus Wade said was that no state can prohibit it. That is simply not in the constitution. It was one of those many things, most things in the world left to Democratic choice. And the court does not do democracy a favor when it takes an issue out of Democratic choice.

MORGAN: What has been your hardest decision do you think?

SCALIA: My hardest?


SCALIA: You don't want to know.

MORGAN: I do want to know.

SCALIA: No. It's the dullest case imaginable. There is no necessary correlation between the difficulty of a decision and its importance. Some of the most insignificant cases have been the hardest.

MORGAN: What has been the one that you ...

SCALIA: It probably be a patent case. You want me to describe it, really?


SCALIA: Of course.

MORGAN: Well, what has been in your view the most contentious? What's the one that most people asked you about?

SCALIA: Contentious? Well, I guess the one that, you know, created most waves of disagreement was Bush versus Gore. OK.

[21:40:01] That comes up all the time and my usual response is, "Get over it."

MORGAN: Get over the possible corruption of the American presidents. Justice Scalia.

SCALIA: Look at I -- my court didn't bring the case into the court. It was brought into the courts by Al Gore. He is the one who wanted courts to decide the question and when Richard Nixon thought that he had lost the election because of chicanery in Chicago, he chose not to bring it into the courts.

But I'll go one of the courts who decided, so the only question in Bush versus Gore was whether the presidency would be decided by the Florida Supreme Court or by the United States Supreme Court. That was the only question, and that's not a hard one.

MORGAN: No regrets? SCALIA: Oh no regrets at all, especially since it's clear that the thing would have ended up the same way anyway the press did extensive research into what would have happened if what Al Gore wanted done had been done county by county, and he would have lost anyway.


LEMON: Interesting, I'm back now with Justice Scalia's friend and co- author Bryan Garner. And Bryan, his absence is likely to impact some of the courts major decisions that he does, you heard him talking about Bush versus Gore there.

How would he feel about that?

GARNER: I think he would feel very regretful about that. Just the fact that there is now an incomplete court, but what you've just heard it was a very good example of his deft analysis. And as smart as Piers Morgan may be, he was no match for Antonin Scalia in that dialect that that you just heard.

LEMON: He believed that no justice's vote was politically motivated? What would he say in your estimation about the political fight over who would replace him?

GARNER: Well, he was a deep believer in democracy. And the whole thing about Citizens United, for example, is, the idea that merely pouring money into campaigns is manipulating, completely manipulating elections and that you can -- the people cannot be trusted to deal with the speech they hear is quite an argument.

I think, an anti-democratic argument. What would he think about the fight to -- that looms for replacing him?

LEMON: Yes, sir.

GARNER: Well, I think -- I think he would probably listen to the kind of analysis that Jeffrey Toobin has given and people are saying, well, the Republicans are going to do this, and the president is going to do that and the democrats are going to do this.

And he would probably understand each side and say, yes, that probably is what's going to happen.

LEMON: Justice Scalia ...

GARNER: In other words, I think the prognostications about the stances that the two sides are going to take. Those that they're probably correct, and -- but it's difficult to prognosticate and say, well, we're going to have a stalemate but then not all gridlock is bad.

LEMON: I want to ask you about Justice Scalia and Justice Ginsburg they were self-described best buds, what drew them together? How did that happen?

GARNER: Justice Ginsburg is my oldest friend on the court. I've known her longer than anyone else she's just a wonderful person. You can see why anybody would be drawn to her.

But I think their early days as judges on the D.C. circuit, they became very close and who's to say why two people become friends? That they are both extraordinary people and I think it's a sterling example of how people can be devoted to each other, even though they have very different ideologies or views of the proper methods for judging.

LEMON: Bryan garner, thank you so much. It's an honor to have you on.

GARNER: Thank you, Don.

LEMON: We have two unique two-night event, I should say on CNN this week, for the very first time in this campaign, all six Republican presidential candidates, all six of them will answer questions from the voters of South Carolina.

It is our live televised town hall, it is moderated by Anderson Cooper and seen only on CNN. This Wednesday and Thursday night, beginning at 8:00 Eastern.

[21:45:00] Ben Carson, Marco Rubio and Ted Cruz kick off the night on Wednesday. Then John Kasich, Jeb Bush and Donald Trump filled questions from voters Thursday night. Don't miss the CNN GOP Presidential Town hall, a live two-night event Wednesday and Thursday at 8:00 right here on CNN.

And when we come right back, what will the sudden death of Justice Scalia due to the balance of power on the Supreme Court and what about his replacement?


LEMON: Well, you know, the crucial question in Washington in this tonight, who will replace Justice Antonin Scalia and what will happen to the balance of power on the highest court in the land?

Let's discuss now with Alan Dershowitz, with the author of, "Taking the Stand, my life and the law", and George Terwilliger who was Deputy Attorney General under President George H.W. Bush.

Thank you gentlemen for joining me tonight. Alan, to you first, before we get into this nitty-gritty about what these means for the courts.

You knew Justice Scalia, personally. You like each other. But, I imagine you guys disagreed on a whole host of issues. Any stories you want to share with us?

ALAN DERSHOWITZ, DEFENSE ATTORNEY: Well, we never had a conversation that didn't include an argument except when we talked about his father.

I knew his father. He was a professor at Brooklyn College when I was a student there. But we argued about everything and he wrote me a letter some years ago in which he said that some day, before both of us become senile, he would like to sit down with me and persuade me that his vote in the Bush versus Gore was correct.

I'd written critically about it in my book, "Supreme Injustice".

So, he came and helped me teach my class in Criminal Law at Harvard we debated. In Israel, we debated in the United States.

We have this wonderful feisty relationship. He wrote a blurb from my book "Taking the Stand" in which he said, "You know, you're not as nasty as some of my right wing friends believe."

It was that kind of relationship. I will really miss him both personally and professionally.

LEMON: George, so, what's next do you think for the quarter? Are they going to move ahead or could we see a delay in their schedule with just eight justices

GEORGE TERWILLIGER, DEPUTY ATTORNEY GENERAL UNDER PRES. GEORGE H.W. BUSH: No, I mean, the court will certainly move ahead. John Roberts, I think, has shown conclusively that one of his most important objectives is protecting the court as an institution.

[21:50:11] And I'm sure, he'll want to demonstrate that the court can move ahead. Whether in some cases are put off and submitted for re- argument when the court is at full strength is probably a question that is worth asking, but we'll only know when the court makes that decision.

LEMON: All right. Alan, this is for you, Ted Cruz, Marco Rubio, they're all saying it should be the next president who should nominate the next justice. Ted Cruz first. Listen.


CRUZ: One more liberal justice and we will see our constitutional rights swept aside at a level never before seen in the history of this country.

We're one justice away from the Supreme Court mandating abortion on demand with no limits up to the moment of delivery partial birth with tax payer funding and no (inaudible).

Striking down every state restriction on abortion we have. We are one justice away from the Supreme Court effectively reading the Second Amendment out of the constitution.


LEMON: So, Alen, with so many key cases on the docket this year from affirmative action, immigration. What happens to those?

DERSHOWITZ: Well, first of all, Ted Cruz, who was my student should go back and study the constitution.

He's doing exactly the opposite of what he accuses others of doing. He's being result to react it.

The constitution says the president, doesn't say lame duck. It doesn't say -- it says the president shall nominate with the advising in senator Senate, appoint Supreme Court justices.

So, you know, Cruz is saying that the president doesn't have that authority or Congress should stop him from exercising that authority.

The president has two options. He can try to get a liberal like the two he previously appointed.

They will be rejected, of course, and then that can become a political issue in the campaign.

He may pick that course. That would be a mistake. The second is to try to find a moderate, somebody who may have been appointed previously by President Bush or by a Republican, somebody who has moderate views.

Perhaps, somebody who represents an ethnic group that is never been on the Supreme Court, say, Asian-Americans.

And make it hard for the Republicans to turn that person down. I think that's the course that President Obama will follow. And I think that's the wise course and the constitutional course.

LEMON: Yeah. So, what do you think of that, George? What do you think should happen soon or should it wait for the next president?

TERWILLIGER: Well, regardless of what I think will happen. I think it is going to wait for the next president.

Look, it's very easy to analyze this if we just reverse the situation and the majority leader is Harry Reid and the president is a Republican and there's a slot to be filled this late in the second term.

Harry Reid would never let that vote take place. And if it ever did come to a vote, he would be rejected.

LEMON: Do you agree? Alan, you said, you do it, right.

DERSHOWITZ: I agree with that. I think there's hypocrisy on both sides. I think there's hypocrisy on both sides.

I think the Democrats have made their position much harder because they've done similar things in the past, and I think neither party should try to impose their will on who gets nominated except through the advice and consent of the Senate.

And so, because one side has been hypocritical doesn't mean the other side should be.

I agree with you. Predictably, this is probably what's going to happen, but it shouldn't happen.

I think the president can make it much harder on the Republicans if he would to nominate the person of the kind, I just described.

The moderate who was perhaps appointed and confirmed by Republicans in the past, that will make it much harder to do. But I agree with you.

I think the cynicism in Washington, what's going on today with the hypocrisy on both sides makes it hard for the constitution to be followed. And that's a great tragedy.

LEMON: Speaking of that hypocrisy on both sides, I'll let you respond George. Let's listen to Chuck Schumer last time, this something like this happened. Not the same thing that like. Let's listen.


SEN. CHUCK SCHUMER, (D) NEW YORK: We cannot afford to see Justice Stephens replaced by another Roberts or Justice Ginsburg by another leader (ph).

Given the track record of this president and the experience of obfuscation at hearings, with respect to the Supreme Court, at least, I will recommend to my colleagues that we should not confirm any Bush nominee to the Supreme Court except in extraordinary circumstances.


LEMON: That was 2007, it wasn't actually 2013. What do you make of that, George?

TERWILLIGER: Well, I think it illustrates the point that Alan and I do agree on.

I think what we don't agree on is I wouldn't term it hypocrisy. I would term it politics. And there is a principled reason behind this. The Republicans are saying we're very close to a very important presidential election.

In fact, the presidential election that is perhaps unlike any other in the last hundred years and that the people ought to have a voice in who is selected through the president that they decide to elect.

[21:55:11] LEMON: Are they taking a chance? I've got to run here Alan, I wonder if Republicans are taking the chance because let's just say a Democrat does get into the White House and, you know, in November.

So, then, are they taking a chance so that a Democrat will then nominate someone who was way more liberal than they would have gotten through this time?

DERSHOWITZ: Of course. And it depends on who is elected in the Senate. And of course, this becomes a political issue. I can imagine Democratic candidates getting after and saying, do you want to preserve your daughter's right to have an abortion? Your friend's right to be married if he is gay. Vote for the Democrats.

This is going to be the first election in modern times, certainly since the new deal, where a Supreme Court appointment may be a central point in the election of president.

And that's unusual, and, you know, the people may well get to decide. And of course, if the president where to appoint the moderate and kind of split the difference, I think it would help bring the country together.

But, unlikely that that's going to happen. Unlikely, the Republicans would allow it to happen. We live in a parties in age and the parties in age is affected the Supreme Court and that's a tragedy.

LEMON: Alan, thank you very much. George, I appreciate you as well.

We have a unique two night event on CNN this week for the very first time in this campaign. All six Republican presidential candidates answer questions from the voters in South Carolina.

It's our live televised town hall, moderated by Anderson Cooper and seen only the CNN this Wednesday and Thursday night beginning at 8:00.

Ben Carson, Marco Rubio, Ted Cruz, take off Wednesday night, then John Kasich, Jeb Bush and Donald Trump fill questions from voters, Thursday night. And this is CNN GOP Presidential Town Hall, a live two night event Wednesday and Thursday beginning at 8:00 right here on CNN.

When we come right back, the GOP at war and the battle in Washington is over the Supreme Court. Who is going to replace him?

What will it all mean in November?