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AT THIS HOUR WITH BERMAN AND MICHAELA

Obama Nominates Merrick Garland to Supreme Court; Mitch McConnell Talks Garland Nomination, Biden Rule; Clinton, Trump Win Big. Aired 11:30a-Noon ET

Aired March 16, 2016 - 11:30   ET

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


(APPLAUSE)

[11:30:00] JUDGE MERRICK GARLAND, NOMINATED FOR SUPREME COURT: Mr. President, this it is a great privilege to be nominated by a fellow Chicagoan. I am grateful beyond words for the honor you have bestowed upon me.

(APPLAUSE)

WOLF BLITZER, CNN ANCHOR: Merrick Garland, nominated by the president of the United States to be his Supreme Court justice, speaking very emotionally. There you see his wife and daughter in the Rose Garden. Senator Patrick Leahy and Harry Reid, the Democratic leader, going over to congratulate them.

Jeffrey Toobin, the president said he's one of America's sharpest legal minds. He's got a really strong reputation out there, doesn't he?

JEFFREY TOOBIN, CNN SENIOR LEGAL ANALYST: He really does. You know, Merrick Garland is not well-known in the United States but he's very well-known in the Washington legal community and in the broader community that follows these sorts of issues. And the one thing that you can see about this nomination is that it really does take the issue of qualifications off the table. There is certainly no one in the United States more qualified to be on the Supreme Court than Merrick Garland. The question is, politically, does he offer the president anything, in particular, as we head into this election season, and is there anything about his nomination that will get the Republicans off their position of no hearing, no vote. That seems unlikely to me. But certainly when it comes to Garland's qualifications himself, you know, it is really a close question.

JAKE TAPPER, CNN ANCHOR: And let's go to Pamela Brown now.

Pamela, as Jeffrey was just discussing, the political benefits of a Merrick Garland nomination seemed rather slim compared to all the pressure that was on President Obama to pick somebody from a minority group that might rally voters to the polls. President Obama, in the past, when asked what he's looking for, what qualification he's looking for in a Supreme Court nominee, talked about empathy. That was not cited as one of the main reasons to pick Merrick Garland today. PAMELA BROWN, CNN JUSTICE CORRESPONDENT: That's right. A lot of

people thought, Jake, the president would pick someone who can rally the base in an election year, particularly because the thinking is that the person is never going to get confirmed by the Republican-led Senate. So why not pick someone to excite the liberal base. In fact, some groups have already come out and expressed their disappointment with this pick.

But what is clear to me, Jake, is this is not about the election. This is really about President Obama's legacy. And the sense I get is that President Obama really believes that Merrick Garland has the best chance of being confirmed compared to some of the other more diverse candidates he was looking at. And as you heard in the president's speech, he really tried to play up the fact that Merrick Garland is a consensus candidate. He talked about how he was able to get other judges to agree to his legal opinions, how he's liked by both sides of the aisle, how Senator hatch has come out and praised him, how he's close to Chief Justice Roberts on the high court. That was really a focus of the president's speech.

And also, I thought it was interesting that the president focused on sort of the boot-strapping story, you know, the fact that Merrick Garland's dad had a small business in their basement and that Merrick Garland paid his way through college being a shoe clerk and how he tutored kids in elementary school here in D.C. I think, by doing that, the president is trying to appeal to this notion that he wants someone who has life experience outside of the classroom but not necessarily, Jake, the definition of empathy that maybe others were hoping for here.

TAPPER: All right. Pamela.

Wolf?

BLITZER: You know, Dana Bash, the president of the United States said it very simply, he said, I simply ask for Republicans in the Senate to give him a fair hearing and an up-or-down vote. What are the chances that it's going to happen?

[11:34:14] DANA BASH, CNN CHIEF POLITICAL CORRESPONDENT: Slim to none, closer to none. As we were watching that ceremony in the Rose Garden, our Deirdre Walsh, our producer on Capitol Hill, e-mailed out that she talked to Mitch McConnell, the Senate majority leader, in the hallway this morning and he reiterated his vow to not even meet with Merrick Garland, so never mind the hearing. The ceremonial idea of meeting with Senators and nominees, that kind of always happens. It just usually protocol. They are not even going to go there. And they've said that ever since this vacancy happened because of the argument that they makeover and over again, they simply do not believe, they say, that a president, in this heated of an election cycle, who is a lame duck, should be able to nominate somebody. So that's that.

I will say that the part of the president's -- two parts of the president's remarks that I thought were interesting, one is him sort of name-checking Orrin Hatch, who was for a time the chairman of the Judiciary Committee and did support Merrick Garland back when he was coming through for the bench that he is currently on. That obviously is an attempt to try to maybe shame Orrin Hatch into changing his mind and supporting Garland for the Supreme Court or at least urging a hearing. Unlikely that that's going to happen.

The other thing that I thought was not an accident was the president noting that the Congress is going to go on recess for two weeks starting tomorrow, meaning, if there was sort of a pop-up video there, that would be, "We're doing our job, Congress. Why aren't you doing yours?" That, I think, was very intentional and very interesting.

BOLDUAN: I want to play a clip, Dana. This is Orrin Hatch back in 1997 speaking about Merrick Garland.

(BEGIN VIDEO CLIP)

SEN. ORRIN HATCH, (R), UTAH: Based solely on his qualifications, I support the nomination of Mr. Garland and I urge my colleagues to do the same. To my knowledge, no one, absolutely no one disputes the following: Merrick Garland is highly qualified to sit on the D.C. circuit. His intelligence and his scholarship cannot be questioned.

(END VIDEO CLIP)

BOLDUAN: So that was then, Dana, but this is now. I guess things change. The president was very clear. He said, "I fulfilled my constitutional responsibility to nominate someone for the Supreme Court. Now it's up to the Senate to fulfill its constitutional responsibility to have sort of a consideration and an up-or-down vote".

But you're saying that's unlikely to happen?

BASH: That's right. And it again goes to the point that Republicans have been making since this all happened, which is, it's not about the nominee. It's about the president nominating somebody, anybody to the highest court in the land for a lifetime appointment when he is on his way out the door. And, of course, Democrats and the president himself said, like, wait a minute, I've got a whole year left here and Congress and the Senate, in particular, you do as well.

I should also note that what that also shows, that clip you just played from Orrin Hatch, is that Supreme Court nominations are always intense. There is always a big fight but they are not always highly, highly partisan. You know, even in recent history, with President Obama's nominees, you have had a lot of Republicans vote for Sotomayor, for Elena Kagan, because they have believed that it is a president's obligation and it is their opportunity to put somebody on the Supreme Court. That's what the Constitution says. But those very Senators who have voted "yes" for some Obama nominees, they are still saying that in this partisan atmosphere, with less than a year left in office, it's just not the right time for him.

TAPPER: Of course, Republicans are quick to point out that when President Obama was in the U.S. Senate, he voted against John Roberts and he voted to filibuster Samuel Alito. Douglas Brinkley, let me bring you in.

Obviously, a lot of back and forth about the historical precedence of this, whether or not Supreme Court nominees in an election year usually do get a hearing. As far as I can, there's never really been a situation exactly like this one, though.

DOUGLAS BRINKLEY, CNN LEGAL HISTORIAN: No, there hasn't been. And, yes, President Obama fulfilled his constitutional obligation of checking the box and nominating Merrick Garland, but, no, we are not going to be able to get a hearing between this spring in the middle of this volcanic election cycle. The Republicans would rather wait it out until at least November.

What will be interesting to see, can Merrick Garland sustain becoming kind of a sympathetic, almost martyr-like figure. He very well might. It's hard to argue that he shouldn't be on the Supreme Court. He's got all of the credentials. Just Oklahoma City bombing alone, which I have studied in depth, he did this extraordinary prosecution there. 168 people were killed and 680 wounded. He moved in and, in a methodical way, went after Timothy McVeigh and the others. And he's kind of a major figure in that. And also went after the Unabomber, meaning he's tough on terror. He's a brilliant legal mind. I think the Republican Party try not to smear him. They'll just ignore the fact that Obama chose him.

TAPPER: I think it's likely, Wolf,that the best chance that Merrick Garland has on getting on the court, just based on the political realities, not his qualifications, are if Hillary Clinton is the nominee or Bernie Sanders is the nominee, and wins, that between that lame-duck period, between the election and inauguration, if Merrick Garland would be confirmed, and then because Republicans in the Senate are much more fearful of the much more liberal, much more young nominee likely to come.

[11:40:11] BOLDUAN: This is a lifetime position. Presidents stay in office for four years or eight years. A Supreme Court justice can stay on the bench for 30 years, if not longer. So that individual could have an enormous impact.

I want to go to our congressional reporter, Manu Raju, up on the Hill.

You're getting more reaction. We heard Orrin Hatch and what he said back in 1997 about Merrick Garland, but now he's saying something a little bit different, right?

MANU RAJU, CNN SENIOR POLITICAL REPORTER: Right. Now he's saying that times have changed. He said that he still thinks highly of Judge Garland but he thinks, right now, as other Republicans are saying, this is not about Judge Garland and his qualifications. This is about whether or not the president, and this president, a lame-duck president is on his way out and the Senate right now should act on the nomination. He's firmly on Senator Grassley and McConnell's side on not moving forward with a nomination whatsoever.

Now, I've also learned that an outside group, the Judicial Crisis Network, a conservative outside group, will be launching a $2 million ad buy in the coming weeks. They have already gone on air to give cover to blue state Senators in tough re-election races in saying that -- praising them for standing firm against the president and also criticizing the nominee. So you're going to see sort of a two-front war for Republicans. On one front, the Republican Senators will say, we should not move forward with anyone whatsoever, let's not even debate the qualifications. And then on the outside, you're going to see some attacks about the merits of that nominee. That's the way the Republicans believe they can push back against what will be a very furious Democratic response against those Senators who are up for re- election because Democrats believe that is the one way they can get this dynamic to change if those Senators are up for re-election, and begin to cave, particularly, Chuck Grassley, of Iowa. Right now, Republicans are not showing any bend whatsoever but it will come to a head in the coming weeks -- guys?

BLITZER: It certainly will. The president of the United States will put enormous, enormous pressure on the Senate to go forward and to at least have hearings and see if there's going to be a vote.

Manu, thanks very much.

Jake, the stakes, as I said, the stakes are really enormous right now for liberal justices, for conservative justices, with the passing of Antonin Scalia. The next Supreme Court justice could swing that balance very, very significantly on a whole host of critically important issues.

TAPPER: And usually, in a presidential year, the idea of a next president will appoint one, two, three, Supreme Court justices, that's usually just a theoretical argument, but now we actually have a vacancy and it's very real. I imagine, for both conservatives, who want to talk about religious liberty, and for liberals, who want to talk about abortion rights, this is going to be a major campaign issue.

BOLDUAN: We're going to have obviously extensive coverage throughout the day here on CNN.

We're also getting a whole lot more reaction right now to what has happened here in the United States on the race for the White House. Big wins last night for Hillary Clinton, for Donald Trump. Extensive coverage on that coming up right here on CNN.

(COMMERCIAL BREAK)

[11:45:32] JOHN BERMAN, CNN ANCHOR: All right. Welcome back. I want to take you to the Senate floor right now because the Republican leader of the Senate, Majority Leader Mitch McConnell, is making a statement on the president's nomination of Merrick Garland to the Supreme Court. The Senator not happy with it. Let's listen.

SEN. MITCH MCCONNELL, (R-), SENATE MAJORITY LEADER: -- under the direction of the Supreme Court and have a profound impact on our country. So, of course, of course, the American people should have a say in the court's direction. It is the president's constitutional right to nominate a Supreme Court justice and it is the Senate's constitutional right to act as a check on a president and withhold its consent.

As Chairman Grassley and I declared weeks ago and reiterated personally to President Obama, the Senate will continue to observe the Biden Rule so that the American people have a voice in this momentous decision. The American people may well elect a president who decides to nominate Judge Garland for Senate consideration. The next president may also nominate somebody very different. Either way, our view is this: Give the people a voice in filling this vacancy.

Let me remind colleagues of what Vice President Biden said when he was chairman of the Judiciary Committee here in the Senate. Here's what he said: "It would be our pragmatic conclusion that once the political season is under way, 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," he said, "and is central to the process. Otherwise, it seems to me," Chairman Biden went on, "we will be in deep trouble as an institution. Others may threaten," he said, "that this approach would leave the court with only eight members for some time. But, as I see it," Chairman Biden said, "the cost of such a result, the need to re-argue three or four cases that will divide the justices 4-4, are quite minor compared to the cost that a nominee, the president, the Senate, and the nation would have to pay for what would assuredly be a bitter fight no matter how good a person is nominated by the president." Chairman Joe Biden.

[11:50:16] Consider that last part. Senator Biden said that the cost of the nation would be too great, no matter who the president nominates. President Obama and his allies may now try to pretend this disagreement is about a person, but as I just noted, his own vice president made it clear it's not. The Biden Rule reminds us that the decision the Senate announced weeks ago remains about a principle and not a person. About a principle and not a person.

It seems clear that President Obama made this nomination not, not with the intent of seeing the nominee confirmed, but in order to politicize it for purposes of the election, which is the type of thing then- Senate Judiciary Committee Chairman Biden was concerned about. The exact thing Chairman Biden was concerned about.

The Biden Rule underlines that the president has done with this nomination would be unfair to any nominee, and more importantly, the rule warns of the great cost the president's action could carry for our nation.

Americans are certain to hear a lot of rhetoric from the other side in the coming days, but here are the facts they should keep in mind: The current Democratic leader said the Senate is not a rubber stamp, and he noted that the Constitution does not require the Senate to give presidential nominees a vote. That's the current Democratic leader.

The incoming leader did not even wait until the final year of George W. Bush's term to essentially tell the Senate to not, he said, not, to consider any Supreme Court nominee the president sent.

The Biden Rule supports what the Senate is doing today, underlining that what we're talking about is a principle and not a person.

So here's our view. Instead of spending more time debating an issue where we can't agree, let's keep working to address the issues where we can. We just passed critical bipartisan legislation to help address the heroin and --

KATE BOLDUAN, CNN ANCHOR: "It is about a principle, not a person." You heard right there from Senate Majority Leader Mitch McConnell, reiterating essentially what was known going in this hearing from the top Senate Republican that the Senate Republicans are not, at least as of day are not going to consider the nomination of Merrick Garland to the Supreme Court. This means a lot, obviously, in the direction of the Supreme Court, in Washington and beyond, especially when you take it in the context of the presidential election.

So let's discuss this now with Mary Catherine Ham, CNN political commentator and senior writer for "The Federalist"; Barry Bennett, a senior advisor to the Donald Trump campaign, formerly Ben Caron's campaign manager; and "New York Times" columnist, Charles Blow; and Errol Louis, CNN political commentator and political anchor for Time/Warner Cable News in New York.

Mary Catherine, let me get, first, to you.

You hear that from Mitch McConnell, he's saying over and over again it's about principle, not the person. They have obviously called it the Biden Rule in order to stick it to the vice president, and why they feel strongly that this -- they feel like they're on safe ground to not consider this nomination. Are Republican voters going to buy that going forward?

MARY CATHERINE HAM, CNN POLITICAL COMMENTATOR: I think that's why Senators on the Republican side framed it that way from the beginning, so win a nomination came out, they could say safely, look, it wasn't about the person, because we said it earlier. GOP base voters certainly want them to stand strong. I think both sides can make decent arguments here, right? But as you heard Mitch McConnell making the argument, he can use the words of then-Senator Joe Biden and then- Senator, now President Obama. It's amusing to watch the two of them stand up and ask for fairness when then-Senator Obama voted to filibuster Alito. And Joe Biden pioneered one of the unprecedented, to use the president's words, methods in judicial obstruction ever. It's called Borking. It's named after the nominee who he mistreated and who was never named to the court. So welcome to your world, guys.

BERMAN: Charles Blow, the president may have a lot of reactions to what the Senate majority leader said, but surprise can't rightly be one of them. The Senate, the Republicans had telegraphed what they were going to do. The question remains what will the president do? How hard, how much is he willing to fight about this? Will he make this a daily issue for the next six months?

[11:55:09] CHARLES BLOW, COLUMNIST, NEW YORK TIMES: I think he'll make it a consistent issue. I think he'll come back to this constantly and say this person is hanging out there, you know, month three and he still has not gotten a hearing, they still have not met with him. I heard before that they weren't even going to meet with him, let alone have a vote. Not even meet with him, giving him the common courtesy. And this is a constitutional quirk. There is no timetable. Nothing says the Senate has to, within a certain period, do something. So it has always been kind of a gentlemen's agreement, this is how we're going to do it, and they're saying we're not going to do it now. And they're throwing it back onto the current administration. You heard them constantly saying over and over the Biden Rule. He's one to put it back on the administration and say, you created this, we're not doing something new, and we're going to follow this particular standard.

BOLDUAN: Yeah, you called it a gentlemen's agreement. Gentlemen, no more --

(LAUGHTER)

-- between the White House and Congress. It hasn't been for a very long time.

Let's move forward now, looking ahead after a big night last night, a very big night for Donald Trump and Hillary Clinton. Huge races with huge implications. Let's talk about that now.

Barry, big night for Team Trump. Big night for your guy. Looking in the immediate future, if I could, next week --

(CROSSTALK)

BARRY BENNETT, ADVISOR, DONALD TRUMP PRESIDENTIAL CAMPAIGN & FORMER CAMPAIGN MANAGER FOR BEN CARSON: Can't we just relish the moment?

BERMAN: No.

BOLDUAN: No relishing. It's all about looking ahead. We're all about forward motion here.

There is a debate scheduled Monday. This morning, Donald Trump said he didn't know about the debate, and he's not going to that debate. Really?

BENNETT: He's speaking to APAC on Monday night, and you can only be in one place at one time and he's choosing to speak at APAC on Monday night. I don't know why they chose Monday night for the debate. You know, bad scheduling.

BERMAN: Well -- go ahead.

BOLDUAN: Do you think it's smart, though? A lot of folks I've seen tape speeches to a PAC. Somebody could be worked out if Trump wants to show up to the debate. Do you think, one, he is truly going to stick with this and not show up? Do you think this is smart? When he did not show up for the debate in Iowa, a lot of folks say that hurt him.

BENNETT: This is the 14th debate, I think?

BOLDUAN: 13th, I believe.

BENNETT: I don't know. I lost count around 10. But anyway, I don't think it matters much, to tell you the truth. You and I have discussed this but, you know, none of these debates have moved numbers. Everybody knows who they're voting for on the Republican side these days. There's not a lot of movement. The undecideds are very small. You know, it's kind of an exercise in futility, if you will. And so, you know, I would rather hear his foreign policy speech in front of APAC very frankly.

BERMAN: Barry Bennett not impressed, not concerned about debates.

We'll mark you down in the not concerned category.

Errol, I want to turn to the Democratic race right now. Hillary Clinton at least four for four, maybe five for five, and not a lot of people saw this coming. They thought she might lose Ohio, might lose Illinois, might lose Missouri. It looks like she might win all five. What changed after Michigan? She lost Michigan. That was a giant upset. What changed? And can she carry that forward?

ERROL LOUIS, CNN POLITICAL COMMENTATOR: One thing that changed was she was greatly outspent in Michigan. The Sanders campaign put a lot of time, money and effort into Michigan, and it paid off. He does not have and did not have the resources to do something equivalent in Ohio, though he did make an earnest, hard effort.

(CROSSTALK)

LOUIS: Well, there was nowhere near. He spent multiples of the Clinton investment in Michigan. And frankly, he has a message. It doesn't sell everywhere. County by county, throughout Ohio, he had problems in like the Cleveland area. I think he only won a handful of the counties, one where you have a big university. So he has to expand his base. It's the same problem he's had for a weeks. The Clinton machine, organization is exploiting those weaknesses.

BOLDUAN: Mary Catherine, John had a great interview with Ted Cruz --

BERMAN: Thank you.

BOLDUAN: Compliments where compliments are always due.

And during that interview, Ted Cruz said basically it's time for John Kasich to get out. Listen here.

(BEGIN VIDEO CLIP)

BERMAN: Your message to Governor Kasich is get out?

SEN. TED CRUZ, (R), TEXAS & PRESIDENTIAL CANDIDATE: Well, I think any candidate if you don't have a clear path to winning it doesn't make sense to stay in the race. I would note, every day John Kasich stays in the race benefits Donald Trump.

(END VIDEO CLIP) BOLDUAN: That's not going to happen in the short term. John Kasich is in. What do the other guys not named Trump do? Cruz and Kasich, what do they do now?

HAM: Welcome to the problem that's been the problem with beating Trump the entire time, plurality, a strong support for Trump, splitting the field otherwise. Kasich had a good night last night. It was his first good night. And he does not have very many delegates. I think Ted Cruz safely makes the argument that if it's going to be a one-on-one, he should be the guy, even if the upcoming calendar is not terribly demographically friendly to him, which it's not. This also brings up another interesting --