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Fight Over Trump's Supreme Court Nominee; Defending the Ban. Aired 4-4:30a ET

Aired February 1, 2017 - 04:00   ET


[04:00:19] JOHN BERMAN, CNN ANCHOR: First, the pick, now, the politics. New reaction overnight to the president's nominee for the Supreme Court. Republicans rejoice, Democrats, ready for battle.

CHRISTINE ROMAN, CNN ANCHOR: Despite the growing criticism, the White House defending it's rollout of the travel ban. But in another twist, the White House isn't even committed to the idea that the travel ban is a ban. Oh, the controversy over three little letters.

Good morning, and welcome to EARLY START. I'm Christine Romans.

BERMAN: I'm John Berman. Nice to see you today. It is Wednesday, February 1st, 4:00 a.m. in the East.

In a season of political showdown, this could be the biggest yet in terms of generational impact, and the heat it has already generated.

Overnight, President Trump announced his pick to fill the Supreme Court vacancy. Neil Gorsuch, federal appeals court judge from Colorado. Republicans on Capitol Hill, and really across the nation, they're ecstatic. Gorsuch was known as the constitutionalist. He was part of the so-called Hobby Lobby decision, ruling companies could avoid paying for contraception, citing religious objections.

He is just 49 years old. He'd be the youngest member of the court, which means he would possibly serve for decades.

ROMANS: Democrats still seething over Republicans' deep freeze of President Obama's high court nominee Merrick Garland, calling it a nomination to a stolen seat. Democrats were quick to pounce on Gorsuch, slamming him as outside the mainstream although they did not commit to a filibuster.

Facing a tough fight, Gorsuch and president appealed for the Senate to fulfill its constitutional role.


NEIL GORSUCH, SUPREME COURT NOMINEE: As this process now moves to the Senate, I look forward with speaking with members from both sides of the aisle, to answering their questions and to hearing their concerns.

DONALD TRUMP, PRESIDENT OF THE UNITED STATES: I only hope that both Democrats and Republicans can come together, for once, for the good of the country.


ROMANS: All right. Judge Gorsuch, his first courtesy calls to senators begin in just hours.

For the latest, let's bring in CNN's justice reporter Laura Jarrett live for us bright and early this morning from Washington.

Good morning.


Well, as the president mentioned in his remarks last night, Neil Gorsuch has an impressive resume and academic background. He's got degrees from Columbia, Harvard Law School and Oxford. Now, he spent his teenage years here in the Washington, D.C. area. And incidentally, his mom was the first woman to ahead the Environmental Protection Agency. He clerked on the Supreme Court for two justices. He worked both in private practice and the government before becoming a judge himself.

His judicial philosophy is not a secret. He's described as predictively socially conservative, much like in the mold of the late Justice Scalia. He believes in following an original interpretation of the Constitution.

Interestingly, he also had some very strong views against assisted suicide and wrote a book in 2009 arguing that the taking of a human life is always wrong.

On the opinion front, he was one of the judges, as you mentioned, in the Hobby Lobby decision where the 10th Circuit ruled that corporations can refuse to cover birth control as part of their employees' health insurance plans. That ruling was held by the Supreme Court.

He was somewhat of a sleeper choice until recently. He wasn't even on the original list that Trump put out last May, but in several days, the recent days, we heard he was rising to the top.

ROMANS: What is likelihood, Laura, of him getting confirmed at this point? What's the next step here?

JARRETT: Well, he sailed through his Senate confirmation 2006 when President Bush nominated him to the federal bench. But times are different now, and Senate Democrats have promised payback for the Republicans' refusal to even grant a hearing for Judge Merrick Garland, President Obama's pick for Justice Scalia's seat. And while Republicans do enjoy a majority of seats in the seat, they'd need to pick off at least eight Democratic votes in order to get to that 60- vote threshold to clear procedural hurdles.

On the other hand, it's Justice Scalia's seat. It's not a swing vote like Justice Kennedy or one of the progressives, like Justice Ginsburg. And so, some say, you know, putting Judge Gorsuch on can just restores court to its previous ideological balance. So, the real fight might be down the line with a second nominee.

ROMANS: Second nomine. All right, Laura. Thank you so much. Nice to see you, bright and early this morning.

We've got very big news on the president's SCOTUS pick.

BERMAN: It doesn't get any bigger. When you're talking about generations, we're also talking about a seat that's been empty for nearly a year which means -- oh, man, get ready for some politics.

Let's discuss the nomination with former federal prosecutor for the middle district of Georgia, Michael Moore, who was appointed by President Obama, live for us, Michael is, in Atlanta today.

[04:05:06] And I feel like I've spoken to you three times over the last days because I --

ROMANS: Because you have.

BERMAN: I practically had.

MICHAEL MOORE, FORMER FEDERAL PROSECUTOR: We had talked a lot. Yes. It's good to see you this morning.

BERMAN: So, when you're talking about Neil Gorsuch as a judge, it doesn't seem that anyone is questioning the strength of his legal mind?

MOORE: No, I think that's right. I don't think there's any question that lease qualified. Some of his opinions are well written. I don't know we're in a situation where anybody would test his qualifications. I think this really boils down to politics and more -- some ideological moves based on decisions he's written. For instance, the Hobby Lobby case.

ROMANS: Tell us a little bit about his philosophy, his consistent conservatism on social issues.

MOORE: You know, it's said that he really does fit in the Scalia mode. He's an ardent textualist. In other words, he believes that words matter. He believes that the meaning of the words matter and that therefore have purpose.

I will say this, and I found this interesting as I was sort of considered his nomination. Back in his confirmation hearing for the circuit in 2006, this would be in the summer of 2006, Senator Graham asked him, how do you fit in sort of with judicial philosophy?

Judge Gorsuch came out and said, look, I really don't want to be pigeonholed. I think that's a mistake that people make by pigeonholing themselves in one place or another. And when they do that, they miss the gray areas of the law. And gave a little warning that people can be different and people can change maybe than what we originally thought they may be.

So, I think it's clear he's going to be a conservative vote. I think you can look at his writings in the areas of assisted suicide and see that he has views on sanctity of life. I think you can look at his decision that he wrote the concurrence in Hobby Lobby and see that he's going to give a lot of religious preference in his decisions. But again, I go back to 2006, where he says don't pigeonhole people, be careful, because they can change a little bit. Certainly, we've seen that in the court in the past with people like Justice Souter.

BERMAN: Now, Michael, I suppose where you stand on politics of this depends on where you sit, which side of the aisle you sit on, because as you were saying, you can question the legal thinking or the quality of the mind of Neil Gorsuch, I think probably the same can be said of Merrick Garland nominated by President Obama nearly a year ago. And for whom Senate Republicans would not even hold a hearing.

So, there really could be a political battle here. It depends if Democrats think two wrongs don't make a right. Or if they take the philosophy what goes around comes around.

MOORE: Well, I think that's a good point. I think the Democrats need to be careful and they might get too smart by half and overstep. I don't think there's any question that Judge Garland was mistreated. I think he was treated poorly and he deserved a vote. He'd been nominated by the president. And I think he was mistreated and treated poorly.

However, I think that using the Gorsuch nomination as a way to just get back for how Merrick Garland was treated may be a mistake. If, in fact, we pushed the Senate Republicans invoke the nuclear option, that's -- we're stuck with that. And that means that bar is lowered from probably from now on when we look at other Supreme Court nominees.

I hope the Democrats what they'll be thinking about, not just the Gorsuch nomination but what's likely to happen down the road and what happens with the next seat that becomes available on the court.

ROMANS: That's a really good point, you know, because, you know, Judge Gorsuch, he clerked for Anthony Kennedy. And could it be, I don't know, maybe a green light for Gorsuch, maybe we're talking about a Kennedy retirement down the road, maybe there will be other picks here for this president soon.

MOORE: Well, I do think that's insightful when you say that because that's something that Democrats need to think about. Gorsuch will be really the first former clerk to come back and sit on the clerk there actively. He was a clerk for White and Kennedy.

Kennedy may see this as a time to say, look, you know, I've done my time, I'm comfortable with the replacement or with the court, the makeup is now because he was fond of Gorsuch by all accounts. I think it could in fact give a green light or make him feel better about retiring. That's, obviously, it's going to be that seat or a second seat that really does the have a chance to change the face of the court.

BERMAN: Michael Moore, great to see you again this morning. Appreciate your time and your insight, sir.

MOORE: Glad to be with you, thanks so much.

ROMANS: All right. Days of fallout over that travel ban has the White House on the defensive, even claiming the travel ban isn't really a ban at all -- even though the president tweets about it calling it a ban. We've got more on these three complicated letters next.


[04:13:55] BERMAN: This morning, the Trump administration is defending the rollout of its controversial travel and refugee ban which they are now saying is not a ban but that's a whole different story. The new secretary of homeland security, John Kelly, insists that he and his staff were involved in crafting the measure, but CNN has learned the department only got to see the final draft of the ban the day it was signed.

I want to bring in CNN politics reporter Dan Merica, live from Washington.

Dan, you know, it was interesting. John Kelly, the new secretary of homeland security, held a press conference yesterday, clearly the administration is trying to turn the Titanic here, turn the ship around, get ahead of this message. But they can't even really agree on what the words of that message would be.

DAN MERICA, CNN POLITICS REPORTER: That's exactly right. John Kelly said flat out he was involved in the drafting of this. Our reporting says something differently, and House Republicans, members of Trump's own party, even said that the ban which caused chaos at airports across the country was bungled. The rollout of the ban was bungled.

Yet this comes as the White House and Sean Spicer, White House press secretary, are even quibbling over whether to call it a ban.

[04:15:00] Let's take a listen to what he said yesterday at the briefing.


REPORTER: You say it's not a ban. This was President Trump's tweet yesterday, "If the ban were announced with a one-week notice, the bad were rush in to our country during that week." He says it's a ban.

SEAN SPICER, WHITE HOUSE PRESS SECRETARY: He's using the words that the media is using. But at the end of the day, it can't -- hold on, hold on, hold on. It can't be, it can't be --

REPORTER: Those are his words.

SPICER: Jonathan, thanks, I'll let Kristen talk. It can't be a ban if you're letting 1 million people in. If 325,000 people from another country can't come in, that is by nature not a ban. It is extreme vetting. REPORTER: I understand your point. But the president itself called it a ban.

SPICER: I understand.

REPORTER: Are you confused or --

SPICER: No, I'm not confused. I think the words that are being used to describe it derive from what the media is calling it. He's been very clear that it's extreme vetting.


MERICA: Here's the thing, though, I think a few dictionary will quibble with not calling it a ban, even though a lot of people are let in. Secondly, Sean Spicer himself has called a man multiple times in interviews and events, now, this comes as Donald Trump changed the discussion and nominated his Supreme Court nominee yesterday. He'll meet with Supreme Court interest groups at 11:30 today.

One place he won't go is Milwaukee. Our reporting was that he was supposed to do an event at a Harley-Davidson event in Milwaukee. That event has been cancelled. One source tells CNN that's because of planned protests. But the Harley Davidson spokesperson says that there was no event ever scheduled. So, debate over whether he was even going to Milwaukee in the first place.

BERMAN: You know, the rests are saying this is proof that protesters around the country are working. They saying if they can get the president to change his plans, you can see the effect.

Dan Merica, a lot of great information. Great to have you this morning. Thanks, Dan.

MERICA: Thanks.

ROMANS: Harley Davidson hosted a lot of presidents before. They hope to host him --

BERMAN: I've been there with presidents.


BERMAN: They make the motorcycles in the U.S. People love to travel there.

ROMANS: It's a beautiful manufacturing live shot picture there.

All right. For the second time in two weeks, Facebook chief operating officer Sheryl Sandberg is criticizing President Trump's policies. This time, she's condemning the travel ban as particularly unforgiving for women.

In a Facebook post, Sandberg says, quote, "The executive orders issued over the past week defy the heart and values that define the best of our nation. Families have been separated. Frightened children have been detained in airports without their parents. People seeking receive refuge have been turned away and are sent back to danger they just managed to flee. This is not how it should be in America."

She says denying those fleeing violence and oppression in other countries is un-American. She talks about her great-grandmother who fled Lithuania because of religious persecution, arriving on Ellis Island in 1889. Last week, Sandberg slammed the president's reinstatement of the global gag rule, known as the gag rule. That blocks nongovernmental organizations, NGOs from around the world from receiving USAID if they perform abortions or discuss them in family planning.

And she says -- very early in her career, she worked for the World Bank and she was very upset by that, because she said, just having that suite of family planning available for poor women around the world saves lives.

BERMAN: I've got to say, you've seen business leaders be way more political across the board. I remember many different issues just the last 12 days.

ROMANS: I wrote a piece on about values. Not shareholder values but other values that companies keep talking about. You keep hearing them talk about values, so many of these CEOs from so many different kinds of companies. It's the first time I've heard them talk so little about making money and so much about making the world better.

BERMAN: All right. Democrats go to new lengths to prevent the confirmation vote for two of the president's cabinet nominees. We're going to tell you these new measures that they're taking.


[04:23:16] ROMANS: Two of President Trump's key cabinet picks are being blocked by Democratic boycott. That has Republicans in an uproar. Finance committee votes for Tom Price and Steve Mnuchin, the nominees for health and human services and treasury. They're now on hold after Democrats, they refused to show up for their hearings.

Committee Chairman Orrin Hatch described that tactic as pathetic and amazingly stupid, calling the Democrats involved as idiots.

BERMAN: Don't mince words there.

ROMANS: Words you're not allowed to say in third grade.

Rules require at least one Democrat to be present for a committee vote to move forward. That means that the president may have to resort to a recess appointment so his nominees can serve without Senate approval.

BERMAN: All right. The nomination of Senator Jeff Sessions to be attorney general has also been slowed down by Democrats. They used a procedural move to delay Tuesday's vote until later today. Senator Sessions is coming under increased scrutiny in the wake of President Trump's travel and refugee ban. And Senator Sessions denies Democratic accusations that he may have had a role in crafting this. One of his former staffers, many of his former staffers seemed to have been involved.

Also today, the full Senate is scheduled to take up the nomination of Secretary of State nominee Rex Tillerson. Now, he is expected, after all of the discussion back and forth on him, it's likely he will be confirmed. The vote may be narrow, but he will be, we all think, the next secretary of state.

ROMANS: All right. Betsy DeVos the president's pick for education secretary has been narrowly approved by a Senate committee. The 12 to 11 vote along party lines means the nomination will now go before the full Senate. DeVos could be facing, still facing a battle now that accusations of plagiarism are surfacing.

In a questionnaire DeVos filled out for senator, the responses about the bullying of LGBT students and Title 9 complaints, well, her statements mirror almost word for word other sources. In the other case, it's a writing of an Obama official in the civil rights division of the Justice Department.

[04:25:03] In the other case, the language appears copied from the Education Department's website. It's not clear whether DeVos or members of her staff wrote those answers.

The White House calls the plagiarism accusation against DeVos a character assassination.

BERMAN: The political battles, they are shifting this morning now that the president has named a Supreme Court nominee. Does this mean there will be less of a focus on the travel ban?

Stick around.


ROMANS: Political showdown, igniting over the vacancy on the Supreme Court. With President Trump's nominee public, Democrats gearing up for a battle to protect the seat they believe was stolen.

BERMAN: And a despite repeatedly calling the executive order a travel ban, the White House now says it is not, in fact, a ban, no matter what we called it. So, what do they want us to call it now? And how do they intend to move past the messy rollout?