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SCOTUS: Justice Kennedy's Retirement Another Potential Win for Trump's Next Choice; Democrats Fighting to Oppose Trump's Pick to Replace Kennedy; Trump: Will Pick Kennedy Replacement Quickly As Possible; Justice Kennedy's Retirement Gives President Trump His Second Supreme Court Pick; President Trump To Hold Summit With Vladimir Putin: Date And Location To Be Announced Tomorrow. Aired 10- 11p ET

Aired June 27, 2018 - 22:00   ET



CHRIS CUOMO, CNN HOST: "CNN TONIGHT" with Don Lemon is going to start right now. Don?


CUOMO: Six kids.

LEMON: Can you believe that?


LEMON: It's unfathomable. Crisis of their own making.


LEMON: Of his own making.

CUOMO: And it is more reinforcement of the fact that the message of harshness was more important than the practicalities of how to deal with these kids or how to fix it. They like the harshness. That's the message. What will happen next? We'll stay on it.

LEMON: Can they comply with these judges orders to have some in 15 days, some in 30. We'll see. Even if they know where are the parents are. I hope they know where the kids are, but the parents, who knows? Who knows? All right, Chris. Thank you, sir. See you soon.

CUOMO: Good show.

LEMON: This is CNN TONIGHT. I'm Don Lemon.

Here's our breaking news. President Trump says he is honored that Justice Anthony Kennedy chose to retire during his term, saying the justice felt confidence he would chose the right successor.


DONALD TRUMP, PRESIDENT OF THE UNITED STATES: Justice Anthony Kennedy, a very special guy, also just announced a little while ago his retirement from the United States Supreme Court.


TRUMP: Great man. And I'm very honored that he chose to do it during my term in office, because he felt confident in me to make the right choice and carry on his great legacy, that's why he did it.


LEMON: So, let's talk more about Justice Kennedy. He was chosen by President Reagan, he joined the court 30 years ago. But he's been a pivotal swing vote every since. Upholding Roe v. Wade and legalizing same-sex marriage, but voting wit conservative, the conservative majority more often this term including upholding the president's travel ban. That was just recently.

Now, President -- President Trump has a chance to fill the vacancy with someone much more conservative. Democrats are demanding the vacancy not be filled until after the midterms.

But there's the reality here, realistically there is not a lot that they can do, elections have consequences. Especially, the last presidential election, let's look at it. Eighty thousand people in three states decided the course of American history.

Think about that, 80,000 people in three states in a country of millions decided the course of American history. Ten thousand votes in Michigan go the other way. And the Supreme Court would look very different over the course of the next 20 or 30 years or longer.

But they didn't. President Trump won the Electoral College while losing the popular vote. But that's the whole enchilada, and he gets his second pick.


TRUMP: We have a very excellent list of great talented, highly educated, highly intelligent, hopefully tremendous people. I think the list is very outstanding.


LEMON: Elections have consequences. And today, those consequences are becoming clear. What the Supreme Court does will change this country for years and years and years to come, and it's already begun.

In this term, the court has upheld the president's travel ban against several countries -- seven countries, most of them Muslim majority. Sided with a baker who refused to make a wedding cake for a gay couple. Undermined labor unions, affirmed in Ohio law that purges citizens from voter rolls. A law critics say disproportionately affects minorities.

Upheld Texas congressional and legislative districts that a lower court ruled discriminated against Latinos. And a rule that California cannot require so-called crisis pregnancy centers to give women truthful information about their medical conditions.

Elections have consequences. So, what can we expect if President Trump gets another conservative justice on the court? Roe versus Wade, is that risk? There will likely be more cases of business owners claiming religious freedom to refuse to serve gay people.

The court could be more likely to reject challenges to the death penalty. And campus affirmative action programs could be on the chopping block. That may very well be where America is headed right now.

Just last night on this show, we noted it. It has been three years since Supreme Court ruling that established the right of gay people to get married. Little did we know how much things could change, now that the man who wrote that opinion is stepping down, leaving his replacement in the hands of President Trump.

So I want you to listen to this quote, it's from the last paragraph of the ruling by Justice Anthony Kennedy. Here it is, quote, "It would misunderstand these men and women to say they disrespect the idea of marriage. Their plea is that they do respect it, respect it so deeply that they seek to find its fulfillment of it themselves.

[22:04:55] Their hope is not to be condemned to live in loneliness excluded from one's -- one of civilizations oldest institutions, they ask for equal dignity in the eyes of the law. The constitution grants them that right."

Justice Kennedy, stepping down now.

Now, I want to bring in CNN's Chief Political Analyst, Gloria Borger, CNN Political Analyst, April Ryan -- Ryan Lizza -- I did it again, Ryan, CNN LEGAL analyst, Renato Mariotti, and Kevin Russell, a contributor to SCOTUS blog. Good evening to all of you. Good to see you.

Gloria, boy, it has been a very interesting day. And I just want to play more from President Trump tonight. He is thrilled about this retirement from Justice Kennedy.


TRUMP: The travel ban ruling underscores just how critical it is to confirm judges who will support our Constitution. And remember this, so we have a pick to come up, we have to pick a great one. We have to pick one that's going to be there for 40 years, 45 years. We need intellect; we need so many things to go. You know, there's so many elements go into the making of great justice of the Supreme Court, you got to hit every one of them.


LEMON: So Gloria, the president just had a huge win for his travel ban and he knows it.

GLORIA BORGER, CNN CHIEF POLITICAL ANALYST: Sure. LEMON: This can be bombshell as a huge political victory for the president.

BORGER: Well, it sure could be. And look, this is going to be one of the most consequential decisions of his presidency. Because what it is going to do, is he's going to set a huge part of his legacy, and it is going to determine, and it could determine the directions of the Supreme Court for generations.

This is no small decision here, and what he is facing is a Republican Congress, a Republican Senate. He only needs 51 votes. And we know the list of nominees, we know they're all very, very conservative. And the Democrats are facing an uphill battle here because they don't have the filibuster available to them.

And so, this is a moment for Donald Trump where he will be able to really cement something with one decision, cement a legacy with one decision. So, yes, it's a very good day for him.

LEMON: Kevin, let me ask you, Kennedy is a conservative, but he's also he was a swing vote on some very key issues. Gay rights, abortion, the death penalty, is the idea of a swing vote, Kennedy of Sandra Day O'Connor, are those days over? Are they gone?

KEVIN RUSSELL, PARTNER, GOLDSTEIN AND RUSSELL: There'll always be somebody who has to cast the fifth vote in five-four cases. That position now I think just moves over to the chief justice. We will finally have a Roberts court that is in fact controlled largely by Chief Justice Roberts. And he's more conservative than Justice Kennedy. But I think we will soon be calling him this one injustice.

LEMON: Renato, Kennedy's replacement further to the right, right?

RUSSELL: I fully expect that to be the case. Yes.



LEMON: Renato?

MARIOTTI: Yes. No -- yes, no question. I mean, all of the - all of the picks on Trump's list are very much to the right of the middle of the court now. Those picks were very carefully vetted by the Federal Society which is the sort of conservative legal group. And frankly, that is what led many conservatives to support Donald Trump.

He's not somebody who is a traditional conservative on many issues but this is one issue that conservatives care a lot about and he is committed to choosing somebody that is pretty far on the right. And he moved the court to the right with a Gorsuch pick, and now, again, he is going to move it further to the right. I agree with the analysis a moment ago. You know, ultimately, the chief justice will now be the swing vote. And he is much further to the right than where the court is being.


LEMON: Before I move on, Ryan, let me ask you, so what can we expect? Because I read off some things in the open there. Everyone is talking about Roe v. Wade, there's marriage equality, is Roe v. Wade gone? What's in play?


LEMON: Renato.

MARIOTTI: I think Roe versus Wade is gone. I would be very surprised. I think there's no question that -- no real question that Justice Alito and Justice Thomas will vote against Roe versus Wade. The question is just -- you know, the question now is just in Gorsuch I think would be in the same ilk.

So the question is, you know, will the chief justice -- I'm sure the new justice will be a sort of person who would over return Roe versus Wade. So the questions really, what is the chief justice want to do. You know, at times the chief justice -- Chief Justice Roberts has occasionally been cautious about making bold steps from the bench. But that's -- you know, that's a lot to rely on, he's a very conservative jurist.

LEMON: All right, Ryan, I want to bring you now. Is the court becoming as polarized as the country as the electorate?

LIZZA: You know, I think in some ways. I think if you read the immigration decision, what struck me about that decision was that the five justices and the majority basically explained away, or ignored all of Donald Trump's statements about anti-Muslim bias and said, if you just read the order, it survives constitutional scrutiny.

[22:10:14] Whereas, the four liberals on the court said wait a second. This is the most important thing, this whole history of animus towards Muslims is the key driving factor.

And frankly, that's very similar to how Republicans and Democrats in Congress look at Donald Trump, right? A lot Republicans sort of waive away or explain away some of the more provocative, and frankly, racist statements of the president. Whereas for Democrats that is what is essential and front and center.

So, yes, if we got our first taste of this week with that decision on immigration, of how the court mirrors the larger body politic when it comes to the Trump era.

LEMON: Yes. Gloria, listen, Democrats are really, they feel burned, they are fuming because they -- you know they're looking back to what Mitch McConnell did for Merrick Garland, he wouldn't have allowed that to go through that President Obama's nominee, Merrick Garland.

But also, this president could end up filling another seat as well. And that's Ruth Bader Ginsburg, 85 years old. She's not getting any younger, so he might have three picks here and Democrats are not happy about that. BORGER: Look, you know, the Democrats realize that they don't have

any leverage anymore because now they don't have a filibuster anymore, that was done away with for Supreme Court nominees.

But, they have to fight, because they have to fight because these are issues that are really important to them. These are issues that are really important to their base, to their party. I mean, the Democratic Party now, you could argue is driven by women. If Roe versus Wade becomes the major issue, this will galvanize Democrats.

But what they've got to do now, they have a really tough job if they're going to fight this because they have to try and corral all 49 Democrats to vote against whomever the nominees is. And that's not easy because there are 10 Democrats who are up for re-election in red states that Trump won.

And so, you know, you could lose a bunch of those. And then they have to hope that whomever Trump nominates is so objectionable, that Lisa Murkowski or Susan Collins, who are pro-choice Republican women, that they might oppose this nominee, even though both of them, for example, voted for Neil Gorsuch.


BORGER: So this is a huge uphill battle for them. But it is going to be bitter and hard fought because the stakes are so high for both parties. And both parties will be galvanized by this fight.

LEMON: We have a lot more to discuss when it comes to this topic so I want you guys to stick around.

When we come back, there's one Democrat that President Trump likes so much he asked her twice to join the GOP. She's an example of the problems Democrats are going to have trying to fight this battle. That's next.


LEMON: The president says he's going to re-pick a -- pick a replacement for Justice Anthony Kennedy as quickly as possible. While Democrats demanding the vacancy not be filled until after midterms, but they don't really have any leverage here.

So, back with me, Gloria Borger, Ryan Lizza, Renato Mariotti, and also Kevin Russell.

So, listen, Kevin, I want to ask you, let us put this up. Because if you look at this graphic, you see the impact that former presidents since Reagan have had on the court, most of them too except for -- except for Bush. He's one. He was only one term.

But I mean, this president could have as much impact on the court in his first two years as these other presidents had in their full terms.

RUSSELL: That's exactly right. And he could -- as was mentioned earlier, even get -- end up getting three appointments, which would change the competition of the court not something for decades but potentially for a generation.

LEMON: Who could we see replace Kennedy?

RUSSELL: Well, I think it depends on part on how big a fight and how open a fight he wants to have about abortion. If we want to appeal to his base and have that open fight, he'll pick somebody like Judge Pryor from the 11th circuit who has called Roe versus Wade the worse Obama nation in constitutional history.

If he doesn't want to have that fight, he could pick somebody like Judge Hardiman whom he interviewed for the job last time, who doesn't have that kind of record on abortion, but is a solid conservative and I think we have a relatively easy time getting confirmed.

Or he could pick somebody like Judge Kevin on the D.C. circuit who has enthusiastic support of the Chamber of Commerce and Federalist Society wing of the Republican Party because he's a young very energetic conservative who I think most people think is probably a solid vote over Roe but also doesn't have that kind of open track record.

LEMON: Let's talk about the timeline here. Because Justice Kennedy says his retirement is effective July 31st. What is the timeline here, Ryan? I mean, Trump, he is going to nominate someone. He's going to see the meet and great, he's going to have the hearings. How long could this end up taking?

RYAN: Very quickly. Look, he's been prepared for this, the White House counsel's office which runs this process has been prepared for this. Remember, as far back as the election they put together a list of 20 names, right.

Most presidents who are suddenly faced with a vacancy in the Supreme Court, you know, they're not necessarily starting from scratch but a huge universe of names, right? Federal judges, former politicians, they usually, you know, they do a lot of blue sky thinking about it.

They're not doing that at the White House. Trump said today that it will come from that list of now it's 20, I guess 24 people. Of course I've just taken it off so I guess it's 24.

And so, they have it narrowed it down. They have been prepared for possibility that Kennedy would retire at the end of this term, everyone knew that was a possibility. So, I think -- and they've gone through the process once before, so they've actually interviewed some of these -- some of these judges that are on that list.

So, I think they will move very, very quickly. I think it's probably in the interest of the Republican Party to do this before the midterm elections. Because Donald Trump and other Republicans want to be able to go into those midterms saying, we didn't just do tax reform, we don't have a just a great economy but we deliver on the promise of two Supreme Court justices.

[22:20:07] That's -- you know, that's a pretty serious record. And that will get a lot of conservatives to the polls.


LIZZA: So I expect this to happen very fast.

LEMON: Gloria, I wonder if the original sin was for Democrats, they were going nuclear and getting rid of the filibuster and that led Mitch McConnell to do the same for Supreme Court nominations.

BORGER: Yes, you know, I mean, Harry Reid did it because he was frustrated about not being able to get Barack Obama's federal judicial nominees through. And then one thing led to another. And it was Mitch McConnell who was standing up on the floor of the Senate saying, you know, you're not going to always control the Senate, harry Reid, and this is going to lead you down a path here.

And lo and behold of course it did. And so now Mitch McConnell said eliminated the filibuster. And the Democrats are left with no leverage. Theirs maybe have been the original sin but they are in a very, very difficult position now, and they have to engage in this fight. And they're going to fight to the bitter end because so much is at stake. But they know the odds are really stacked against them.

LEMON: Yes. So Kennedy, he did vote in favor of Trump's travel ban.


LEMON: But he also offered a rebuke. What does it say, Kevin, to you that Kennedy, who is a Republican, is willing to hand over his precious seat to Donald Trump?

RUSSELL: Well, I think it indicates that he has some level of confidence that his legacy is not going to be completely undermined by the person that President Trump will pick to replace him. He's probably gotten some confidence of that through the pick of Judge Gorsuch to be on the court -- Judge -- Justice Gorsuch and Justice Kennedy were aligned on almost all of the cases this term.

And I think if he believes that the Trump administration will appoint somebody like that again, that probably gave him some comfort that he could do this without endangering his legacy.

LEMON: Yes. I'm wondering, Renato, is that is it surprising considering that some of his key swing decisions on Roe v. Wade, on same-sex marriages, on affirmative action, is this surprising?

MARIOTTI: You know, Kennedy, those are the decisions that we talked about and we remember these swing decisions. But it's worth noting that, you know, 80 or 90 percent of the time he was voting with the conservative block. That is why I think he feels comfortable handing this pick over to Trump.

I mean, if you read his letter, he says "my dear Mr. President" and you know, he feels very comfortable handing over that pick to somebody who's going to pick someone like Neil Gorsuch. You know, Justice Kennedy voted with 80 percent of the time this time.

So, you know, the court is already conservative, the difference is now that the court is going to move even further to the right. Further away from where America's at.

And I will tell you one thing that I think conservatives need to wonder and be concerned about, is if the court moves further to the right and overturns Roe versus Wade is that going to fire up women to vote, you know, progressive women and others who are suddenly impacted by decisions that they didn't think would matter. You know, elections will suddenly feel real to them in a way that perhaps they hadn't before.

LEMON: What do you say to that, Gloria?

BORGER: I think -- I think that's absolutely right. I think it depends on who you chose. If it's somebody who has spoken out against Roe versus Wade, you could potentially lose Susan Collins and Lisa Murkowski.

But in terms of galvanizing women, I think they'll be galvanized one way or another. But if Roe versus Wade starts getting eroded at the state level, which is what would happen, and women start seeing this, I think it could galvanize women for the next presidential election.

I mean, that could be -- that could be what is decided by the choice that Trump makes in the next few weeks. And I do think he's going to make his choice in the next couple of weeks because he has pre-vetted everyone. So, you know, we not only have to look down the road at 2018, but also, this is so consequential it could very easily decide 2020.

LEMON: Yes. So let's look at 2018, Ryan. And this is for you. And I want to play this. This is a bit from Trump's rally in North Dakota attacking Democrat Heidi Heitkamp using false information as he frequently does. Here it is.


TRUMP: Heidi will vote no to any pick we make for the Supreme Court. She will be told to do so. Now, maybe because of this, she'll be forced to vote yes, who knows? But I will tell you, she'll vote no the day after the election.


LEMON: OK, so listen. He's wrong, because Heidi Heitkamp, two other red state dems broke ranks and voted for his last pick, Neil Gorsuch, so how are red state Democrats vote this time around, do you think?

LIZZA: That's a great question. And frankly, if you're up for re- election you're in a red state you kind of will get a free vote on this, right.

[22:24:56] It's obvious that Trump's nominee -- assuming a lot here -- but if it's obvious to these three senators that the nominees are going to pass anyway because they have 51 Republican votes. And the nominee is not someone so far outside the mainstream, then someone like Heidi Heitkamp will vote in favor of him or her just like she did for Gorsuch if she's in a tough race. So, I don't think it's -- the only -- the only time where they will

have a very, very difficult decision is if in the unusual circumstance where you have two Republicans, and everyone's talking about Murkowski and Collins.

BORGER: Right.

LIZZA: Going wobbly, and then there's enormous pressure on the 49 Democrats or the 47 Democrats since two independents to stick together, right? That's the pressure situation. And you know, that's a fairly unlikely scenario.

But this entire -- let's -- if you think about Kennedy, where he -- a lot of people have said he's, you know, he's pretty conservative, there really weren't that many swing votes at the end of the day. The issue where he was the swing vote, where there's still a chance of the Supreme Court changing is on abortion, right?


LIZZA: This entire fight is going to be over that issue.

LEMON: All right. We shall see. Stay tuned. There's always something every single day. I appreciate it. Thank you, Gloria. Thank you, Ryan, Kevin, and Renato. We'll see you soon.

When we come back, much more on Justice Kennedy's retirement with President Trump now in the position to pick his second Supreme Court justice. What will happen if the court has to rule on questions about the president and his policies?


LEMON: President Trump telling supporters in North Dakota tonight that Justice Kennedy's retiring now because he has confidence that Trump will chose a replacement to carry on Kennedy's legacy.

So let's bring in now CNN Political Commentators, Mike Shields, and Symone Sanders, and Republican Strategist, Rick Wilson. Good evening to all of you. Everybody's smiling. I thought, Symone, you might be a little sad, I'm not sure.

SYMONE SANDERS, POLITICAL COMMENTATOR, CNN: You know, I got off the plane today in Indianapolis, Don, and I was slightly devastated by this Supreme Court news. But we're ready to fight.

LEMON: OK. Well, listen, at least you're smiling. So, you know, as I have said in the opening to the show tonight, what happened today, it makes it pretty clear that elections have really consequences. What are some of those consequences, Symone?

SANDERS: Well, one, I want to be clear. I know I saw a lot of hot takes, if you will, today on Twitter at a mini network that noted that this is, you know, progressives right here, and Democrats were saying this is the fought of folks that didn't vote for Hillary Clinton, and chose a third-party candidate. And what I would like to say is elections do have consequences. That

will remind people that Hillary Clinton won the popular vote. Donald Trump beat Hillary Clinton via the Electoral College. So the fact of the matter is, going forward, all of these -- everything that we're seeing is a result of who the president is. So who the president is matters because his powers matter, who we could not --

LEMON: So are you saying it wasn't Bernie's fault without saying it wasn't Bernie's fault? Is that what's here?

SANDERS: Well, I don't even think that's anything I need to say, Don, because it's ridiculous to assert is if it was Senator Sander's fault. That matter -- the fact here is though, Don, people talk about the identity crisis today, and the Democratic crisis today. We don't have an identity crisis. We are very clear.

And the fact of the matter are there is a list of Donald Trump has put forward for Supreme Court -- potential Supreme Court justices are a list of conservative ideologies not mainstream jurist. And Democrats in the United States Senate are ready to hold the Republican counterparts and the President accountable, and fight for a Supreme Court justice, that would be a mainstream jurist.

LEMON: So, listen, I hear what you are saying, and I saw that on social media, and I got a lot of messages as well, and pretty much everyone was in agreement, and not in what you said, the opposite way or the protest vote, and they are asking all the people who were screaming Bernie, Bernie, Bernie, at the convention after Hillary Clinton got the nomination if they are happy with themselves.

People who did a protest, people who voted for Jill Stein, people who chose and thought they didn't want to go to the polls, people who said, oh, this is the lesser of two evils, or all of that, I think that's what people are blaming it on.

I'm just saying that, that's not me, but that seems to be the consensus here. So, Mike, listen, he won, right? He got to nominate Gorsuch, his next pick will further help define the rule of law here. So what message to Democrats -- what is the -- what is the message here, tough luck?

MIKE SHIELDS, CNN POLITICAL COMMENTATOR: Yes. The message is that the Supreme Court pick was actually on the ballot in 2016, and they lost, and it was talked about. The voters knew that, and they chose. And I think the lesson here is that Democrats have to be careful that we don't only get a Supreme Court pick, but through the process of naming it. We also pick up 10 Senate seats.

Because there are 10 Democrats that are going to be forced to vote on this that are in states that Trump won. Some of them in states he won by 20, and 30, and 40 points. And so they can put up a huge fight, and force this to be a really bloody battle in terms of the rhetoric on it.

And try to force those Democrats to tow the line, and cost of them their seats, and gain seats for the Republicans. Or they can say, you know what, this is the President's pick. He's going to name somebody that's conservative. We can't do anything about it. Let's not put those people in a tough position. We could actually get a Supreme Court justice, and 10 Senate seats as it is.

LEMON: So, I want -- and Mike --


LEMON: Why are you laughing?

SANDERS: Mike is reaching, Don.


LEMON: I'm let you respond. I'm let you respond. But I have to do -- and I've said this to you off air, Mike, I think that your -- I think that your -- I said it so I don't think you mind me sharing that with the audience.

But I think you're much better as a political strategist than telling people what the strategies are behind what Donald Trump is doing, what the Republican Party is doing, and then fighting, you know, trying to do, you know, make excuses for, however you want to put it, I don't mean to offend you about --


LEMON: -- about what Trump has done.

SHIELDS: I think that is political strategy. I think that there is an issue here for Heidi Heitkamp, and --


LEMON: No, I'm trying to give you your props because I think you actually are making --

SHIELDS: Oh, I thought that you are trying to --


LEMON: I'm saying I think you're making a very good point that the people on the other side should be listening to about strategy, about long-term goals, about playing the long game, about not having a litmus test for candidates.

[22:35:04] Because everyone -- every Republican knew what Donald Trump said, what he stood for. A lot of them weren't on board. There were a lot of never Trump voters, but when it came down to election time, or to back him at least in front of the cameras, what did they do? They backed him, and they voted for him.

SANDERS: But I just -- but, Don, if I may, I just want to make a point here. Look, I taught a -- I taught a whole class at Harvard about this last semester. The fact of the matter is, the Democratic Party is a party of disparate factions that have organized under an umbrella of quote/unquote shared values, which can be debatable. You put five progressives in a room, they might tell you tell you the examples for five different things.

LEMON: And this is what you get.

SANDERS: To acquit what they were --

LEMON: But this is what you get then.

SANDERS: But I'm just saying, to acquit the Republican Party to the Democratic Party, I think is not understanding how the parties are in fact made up. The fact of the matter is --


LEMON: Symone, I disagree with you. Listen, it's not understanding how elections work, and how elections have consequences because they were people who on the Democratic side, many of them including Bernie Sanders supporters, who were shouting down allies about Hillary Clinton, whether you liked Hillary Clinton or not. I am saying the same thing that I have said about Donald Trump.

SANDERS: Hold up.

LEMON: Whether you likes them or not -- whether you liked Hillary Clinton or not, I am just questioning --

SANDERS: Hold up, Don. Hold up, Don.

LEMON: I am questioning --

SANDERS: You know I voted for Hillary.

LEMON: -- the strategy, and the intelligence of shouting down an ally, and damaging a candidate.

SANDERS: Oh, lord.

LEMON: And then all of a sudden you get this, that's all I'm saying. Everybody jumped on the Republican side on Donald Trump, and his --


SANDERS: I will make a 20-point second on this. The fact of the matter the Democratic Party at (Inaudible) failed together. This is a collective effort. We failed to make the courts a motivating factor in 2016, that's a result of all the polling I have seen, and all of the focus groups I've sat in.

And the many places that I'm at -- I'm sitting in Indianapolis, Indiana right now, today, where Senator Donnelly is in a fight that I think he can win. So the fact of the matter is, we can participate on what happened in 2016, but we're here looking at 2018 in the face.

And I think the Democrats do have a motivating factor, and the factor is not look at what happen to (Inaudible), the factor is hold the line. We cannot allow the Republican Party and Donald Trump to change the face of court's for a generation. I think that Neil Gorsuch --

LEMON: He already has.

SANDERS: -- and said look, it was Anthony -- I am not succeeding that fight, Don, and many progressives themselves are still with me. And so that's why you saw folks like Senator Harris come out today with her comments. So I don't think the fight is over. And I reject the notion that this is all at the feet of Bernie people. We can participate about what happened in 2016.

LEMON: No, it's not all on --

SANDERS: But we are 2018 right now.

LEMON: It's not what anybody's saying. Everybody little bit matters. That is all I am saying. And I'm just questioning the strategy, that's it. That is all I am saying. I'm comparing the two parties. You say there's no comparison, but one of them won. They're getting two Supreme Court nominations, judges, justices, maybe a third, the other party lost.

SANDERS: And that's something we regret. I'm not going to -- that's something we regret.

LEMON: And are getting zero, and doesn't have control of the House, or doesn't have control of the Senate, and the White House. I'm just saying.

SANDERS: I'll see you in November 2018. That's what I'll say to my Republican friends. I'll see you in November 2018

LEMON: All right. Rick, I know you want to talk. So, I'm going to give you the first thing on the other side. And what does this mean for the President's policies as well when the it comes to the justices? We'll be right back.


LEMON: Back with Mike Shields, Symone Sanders, and Rick Wilson. I love that I had to fight to give Mike a compliment tonight. He was like --


SHIELDS: Thank you. I'm sorry. I thought you were criticizing me.

LEMON: That's all right.

SHIELDS: I'll just take it from now on.



LEMON: When you're right you're right. And that's, you know, I appreciate it. I think you're very smart about what you said, and about the strategy, and what happened, and how this all played out. But, Rick, since you didn't get the chance to talk a lot, let me give you the first couple of questions here.

So let's talk about the importance of the judicial -- of judicial independence. There are many cases that may make their way into the court about the President's behavior. Like, you know, can the president be indicted, or can a president -- a sitting president be subpoenaed. With two justices appointed by Trump, do you think there are going to be a question about their decisions as these issues make their way to the court?

RICK WILSON, REPUBLICAN STRATEGIST: Well, I hope that we end up with a justice who, you know, reveres the constitution, who is obedient to that -- to the restrictions of the constitution, and the traditions of the court, and who puts the rule of law before any political consideration including who nominated them.

And I think over a time we have seen in many justices that the nomination -- the person who nominate them doesn't particularly get a greater amount of knock-on loyalty to that -- to that person. They -- that most justices do take it seriously. And I hope that the person who is nominated is such a person.

And the truth of the matter is, this is not Donald Trump's list, these are not Donald Trump's guys. They are federal society folks, and other folks that have been this rather large pool of Republican, and conservative jurists. And I'm hopeful that they'll nominate somebody, you know, who has a serious mind, and who has a serious intellect, and has a serious, you know, admiration for the rule of law.

And that should sort of balance out, you know, some of the concerns that it's just somebody that Trump is putting on the court. You know, look, unless he nominates Jeanine Pirro, which will be hilarious, and yet horrifying, you know, a lot of these folks are serious people.

They are not, you know, they maybe more conservative to the average Bernie voter, but they are also -- you know, many of the people on that list -- again they are not Trump's people, they are serious jurist from our system, that, you know, hopefully we would see them exercise, you know, this sort of judicial discretion that one hope they would as conservatives.

SHIELDS: Can I add something to that real quick, Don?

LEMON: Yes, go on.

SHIELDS: You know, the President's often criticized for his process, right? Like how does he go about coming up with the people he's pardoning, and using his gut, that sort of thing. On the Gorsuch pick, he was praised -- bipartisan praise for the process that put into place. Yes, a lot of the names do come --

WILSON: That process was called Mitch McConnell.

SHIELDS: No, no, the vetting process in the White House, the counsel's office, working with people like the federal society that come up with the list that you just talked about, vetting those justices, interviewing through the President's -- I mean they got kudos from a lot of people for conducting a very thorough process that got us Neil Gorsuch.

[22:45:03] And I think that that is going to play out here again as well.

LEMON: But, I think what Rick's point is -- and, Rick, correct me if I'm wrong, you're -- are you going all way back to Merrick Garland because it was Mitch McConnell who said, no, we're not going to vote on it, we're going to sit on it, and then gave this president the opportunity to nominate some of his --

WILSON: I mean, Senator McConnell is the alpha player in this thing. And people who -- people who sleep on Mitch McConnell regret it every time. The guy is one of the most crafty, and incisive legislative players we have ever seen.

And, you know, if the Democrats think that they can just make a lot of noise about this, or pick any random guy, and decided just because it's the Trump nominee. Mitch McConnell has command over this process, they should be very mindful about that going forward.

You know, look, and again, I don't think Trump's going to end up appointing a Jeanine Pirro to the court. God, that would be so fantastic. I mean, it would be months of hilarity. But, you know, Mitch McConnell, you know, is a very smart guy, do not underestimate him. He is going to command this process, even though he's got some problems --

SANDERS: So let me -- I just --

WILSON: Even though he's got some problems on his end as well, because look, you don't have a lot of happiness from Susan Collins, Lisa Murkowski, Jeff Flake, and a couple of others who are nervous that this is going to be -- that there might be an overreach on this question.


WILSON: It's a complex vote that we have a problem right now. 2 LEMON: Go ahead, Symone.

SANDERS: It is -- it is complex issue, but two things. So, one, to be clear, Mitch McConnell stole a Senate, stole a Supreme Court -- Supreme Court seat from, then-President Obama. He stole that seat. That was a seat that the president's discretion to appoint a Supreme Court justice to put someone up for nomination, and Mitch McConnell stole that seat. So I just wanted to be clear. We are talking about it, and I just keep the facts. Number two --

SHIELDS: Elections have consequences. That was on the ballot.

SANDERS: Look -- oh my god.


SHIELDS: -- Hillary Clinton re-nominating him.

SANDERS: So here's the thing.

WILSON: And according to a branch of government -- look, Symone, the clerical branch of government is part of it whether you like it or not --


SANDERS: Hold up, I just want to be clear, I don't need anybody --


SANDERS: Hey guys, one, I don't need anybody lecturing me about a clerical branch because I talk about it often. Two, I think it's disingenuous for you all to assert that democrats don't -- aren't getting some, or don't have, or aren't getting some type of plan together.

This is something we've known that could potentially happen. It was a blow to me, and many other people when I got off the plane today. But to assert that all we're going to do is yell in screen and shout, we're not going to have some type of plan to do something is disingenuous, and intellectually dishonest.

SHIELDS: You know, Symone, my --

SANDERS: Look --

SHIELDS: I'm saying you won't have one. I am saying you shouldn't have one.

SANDERS: All I am saying is -- all I am saying is we understand the facts.

SHIELDS: You shouldn't do it.

SANDERS: We understand the facts. What do you mean -- well, look, I think it's --


SHIELDS: It would be better served than --

SANDERS: I think I would love for us not to fight, Mike. I don't -- I disagree. This is -- this is the facts, this is where we are, guys. The President put out a list today, that list is not a list of mainstream jurist, that is a list of conservative ideologues. That if the president and folks in the White House, and this administration supporting the President, and want to come to the table with what they think and believe are mainstream jurisits, they should put those folks on the table.

LEMON: I've got -- SANDERS: There are many people calling to ditch the list.


LEMON: I've got to run, but listen, even if you think that -- however you feel about the nominees, it's his to pick. Elections have consequences.

SANDERS: Where was this -- where was this when President Obama was in office. This is a bunch of B.S --


LEMON: I'm not in Washington -- I'm not in Washington. Oh, you'll have to ask the guys there. But I mean, maybe Democrats should have had a better strategy. Maybe they should have fought harder.

SANDERS: Maybe some of the -- maybe some of the liberal judges should have step down, and let the President, you know, appoint a couple of more judges, who knows. There are a lot of different scenarios that you can go after. All right, thank you all. Appreciate it.

When we come back, it is official, President Trump is going to meet with Vladimir Putin one on one. Details of the summit to be announced tomorrow, but what kind of deal will come out of their meeting? General Michael Hayden weighs in. He's next.


LEMON: President Trump set to hold face-to-face talks with Vladimir Putin soon. The date and location of the summit will officially be announced tomorrow. And I want to talk about that, and other things with CNN National Security Analyst, General Michael Hayden, who is the former director both the CIA and the NSA, and he is also the author of The Assault of Intelligence, American National Security, and An Age of Lies. Good to have you on.


LEMON: We will get to Vladimir Putin and the meeting soon. But I want to talk first about the court here, the retirement of Justice Kennedy. Does it change in the court's ideological make-up have implications for national security, or for containing abuses of presidential power?

HAYDEN: It does a bit. You know, certainly I've lived through this in the Bush administration as we expand a lot of things in the war against international terror. And actually Kennedy's quite an interesting case.

During the Bush administration, he joined the majority to limit presidential powers when it came to designating people, prisoners of war, military commissions, and so on. But more recently, Don, he has sided with a fairly robust definition of executive authority.

He voted with the majority on the Muslim ban, and he was in the minority in the court's decision to limit the ability of law enforcement to get locational data on people's cell phones without a warrant. So there's a mixed bag. My sense is anybody the President nominates will be fairly comfortable with robust executive authority when it comes to national security questions.

LEMON: OK. So what about questions like can a sitting president be indicted or subpoenaed?

HAYDEN: Yes. And again, I thought Rick in the previous set -- Rick Wilson was spot on. These are all accomplished individuals in their own right. They come to the job, I think, with a knowledge and respect for the constitution.

And the history has been that appointees don't remain blindly loyal to the president that appointed them. So I'm cautiously optimistic that they'll follow the constitution, and not be overly politically influenced.

LEMON: We're in different times now. I mean these are -- you know --


LEMON: -- unusual time to say the least. So let's talk now about Putin, because the meeting with Putin is supposed to take place around the NATO meeting with America's closest allies.

[22:55:03] What do you expect to see?

HAYDEN: So, number one, I'm glad that the sequence of the meetings appeared to be that the Putin meeting comes after the NATO meeting. It optic for the other way around, it would have been awful as if the president was carrying Putin's message to the alliance.

So now the President has the opportunity to build some consensus with the alliance, and to bring that to his talk with Putin. Frankly, Don, overall, the concept of the meeting is hard to argue with. I think what makes the allies nervous is the implementation of the meeting given what happened with the meeting in Singapore with Kim Jong-un.

LEMON: So the President has talked about Russia and Putin in growing terms as we've discussed from the very beginning of this campaign. Are you concerned that he could make concessions or deals with Russia that aren't in America's best interest?

HAYDEN: That is my concern, and that was my reference to the Singapore summit where it appears as if the President gave up an awful lot, including the fact of the meeting, and didn't get a whole lot of concrete in return.

Look, Don, what I'm looking for is someone in the administration to simply say our relationship with the Russian federation will be governed by the following three, two, one principle. And I don't know what that is. What we've got from the President is simply a statement, wouldn't it be better if we got along --

LEMON: Yes. HAYDEN: -- which is not a real strategy.

LEMON: I want to get this in. I just have a few short moments left here with you. Despite other promises Kim Jong-un made to President Trump, there are new satellite images, General, that show North Korea rapidly making improvements to one of its nuclear facilities. That's according to the monitoring group, about 38 north. Do you think Kim has any intention of denuclearizing?

HAYDEN: Look, all along, Don, I've said he would be crazy to go to zero with his nuclear weapons. And what you saw there, that picture actually is the civilian side of their nuclear program. And it's not clear that we have actually said to the North Koreans they can't have any kind of peaceful civilian nuclear activity. I for one would rather they didn't. But what's included in the deal even where we get to define zero and denuclearization.

LEMON: General Michael Hayden, always a pleasure. Thank you, sir.

HAYDEN: Thank you.

LEMON: When we come back, President Trump's latest Supreme Court pick could be one of the most consequential decisions of his presidency. We're going to talk about how it could impact the country.


LEMON: This is CNN TONIGHT. I'm Don Lemon. It is 11:00 p.m. here on the East Coast live with all the new developments for you right now. Including the bombshell announcement that Justice Anthony Kennedy is are retiring from the Supreme Court. President Trump is speaking tonight about exactly what he is looking for in a Supreme Court justice.