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Anthony Kennedy Announces Retirement from Supreme Court; McConnell Reacts to Retirement Announcement, Praises Kennedy; Trump to Search for Replacement for Justice Kennedy Immediately. Aired 2:30-3p ET

Aired June 27, 2018 - 14:30   ET


[14:30:00] GLORIA BORGER, CNN CHIEF POLITICAL ANALYST: But Donald Trump pays an awful lot of attention to the people who got him elected. And so those who were thinking like you might want a more moderate swing vote on the Supreme Court --


BORGER: -- you know, Donald Trump can surprise us all, but I wouldn't think that he would actually do that. I think he would want more of a sure thing, and less of an Anthony Kennedy.

BALDWIN: Got you.

More reaction coming in.

Daniel Epps is we me, another former clerk for Justice Kennedy on the phone.

And so, Daniel, how surprised are you and why do you think he's retiring now just months before the midterm election?

DANIEL EPPS, FORMER SUPREME COURT CLERK (via telephone): You know, I'm somewhat surprised. When I was clerking for him, I always thought that he would stay on the court as long as he was physically able to do so because he really has a wonderful role. He gets to decide all the important cases. He's been right at the middle of the court. He gets to write the biggest cases. And whoever replaces him is likely to diverge significantly from his views on a bunch of cases. He is conservative, no doubt about that. And he is certainly more conservative but has diverged in some big areas most significantly gay rights. And at some level, I would imagine he has to know that his replacement is likely to be more of a conservative.


BALDWIN: Let me stop you on that thought. I think you're right.

EPPS: Sure. Sure.

BALDWIN: My last guest was making that point. Ultimately, at the end of the day, this is up to Congress, but it's up to the administration as to who they put forward. And the notion of it being a more moderate justice versus someone on the far right, I mean, I don't know what he thinks about President Trump behind closed doors, maybe you know, but we maybe know how this is going to go, right?

EPPS: I wish I knew. I read with a lot of interest his concurring opinion in the travel ban case just a couple days ago where he seemed to be expressing some handwringing saying the world has to know that we care about the Constitution, but then feeling like there's nothing that he can do about it. And maybe he feels like he can't keep doing this, he is tired. He moved up his law clerk reunion last year. A lot of us thought that was a signal that he was retiring last year. That didn't happen. But I think a lot us in his network started getting the impression that he was tired and didn't want to keep doing it. I don't know how much he is thinking about the gaming out the consequences of the election. Justices tend to not do that as much as maybe they should. Justin Ginsburg didn't do that when Obama was president because she wanted to keep doing the job. And so it is very hard job to give up. It is one of the best jobs in the world, especially if you are middle of the court.

BALDWIN: You mentioned, last question, that he has been a key swing vote in a number of cases. You mentioned same-sex marriage. Remind us of the role he played.

EPPS: Sure. So he wrote a number of important gay rights decisions. Ultimately --


BALDWIN: Forgive me, Daniel.

Let's go to the speaker -- Majority Leader Mitch McConnell.

SEN. MITCH MCCONNELL, (R-KY), SENATE MAJORITY LEADER: -- the Supreme Court effective July 31.

First and foremost, I want to pause and express our gratitude for the extraordinary service that Justice Kennedy has offered our nation. He served on the federal bench for 43 years. In particular, we owe him a debt of thanks for his ardent defense of the First Amendment and the First Amendment's right to political speech. As Justice Kennedy concludes his tenure on the court, we wish him, his wife, and their family every happiness in the years ahead.

The Senate stands ready to fulfill its constitutional role by offering advice and consent on President Trump's nominee to fill this vacancy. We will vote to confirm Justice Kennedy's successor this fall. As in the case of Justice Gorsuch, Senators will have the opportunity to meet with President Trump's nominee, examine his or her qualification, and debate the nomination. I have every confidence in Chairman Grassley's conduct in the upcoming confirmation process and the Judiciary Committee.

It is imperative that the president's nominee be considered fairly and not subjected to personal attacks. Thus far, President Trump's judicial nominations have reflected a keen understanding of the vital role the judges play in our constitutional order. Judges must interpret the law fairly and apply it evenhandedly. Judicial decisions must not flow from judge's personal philosophies or preferences, but from an honest assessment of the words and actual meaning of the law. This bedrock principal is clearly defined in the president's excellent choices to date. So we'll look forward to yet another outstanding selection.

But today, the Senate and the nation thank Justice Kennedy for his years of service on the bench and for his many contributions to jurisprudence and to our nation.

[14:35:45] BALDWIN: All right. Gloria Borger, let me go back over to you.

Because that is the first now we've gotten reaction up on Capitol Hill with the Senate majority leader. Just to recap, apparently, with surprise over at the White House, although I was just handed a piece of paper saying President Trump says Justice Kennedy visited the White House before that retirement announcement. So there's that.

But back to Mitch McConnell. And we were talking about this just yesterday on this whole travel ban decision and the Neil Gorsuch factor. The leader talked about the vital role Supreme Court justices play. How about the vital role that the Senate majority leader has played in a sense shaping of this court? Because he is the one under the Obama administration that held up anyone ever hearing from Merrick Garland. And we saw then came Justice Gorsuch. And now this.

BORGER: Well, you know, Mitch McConnell clearly sees this as his legacy and some of the most important things he's done for conservatives. Democrats consider him the enemy because they believe that, you know, he held up Merritt Garland for a year for no reason. And I think there's a lot of merit to that, quite frankly. And now that the filibuster rule has changed, the president has a lot more leeway here. He can nominate a conservative. He needs 51 votes. Democrats can try to slow it down. But this kind of a decision by the president really energizes his base. And if he gets the person he wants on the court, if this person is a conservative, the president can go out and campaign in the midterm elections and say, look what I've done. This is one more thing that I've done for you. You know, the court upheld his travel ban this week. He's passed tax reform, et cetera, et cetera. So he can say, I've kept my promises, and the court is the most important promise that I've been able to keep. And you can see with Mitch McConnell clearly he wants to get this done quickly. The president is now facing questions of whether he testifies in the Russia investigation. So all of this sort of coming to a head together. But it seems --


BALDWIN: Hang on. Here is the president.

DONALD TRUMP, PRESIDENT OF THE UNITED STATES: -- great respect for Justice Anthony -- you know who I'm talking about. Justice Kennedy will be retiring. And he is a man that I've known for a long time and a man that I've respected for a long time. He's been a great justice of the Supreme Court. He is a man who has displayed tremendous vision and tremendous heart. And he will be missed. But he will be retiring. And we will begin our search for a new justice of the United States Supreme Court that will begin immediately. And hopefully, we're going to pick somebody who will be as outstanding.

So I just want to thank Justice Kennedy for the years of tremendous service. He is a very spectacular man. Really is a spectacular man. And I know that he will be around, hopefully, for a long time to advise and I believe he will be teaching and doing other things. So thank you to Justice Kennedy.

Thank you.


UNIDENTIFIED FEMALE: Thank you. Thank you.

TRUMP: We have obviously numerous people. We have a list of 25 people that I actually had during my election. I had the 20, and I added five a little while ago. We have a very excellent list of great talented, highly educated, highly intelligent, hopefully, tremendous people. I think the list is very outstanding. When I was running, I put down a list of 20 people because, not being a politician, I think people wanted to hear what some of my choices may be. And it was pretty effective. And I think you see the kind of quality that we're look at when you look at that list. But I did add, I added five additional people to the list. So it will be somebody from that list. So we have now boiled it down to about 25 people.



[14:40:26] TRUMP: Yes. No, I will tell you we fought very hard to get it here. I think that they are doing a fantastic job with the World Cup right now. It is in Russia. And I will tell you that it is exciting. My son loves soccer and he loves watching the World Cup. And they have really done a fantastic job with the World Cup. It is exciting. Even if you are a non-soccer fan -- I'm a soccer fan a little bit -- but I don't have much time.

UNIDENTIFIED REPORTER: Who are you rooting for?

TRUMP: Well, I'm rooting for everybody to do well. But I think the venue has been fantastic. They really have shown something very special.

I fought very hard to get it for the United States, Mexico and Canada, as you probably have heard. And we were honored to be chosen.

And this is a great gentleman, and a great soccer fan, too.

But we were very honored to be chosen for the World Cup. So we look forward to that.



TRUMP: Most likely. John Bolton is over there now. He is over in Russia right now. I just saw, watching media, that he's met with president Putin. I haven't got the full report yet. But it would look like that we will probably be meeting sometime in the not too distant future. And I've said it from day one, getting along with Russia and with China and with everybody is a very good thing. It is good for the world, it is good for us, it is good for everybody. So we'll probably be meeting sometime around my trip to Europe.


TRUMP: It hasn't been determined yet. Probably, I will know within an hour.

UNIDENTIFIED REPORTER: (INAUDIBLE) -- on immigration. Will you fight that -- (INAUDIBLE)

TRUMP: We'll see. But we believe families should be together also. So there's not a lot to fight.


TRUMP: But we believe families have to be together. But what we really do is we believe in very strong borders. No crime. And the Democrats believe in open borders and plenty of crime. Because that is what you get with the open borders.

I would like to introduce, however, the president of Portugal.

I'm sorry to bother you, but in our country, the selection of a justice of the United States Supreme Court is considered -- I think we can all say -- one of the most important events, one of the most important things for our country. I mean, you see the decisions that just came down, how big they are, how vital they are. And they can swing different ways depending on who there might be in the court. So it has always been considered a tremendously important thing. Some people think, outside of, obviously, war and peace, it is the most important thing that you could have.

But another very important thing is introducing the president, the highly respected, I must say, president of Portugal.

Thank you.


As constitutional law professor, I know you how important it is when a justice in your Supreme Court retires. Because it is a key for the country. So I just heard the news. And I imagine how important it is for you and for any United States president.

Anyway, I'd like to tell you that we have a very long-lasting friendship and partnership --


DE SOUSA: -- that started the moment we recognize you. We were the first neutral country to recognize the United States of America's independence. We have as our oldest ally, England. And I don't know if you know it, but your former fathers celebrated independence with our Madeira wine. They made a toast with our Madeira wine. It is a long, long story, this one of our friendship, our partnership, based on common values, democracy and freedom and rule of law and human rights. But also of a very strong community. Citizens that are both American, Portuguese, and we love America, they love Portugal. There are about 1,400,000 Portuguese-Americans living here.

TRUMP: That's right.

DE SOUSA: They are important. So it is not just a military, political or economic alliance. It is more than that. It is something very human. Because we're speaking of 1,400,000 people that live their love for two countries at the same time.

And as you spoke of soccer, let me ask you something -- make you a suggestion. If you are going to meet Mr. Putin, I was with him last week, and he asked me to greet you. So of course, he was expecting your visit.

But any way, don't forget that Portugal has the best player in the world. That is called Cristiano Ronaldo.

[14:45:34] TRUMP: Oh, yes.

DE SOUSA: I'm sure your son knows it.

TRUMP: He knows all about it.

DE SOUSA: And so don't forget if you ever go to Russia during the championship, don't forget Portugal is still there, and wanting to win.

TRUMP: They are doing very well.


TRUMP: They say he is the best.

DE SOUSA: Doing very, very well.

TRUMP: And so tell me, how good a player is he? Are you impressed?

DE SOUSA: I'm very much impressed. He is the best player in the world. So in a sense, well, I think has been a success the championship.


DE SOUSA: No doubt about it for the world.

TRUMP: So will Cristiano ever run for president against you? You wouldn't win.


DE SOUSA: You know something I must tell you, Portugal is --


DE SOUSA: -- a little different than the United States.

TRUMP: That's right.

Go ahead.

UNIDENTIFIED REPORTER: Mr. President, when did you learn about Justice Kennedy?

TRUMP: About a half hour ago. He came to the White House and we had a wonderful discussion just prior to meeting the president. And really had a very deep discussion. I got his ideas on things, including, I asked him if he had certain people that he had great respect for that potentially could take his seat, which is a very hard seat to fill. So we talked about different things. And he was here for about a half an hour. I don't think you folks saw him come in and out, did you? I'm shocked. They did a great job. That is a shocker. That is a shocker. But, yes, we had a -- he just left a little while ago just prior to meeting the president.

UNIDENTIFIED REPORTER: Can you tell us who he recommended?

TRUMP: No, I won't do that. But he has -- you know, there are certain names that are just outstanding. Names that you already know, to be honest with you. Names that you know that are outstanding, highly respected.

Names that you would know, President.

And we'll be looking at them, we'll be looking at some others. But they will come from the list of 25 people.

UNIDENTIFIED REPORTER: Mr. President, it is an election year. Would you have the consideration of holding that spot open until the makeup of Congress is determined come November?

TRUMP: I haven't really thought about that. I think you want to go as quickly as possible. It is a process. But haven't really thought about that. But we had a big day yesterday. We had great decision today in terms of what was just released by the Supreme Court yesterday, obviously, with the travel ban was extremely big. And we had some tremendous elections in South Carolina, from my own stand point, the South Carolina governor, McMaster, it's a big win. And as you know, I was very much involved in New York with the Congressman Donovan. So we're very happy. This was a good few days.

And now I get to cap it off by meeting with the president of Portugal. And Portugal has been very important to our nation.

You're right, we have when a million and a half people from Portugal here. So that is very important.

UNIDENTIFIED REPORTER: (INAUDIBLE QUESTION) TRUMP: No, I want them to do what they wanted. The problem we have,

and I told them this morning, I said, hey, pass it if you can. I want them to do what they want.

We have a big immigration bill, like everybody does, like you are talking and everybody talks about immigration now I think more than ever before.

I told them a few hours ago, I said, look, pass something or come back with something that would be a derivation, but get something that you want. The problem we have is we need Democratic votes in the Senate and that is why I don't get overly excited with the House bill because it won't pass in the Senate. You won't get the Democrats to vote for anything. If we gave them 100 percent of what they wanted, and then doubled it, they still wouldn't pass it. Because they think it is a good election point. I think it is good for us because I think strong borders -- I don't even know how you feel about that -- but I think strong borders and no crime is a great election point for us. So I told them two hours ago, I said do what you want. And ultimately we'll come to something. And perhaps it will be after the election, maybe it will be before. But as of this moment, Democrats are not going to vote for anything because they really are resisting or obstructing. OK?

Thank you very much.



TRUMP: I think we'll be talking about Syria. I think we'll be talking about Ukraine. I think we'll be talking about many other subjects. And we'll see what happens. You never know about meetings what happens, right? But I think a lot of good things can come with meetings with people. We had great meetings with President Xi of China. Every place I've been, we have had great meetings. So maybe something positive will come out of it.

[14:50:19] UNIDENTIFIED REPORTER: What about defeating Joe Crowley?

TRUMP: That was a shocker. For Crowley to lose that election. That was a shocker. I was surprised. Everybody was surprised.

We had somebody that had been in there for many years, Mr. President, and I think he probably took it for granted.

And I can't say that I'm disappointed because I was never a big fan. But he lost his election. Probably shouldn't have lost his election. Maybe you get a little complacent. And that does happen. You do get complacent. He lost. That's a big lost. That's an amazing -- that was a shocking loss. But it is what it is.

Thank you all very much. Thank you.



TRUMP: They are doing great. By the way, the steel industry is doing great. The tariffs have been incredible and the steel industry is doing great and our country is doing great. You're seeing the results. The numbers coming from the companies are far beyond what anybody ever thought possible. We're doing really good. But we have to have fair trade deals and we're working on really fair-trade deals.

We're working with your representatives on fair trade deals.

DE SOUSA: (INAUDIBLE). That is good news.

TRUMP: Yes. Yes.

DE SOUSA: That's good news.

TRUMP: Thank you, everybody.


TRUMP: It will be very good. Thank you everybody. Thank you very much.


UNIDENTIFIED FEMALE: Let's go. Keep going. Let's go.

BALDWIN: All right. Jeffrey Toobin, I'm coming straight to you.

Jeffrey Toobin, put those glasses on. We'll talk about this piece of news here. You are the go-to on all things Supreme Court. The president making some comments on Justice Kennedy. Of course, the big news, he will be retiring effective July 31. Did you see that coming?

JEFFREY TOOBIN, CNN SENIOR LEGAL ANALYST: Well, he is 81, and there was speculation that he would retire ever since President Trump was elected. Anthony Kennedy made his name, became involved in politics through Republican politics when he worked for Governor Ronald Reagan in California. So he had some decisions that were not consistent with contemporary Republican politics, but he has always been a Republican. No doubt about that. So the fact that a Republican was finally in office at a time that he was nearing the usual time for retirement age for Supreme Court justices, it certainly led to a lot of speculation. I didn't think it would be this year. I thought it would be next year. But I wouldn't characterize this as a shock, but when the news happens, I guess like so much we've had during the Trump presidency, I guess I'd call this a shock but not a surprise.

BALDWIN: So I was talking to two guys who had clerked for Justice Kennedy. Obviously, they had respect for the man, but they were wondering why this year and specifically just several months out of the midterm election. Now, the word we get from the White House, they are hoping to get this thing sealed up and have the next justice before November. But why do you think now?

TOOBIN: There's never an apolitical time for a Supreme Court justice to retire. Stakes are so enormous that it is always going to be a deeply polarizing and important issue. This year it is a midterm election. Next year by the time he might have retired you would have had presidential candidates already declared. I mean there was never a perfect time. And he is would on. Look old. Look, he is 81. Most people who are 81 are not working at demanding full-time jobs which is what being a Supreme Court justice is. Donald Trump is a Republican president. He appointed Neil Gorsuch, who was a clerk of Anthony Kennedy. I think that the fact that Donald Trump nominated someone that Kennedy thinks is an appropriate choice for the Supreme Court is something that argued in his mind in favor of retiring. If Donald Trump had nominated Jeanine Pirro or some preposterous choice, I think Kennedy might have thought twice. But Neil Gorsuch is conservative and a very qualified Supreme Court justice. So all of these factors combined. And also Justice Kennedy's wife, Mary, has had some health issues. I went to Austria with Justice Kennedy more than a decade ago. He loves to travel. He is very interested in international law, judges around the world. This is something that I'm sure he will continue his interest in. I think he just thought it was time. However, I mean the very important alternative consideration is some of the issues that Justice Kennedy is most closely associated with, the protection of Roe v. Wade, especially gay rights. No justice has dominated one area of law the way Justice Kennedy has dominated gay rights. All of that is very much in jeopardy now that Donald Trump will name his replacement.

[14:56:13] BALDWIN: That's what I want to ask you about. And he has been this key vote, same-sex marriage, access to abortion. And you hear the president say, I listened to Justice Kennedy, but what is the likelihood that someone of the Justice Kennedy ilk is nominated versus someone much farther right?

TOOBIN: I think zero. I think the chance that there's someone in the mold of Justice Kennedy nominated is zero. There will be -- this will be a much more conservative justice. I think we saw that with Neil Gorsuch. Gorsuch is allied with Justice Thomas on the most right-ward part of the Supreme Court. And that's what we'll get. You look at the 25 names on his list, that's what we'll get. You know, there's sort of this mythology that has arisen around Justice Kennedy that he is a moderate. He is not really a moderate. I mean, he has been a conservative in almost every area. Remember, he was one of the votes in Bush v gore that made George Bush president. He is the author of Citizens United which is the decision that has basically opened the door too deregulating all of American politics. It is true he has been a stalwart defender of gay rights. He has voted in favor of Roe v. Wade. He has defended affirmative action for African-Americans in certain circumstances. But if you take those three areas away, and to a certain extent the death penalty, he is a conservative justice. And I think he saw that elections have consequences. Donald Trump will be president for quite a while longer. It was time to go.

BALDWIN: Jeff Toobin, don't go too far.

I want to bring in one are more voice, Ken Cuccinelli, legal analyst, former Republican attorney general for the state of Virginia.


agree with almost everything that Jeffrey just said. But let me drive one point home.


CUCCINELLI: And that is that Justice Kennedy has sat on the bench for some time now with one of his former clerks who he saw fit to hire in the person of Neil Gorsuch. And just yesterday in the travel ban case, we saw Justice Kennedy did a bit of a judicial finger wag at the president for some of his harsh language. But he joined the majority in upholding the presidency's statutory authority to take very strong action under the Immigration and Naturalization Act. And I think Justice Kennedy is confident, even with his occasional disagreements with the president, which he voiced in that concurrence, that the president is going to nominate someone of Justice Gorsuch's quality. And I think when you think of the institutional reputation of the court, which is so important to Justice Kennedy, that is a big factor in his willingness to retire now. And I think that can't be overstated.

And I also agree with Jeffrey that you will see somebody off that list who is traditionally very similar to Neil Gorsuch. And it will add an element to the fall elections that is going to now dominate, dominate with vast swathes of the electorate, as it did in 2016.

BALDWIN: Let's talk about that. No. Let's talk about that.

CUCCINELLI: Yes, very important.

BALDWIN: We were just hearing from the White House, they are hoping to have next Supreme Court justice go through and be --