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Supreme Court Justice Anthony Kennedy Retiring; Will New Supreme Court Overturn Roe vs. Wade?. Aired 3-3:30p ET

Aired June 27, 2018 - 15:00   ET



BROOKE BALDWIN, CNN ANCHOR: No, let's talk about that, because...


BALDWIN: ... we were just hearing from the White House. They are hoping to have this...


BALDWIN: ... next Supreme Court justice go through and be in place by the midterms.


BALDWIN: But, you know, do you think, either way, I mean, the notion of not having that person maybe in place would be the catalyst to get more and more folks to turn out in November?

How do you see that playing in terms of turnout for the midterms?

CUCCINELLI: It would increase turnout, but it is going to do it on both sides either way. So I don't know there is any competitive advantage.

But let's start by looking back one appointment, so, the Gorsuch appointment. You will recall that when Neil Gorsuch was nominated, the filibuster was available for Supreme Court justices. And Neil Gorsuch was so unarguably well-qualified that, when the Democrats took an approach that might have been reasonable for a radical -- what was the example Jeffrey used? Pirro or something like that.


CUCCINELLI: Jeanine Pirro. Thank you, Jeffrey.

BALDWIN: The voice of Jeffrey Toobin.

TOOBIN: But it wasn't reasonable for Neil Gorsuch.

And it was one of the biggest strategic political errors in our lifetime was the Democrats, knowing full well that, to please their base as they during that spat, that they were going to lose the filibuster, and now the swing vote of the court is not filibusterable. And this -- I do believe this appointment will go through before the

election. And if you are Joe Manchin, or you're Jon Tester or you're Heidi Heitkamp or Claire McCaskill or Joe Donnelly, this is a hard vote. Do you vote to please your Trump voters, or do you vote to please your base?

And that is a really tough line for them to walk. It is not a tough line on the Republican side.

BALDWIN: Let me ask...


BALDWIN: Go ahead. Go ahead, Jeffrey.


TOOBIN: That is a very good point.


TOOBIN: But I think sometimes we talk about Supreme Court too much in abstractions, about dignity and who is qualified and who is not qualified.

Let's talk facts. Let's talk about what America is going to be like that is different. You are going to see 20 states pass laws banning abortion outright, just banning abortion, and because they know that there are now going to be five votes on the Supreme Court to overturn Roe v. Wade.

And abortion will be illegal in a significant part of the United States in 18 months. There is just no doubt about that. And that is why these seats matter so much, because they -- one of my favorite lines about the Supreme Court was by Justice Robert Jackson, who served on the court in the 1940s and '50s.

And he said, we are not final because we are infallible. We are infallible because we are final. Somebody has the last word, and here is the Supreme Court, and Roe v. Wade is doomed. It is gone because Donald Trump won the election and because he's going to have the chance -- because he's going to have the chance to appoint two Supreme Court justices.


Just still sitting with me, the gravity of what you just said. How quickly do you think that those changes will come on the state level?

CUCCINELLI: Yes, first of all, I don't recall with Jeffrey...

BALDWIN: You don't?

CUCCINELLI: ... that there is going to be 20 -- not 20 states. There will be some states, but they will be in a very distinct minority. You will see this now as an open political debate. People have run

for governor. I have run for governor in my state. And while I didn't do this, lots of people have. When this question has come up, they say, oh, that is a federal issue.

Well, all overturning Roe v. Wade does is, as Jeffrey points out, it returns it to the states. So then it suddenly becomes a state issue in 50 states. And it is a part of every state election.

And it becomes actually more important in those state races than it is today, and that is if it happens. I don't see the 18-month time schedule of Jeffrey Toobin happening, but it is possible sometime in the foreseeable future.


OK, Gloria Borger, let me bring you in also just back into this whole conversation. And we were talking -- on the Democratic front.


BALDWIN: What are you hearing from your Democratic sources?

BORGER: Well, Democrats -- Democrats are calling Mitch McConnell a hypocrite.

They are saying that if you thought it was too close to an election in 2016 to make a decision about a Supreme Court justice, then we're four months away from an election now, and it is too close.

I mean, as Ken Cuccinelli was saying, they are well aware that they have got Democrats in the Senate running in red states who are going to have very tough votes on a Supreme Court justice.


So, what the Democrats are saying now is, Mitch McConnell, the standard that you set for Merrick Garland ought to be the standard that you have now, because we're closer to an election than we were.

CUCCINELLI: Yes, and can I...

BORGER: And they can say they're -- and they're can say they're Democrats.

I know what you're going to say, that it is not a presidential election, but this is the argument.


BORGER: This is the -- oh, OK.

This is the argument they are making. And they are trying to hold McConnell up here. And I think that there is a school of thought that like let's just get it over with and move on. But there are lots of Democrats who are saying, not so fast, not so fast. Do they have any leverage? I don't think so.


TOOBIN: Yes. I mean, what is their leverage?

BALDWIN: Go ahead, Ken.


BORGER: They don't have any leverage. They gave it away. They gave it away.

CUCCINELLI: They gave it away.


TOOBIN: They didn't give it away.

See, I think that is a fake issue, that the Democrats gave it away.

CUCCINELLI: OK. They threw it away.

TOOBIN: That the Democrats had the filibuster, and they threw it away on Neil Gorsuch.

They were -- the Republicans were going to get rid of the filibuster whenever the Democrats invoked it...

BORGER: Well, that is true too.

TOOBIN: ... whether this nomination or the next nomination.

So the idea that the Democrats in the Senate sort of made this terrible mistake by forcing the Republicans to get rid of the filibuster, I think that is a phony argument, because the Republicans were going to get rid of the filibuster to confirm Neil Gorsuch or to confirm whoever this is going to be.


BORGER: So, you're not blaming Harry Reid for any of this.

TOOBIN: No. I don't think it matters a bit.

CUCCINELLI: Guys, that is just not correct.

I mean, you have got some stodgy Republicans there who really don't want to change many things, including the majority leader, Mitch McConnell. And if -- as I said earlier, if they were filibustering a clearly unreasonable nominee, then they would have been in a better position.

But they did it on Scalia's seat when the ideological swing of the court was not at risk. And by doing that for such a very reasonable and qualified appointment as Neil Gorsuch, they made a major strategic mistake. Let's say they hadn't done it then, and Jeffrey is correct, and the

Republicans just pitch it now. Well, now you are making them pitch it in the face of an election. Now do you think there is a turnout difference between the two sides? You bet your sweet patootie there is. And the Democrats threw away that opportunity.


BALDWIN: Hang on. On that -- on the sweet patootie note, I want to ask all of you to please stand by.


BALDWIN: Never thought I would hear that come out of your mouth, Ken Cuccinelli.

But, as a fellow Southerner, I can't be totally surprised.

Let's go to Capitol Hill. Let's go to Manu Raju, because as we're talking about D's and R's, you're there. You're getting reaction from members of Congress on this big piece of news today that Justice Kennedy is retiring.

What are they telling you?

MANU RAJU, CNN SENIOR POLITICAL CORRESPONDENT: Well, Democrats in particular are shaken.

Senator Blumenthal of Connecticut, a Democrat who sits on the Senate Judiciary Committee, said this is a -- quote -- "earth-shattering event" that is going to reshape consequences of the Supreme Court for the rest, a majority of the rest of our lifetimes.

And some top Democrats are saying that this nomination should be held over until after the midterm elections, based on the similar standard that Senator McConnell espoused during the 2016 presidential race by holding open the vacant Supreme Court seat after President Obama nominated Merrick Garland for that seat.

Dick Durbin, the number two Democrat issuing a statement, saying that McConnell set a new standard by giving the American people their say in an upcoming election before court vacancies are filled. That's why they should wait until January to consider a nomination.

But already, Brooke, Republicans are rejecting that notion. They are saying it is much different, that this is a midterm election, not a presidential election. They're saying that that is not the similar standard.

And Mitch McConnell made very clear on the Senate floor just earlier they're going to move forward on this, this fall. There's going to be a vote on a replacement. And also they can do it on their own, after McConnell changed filibuster rules last year allowing Neil Gorsuch to be confirmed by essentially a party-line vote.

And that will be the same standard here as well. There are 51 senators on the Republican side, 50 if John McCain continues to be absent. That means, if all 50 stick together, they can ultimately confirm whoever President Trump nominates to the bench.

So, that is the big question going forward, whether or not the Republicans can stay united and whether or not any of these red state Democrats in some difficult races who are trying to appeal to moderate voters will ultimately cross the aisle, vote with the Republicans on this, because they too will be feeling a lot of pressure from their base that will wait to fight very hard to deny a replacement for Anthony Kennedy, particularly a very conservative replacement that is going to really rile up the Democratic base as well.

So this is really reshaping this Senate here for the rest of the year. Ultimately, this is going to dominate action going forward and dominate the landscape for the midterm elections heading into November -- Brooke.

BALDWIN: Sounds like you are hearing a lot of what Gloria Borger was hearing as well. Manu, thank you so much up on the Hill for us.


And just looking ahead in this process and who could take that next seat on the nation's highest court, let's go to our Supreme Court reporter, Ariane de Vogue.

And, Ariane, we heard the president. He was sitting there at the White House a bit ago saying we remember the list that was put out during the campaign, the 20, 25 names. Who could be on the short list here?

ARIANE DE VOGUE, CNN SUPREME COURT REPORTER: Well, the thing is, this president did something that no other president has done. During the campaign, he put out a list.

And that is when the vetting began, right? So the list we know, and it is younger people and more conservative, because that is key here. Not only will the president be able to replace Kennedy with somebody more conservative, but it is going to be somebody younger.

And on the top of the list are two former Kennedy clerks, right? The first one is Brett Kavanaugh. He is a judge here in Washington. He is 53 years old. And he spent some time on the Starr investigation. And I have seen him in the court. He has come to oral arguments a couple of times this term. He is very active.

Another one is Ray Kethledge, another Kennedy clerk. He is only 51 years old. He sits on the Sixth Circuit. And, interestingly, he had an opinion, that big digital privacy case that we did a couple of weeks ago, that was reversed by the Supreme Court. That was his opinion.

And another one is Thomas Hardiman. And Hardiman is interesting, because he was the runner-up, many people say, for Gorsuch's seat. President Trump really likes his life story. No Ivy League. He spent time driving a cab to get his way through school. So he is a big contender.

And finally a woman named Amy Coney Barrett. Now, she is somebody that Trump just nominated. And during her confirmation hearing, things got a little heated with Dianne Feinstein. And, afterwards, some of the judge's supporters said that Feinstein was going after her on her religion as sort of a litmus test.

So that is right now the working list. There's a few others. But it seems right -- last week, when I was calling around wondering, it seemed like Kavanaugh was at the top of the list for now. And he is a former Kennedy clerk.

BALDWIN: Ariane, thank you.

And let me put those names back over to Jeff Toobin.

What do you make of those three judges? Sound about right to you as far as the short list?

TOOBIN: That does sound about right.


TOOBIN: I think -- on the screen, I don't know. I couldn't tell if Ariane mentioned Amul Thapar, who is a new judge.


TOOBIN: He's also a new Trump nominee to the Seventh -- to the, I believe, Sixth Circuit Court of Appeals...


TOOBIN: ... who was a protege of Mitch McConnell.

He would be the first South Asian on the Supreme Court, also in his late 40s.

But -- and Amy Barrett, I think, is a very likely possibility, particularly if the president has the chance to fill Ruth Bader Ginsburg's slot. She has been very active in issues relating to Catholicism, legal issues relating to Catholicism.

The -- you know, all these justices, all these potential justices are all very conservative. They're all more conservative than Kennedy.

That -- the way Donald Trump used that list during the campaign was to show the conservative movement, hey, I'm one of you.

BORGER: Well...

TOOBIN: I may be a libertine from New York City, but I'm going to appoint judges who reflect the values of the evangelical conservative movement.

CUCCINELLI: That's right. TOOBIN: And the president has kept his word on that.

BORGER: Right.

TOOBIN: These are across-the-board conservatives. Now, the question is whether the rest of the country wants to live in a world that judges like that supervise.

That is a separate question. But in terms of, are -- is the president being candid in telling us what kind of judges he is going to appoint, I think the answer is clearly yes.


BALDWIN: Go ahead, Gloria.

BORGER: And I think that, during the campaign, Donald Trump had to prove himself, because, of course, at one point in his career, he was pro-choice, and then he became pro-life.

And he had to prove to conservatives that he was conservative. He had to prove to evangelicals that he would represent them on the issue of abortion. And he did that. And I think there is no doubt that he will do it again.

I should also add, with one of those choices is a United States senator, Mike Lee, who today told our colleagues on the Hill that if he was chosen, he would not say no. Aside from the double negative, that means that he would say yes.


BORGER: So, he also put himself -- he also put himself out there.

And there is no doubt in my mind -- the way Donald Trump has governed is to play to the base. And so there is no doubt in my mind that he will continue to do that when he picks the next Supreme Court justice, because he doesn't want to have to wait and see, what does someone like a Justice Kennedy do?


He wants to know when something goes to the court, like the travel ban, he is going to win, because he likes to win.

TOOBIN: And if I can just -- the one point I just want to emphasize here is, we shouldn't talk about the Supreme Court exclusively in these abstractions about, you know, dignity and all that.

What this appointment means is that, if you are in the -- if you are a woman in the state of Texas, you are going to have to go elsewhere to get an abortion soon.

If you are in -- I said 20 states. Maybe it is only 10 states. But there will be large parts of United States where abortion is illegal in the relatively near future because -- because of this appointment and because Donald Trump -- or Mitch McConnell, as many people believe, stole the appointment of Merrick Garland and replaced it with Neil Gorsuch.

But that -- those are the stakes here. This is not an abstract thing about who is a strict constructionist. The issue is, is abortion going to be legal or illegal in major parts of the United States?

BORGER: Right.


BALDWIN: Hang on, guys.

Let me read this tweet. This is from a Democratic senator. This is Scott Blumenthal. And he tweets -- or -- excuse me -- from Richard Blumenthal.

He tweets: "Earth-shaking and gut-wrenching. Departure of Kennedy means a historic challenge is ahead. The president must appoint an open-minded and fair jurist in Justice Kennedy's mold."

And we talked about that a bit ago, because I remember, Jeff Toobin, I was asking, well, do you think that there will be somebody of Kennedy's ilk, mold?


BALDWIN: And I hear Ken says no. And that's what Jeff said.

Go ahead, Ken.



As we were talking about earlier, the president has exercised a formula in the judicial appointments that comes right out of his campaign.

And I must say that, just stepping back from the Supreme Court and the presidency and looking at our whole system, I find that an extremely accountable way to run for office.

He told us what he was going to do in this area. And I don't think -- while I certainly wouldn't characterize the likely -- the way this would play out the way Jeffrey did, nonetheless, this was part of the presidential election.

And it will be part of this fall's election. And whatever rhetorical pretzel Mitch McConnell was turning himself or will turn himself into, this vote will happen before Election Day, one, because the president wants it, but, more importantly, because to do otherwise steps in the way, just as McConnell did back with Garland, but not in a way that helps him politically this time.

It is going to be very difficult for those 10 senators, Democrat senators, defending from states Trump won on this issue before Election Day. It is going to happen before Election Day.


BALDWIN: Is it feasible to get this thing wrapped up? Is it feasible to get this thing wrapped up, just quickly, Jeff Toobin?


BALDWIN: Yes. Yes. Yes.

TOOBIN: Absolutely. Absolutely.

BALDWIN: Go ahead.


BALDWIN: Go ahead, Gloria.

TOOBIN: Mitch McConnell -- Mitch McConnell is going to keep the Senate in session 24 hours a day if that is what it takes.

BALDWIN: Through the summer.

CUCCINELLI: And it is about time.


LAURA COATES, CNN LEGAL ANALYST: If I can be heard on a point, I would appreciate it, because I would like to make sure that people...

BALDWIN: Oh, Laura Coates, yes, hi.

COATES: Thank you. Hi.

I would like to make sure that people understand one aspect of this. Simply because Justice Kennedy is stepping down and is resigning essentially from his life tenure does not automatically mean that Roe v. Wade will be immediately overturned.


COATES: Remember, we mocked President Trump when he was on the campaign trail because he had a fundamental misunderstanding of what it takes to overturn precedent, when the role of the court is to in many ways promote what is called stare decisis, meaning they will follow what has been done before.

Now, it may be true there has been death by 1,000 cuts in that particular area, but there will still have to be a concerted effort across different states to, one, restrict or bring different legislative acts that will restrict the right of a woman to choose.

But the overarching theme of Roe v. Wade has always been about the right to privacy in the 14th Amendment. Those fundamental principles may still be intact. And I have to say I think that Blumenthal got it precisely right when

he says there is a historic challenge ahead. But the challenge will be not just in simply trying to figure out what President Trump has promised his base, but the role of an autonomous court, which we all would like, that don't necessarily broadcast what they are going to do.

And, frankly, Justice Kennedy, for what his legacy really imparts, aside from a whole host of areas, has been that he has been a departure as a swing vote.


BALDWIN: Hang on a second.

Speaking of the Democrats, here is Minority Leader Chuck Schumer.


SEN. CHUCK SCHUMER (D-NY), MINORITY LEADER: This is the most important Supreme Court vacancy for this country in at least a generation.

Nothing less than the fate of our health care system, reproductive rights for women, and countless other protections for middle-class Americans are at stake.


Will Republicans and President Trump nominate and vote for someone who will preserve protections for people with preexisting conditions? Or will they support a justice who will put health insurance companies over patients or put the federal government between a woman and her doctor?

The Senate should reject on a bipartisan basis any justice who would overturn Roe v. Wade or undermine key health care protections.

The Senate should reject anyone who will instinctively side with powerful special interests over the interests of average Americans.

Our Republican colleagues in the Senate should follow the rule they set in 2016 not to consider a Supreme Court justice in an election year.

Senator McConnell would tell anyone who listened that the Senate had the right to advise and consent, and that was every bit as important as the president's right to nominate.

Millions of people are just months away from determining the senators who should vote to confirm or reject the president's nominee, and their voices deserve to be heard now, as Leader McConnell thought they should deserve to be heard then. Anything but that would be the absolute height of hypocrisy.

People from all across America should realize that their rights and opportunities are threatened. Americans should make their voices heard loudly, clearly, and consistently. Americans should make it clear that they will not tolerate a nominee chosen from President Trump's preordained list selected by powerful special interests who will reverse the progress we have made over the decades.

I yield the floor.

BALDWIN: All right, so, Leader Schumer there again saying we should have X, Y and Z.

But back to our original point, Gloria Borger, over to you, just it's the 51 votes. And what leverage do Democrats even have? I guess he has to say something.


BORGER: Well, they don't have any leverage.

I think what he is trying to do is outline the stakes that we have all been talking about. And he, of course, talked about the Affordable Care Act, talked about preexisting conditions.

BALDWIN: Roe v. Wade.

BORGER: Talked about Roe v. Wade, as we've been talking about, and also said that the list that the president put out during the election was a list that was put together by special interests, which is true, because it was conservative groups who handed the president a list of people and said, well, these judges would be OK by us. They pass our litmus test.

So, the Democrats are going to fight. But Chuck Schumer is a realist here. And he knows that all he can do is make his political arguments right now because he doesn't have the filibuster.

BALDWIN: Laura, what do you think?

COATES: Well, all politics is local here.

And when the federal Congress is essentially hand-wringing and perhaps conceding that they don't have the votes, they are still trying to signal to people that these will return to states' issues. If there is an overturning after a lengthy process to get it in front of the Supreme Court to overturn precedent on this level, as opposed to narrowing it in some way, he knows he has to signal to people on these very issues about particularly Roe v. Wade and other areas about how important it is to think about local elections.

Having said that, however, there is still an opportunity for people to view this case and view Anthony Kennedy's retirement in a way that preserves some level of autonomy for a co-equal branch of government, that being the Supreme Court.

Now, I'm not trying to be overly naive, glass-half-full when I say this. I'm simply saying that, as the democratic system works, we are supposed to be able to have these vigorous debates during the confirmation proceeding to assess whether the people will rubber-stamp every policy of the executive branch, which is not the intended pursuit of any Supreme Court justice.

And many have already had the opportunity to go against the original appointment that was made, Kennedy being one fine example of just that.


BALDWIN: Yes. Yes. Yes.


BALDWIN: And, Ken, but let me just mention for all -- for everyone watching, just full transparency, I think we should mention, you work to elect conservative senators.

Go ahead.

CUCCINELLI: That's right. I run the Senate Conservatives Fund.


CUCCINELLI: And I will tell you that at no point in the four-and-a- half years I have been doing that have our members prioritized anything above getting good constitutionalist judges.


And, apparently, the Federalist Society supporting the original federalist view of the Constitution is somehow special interest group.

It is funny how the Constitution is a special interest group to Chuck Schumer. And he named a bunch of the insurance companies, the medical profession. He talked about outcomes. He talked about outcomes. He wants a judge that doesn't care what the law is, but wants a judge that will institute his outcomes regardless of the law.

That is a major difference between what I expect we're going to see from President Trump, like a Neil Gorsuch, who, by the way, did not rubber-stamp this president -- he ruled against him a number of times in the last year -- and what Chuck Schumer would want.

That is a stark difference, and it will play out in our elections this fall.

BALDWIN: All right, everyone, stand by, stand by.

We have got to get a -- we're getting our first break in here. We have been covering this breaking news.

If you're just joining us, we're talking about Supreme Court Justice Anthony Kennedy will be turning 82. He has just announced, sent a letter to the president, visited the White House, he will be retiring as a justice on the U.S. Supreme Court effective end of July.

What this means moving forward for this court. Will we have a new justice before the all-important midterm election this November?

I'm Brooke Baldwin. You are watching CNN.