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Trump's Opportunity for Supreme Court Pick Igniting a Battle. Aired 7-7:30a ET

Aired June 28, 2018 - 07:00   ET



SEN. CHUCK SCHUMER (D-NY), MINORITY LEADER: -- Republicans in the Senate should follow the rule they set in 2016.

[07:00:09] UNIDENTIFIED MALE: It's just not close to a presidential election. We should go ahead on this.

GLORIA BORGER, CNN CHIEF POLITICAL ANALYST: The Democrats are facing an uphill battle.


UNIDENTIFIED FEMALE: This is an incredibly important moment.

UNIDENTIFIED MALE: I hope the president chooses well. I have no reason to think he won't.

UNIDENTIFIED MALE: A slightly more conservative nominee could produce leaping changes.


ANNOUNCER: This is NEW DAY with Alisyn Camerota and John Berman.

JOHN BERMAN, CNN ANCHOR: Welcome to your NEW DAY. It is, what, Thursday at this point. Alisyn is off. Erica Hill joins me. John Avlon is here, as well. We forgot what day it is, because there's so much news it is clouding our vision.

Raw political power. The results of raw political power. For the past two years, the Republicans gamed the Supreme Court nominating process because they could. Now the future of the Supreme Court's in their hands and really, nothing the Democrats can do to change it.

It is nearly impossible to describe the magnitude of Justice Anthony Kennedy's retirement. With this one pick, with this one nomination, President Trump can reshape the lives of Americans for generations to come. His choice will have a serious impact on issues including abortion, the death penalty, and affirmative action.

HILL: Senate Majority Leader Mitch McConnell wants a vote on President Trump's nominee to happen before this fall. Democratic leaders say having to vote before the midterms would be the height of hypocrisy, given the GOP's bid to block President Obama's pick in 2016 ahead of the presidential election.

We begin our coverage with CNN's Abby Phillip, who is live at the White House.

Abby, good morning.


It is going to be a long, bitter fight over the successor to Justice Anthony Kennedy. But it has handed President Trump a major victory on the eve of the midterm elections, and it could potentially shape his legacy as president. But it will also shape the United States for a generation to come.


TRUMP: We have to pick a great one. We have to pick one that's going to be there for 40 years, 45 years.

PHILLIP (voice-over): President Trump celebrating the chance to appoint another Supreme Court justice after Justice Anthony Kennedy announced his retirement.

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.

PHILLIP: Kennedy was the key swing vote on a number of landmark cases, including Roe v. Wade and the legalization of same-sex marriage, where the mostly conservative justice sided with the liberal wing of the court.

ANTHONY KENNEDY, RETIRING SUPREME COURT JUSTICE: They asked for equal dignity within the eyes of the law, and the Constitution grants them that right.

PHILLIP: His retirement gives conservatives a major opportunity to tip the ideological balance of the court more strongly in their favor, potentially reshaping life in the U.S. for years to come.

SEN. BERNIE SANDERS (I), VERMONT: This is obviously an enormously, enormously important issue. Everything to do with women's rights, having to do with gay rights, having to do with solidifying the pro- corporate, anti-worker wing of the Supreme Court.

PHILLIP: President Trump vowing to select a nominee to replace Kennedy as soon as possible, referencing a list of 25 staunchly conservative candidates, six of whom are said to be on the short list.

TRUMP: We have a very excellent list of great, talented, highly- educated, highly-intelligent, hopefully tremendous people.

PHILLIP: Senate Majority Leader McConnell vowing to confirm Kennedy's replacement this fall, with the next court term starting one month before the midterm elections. SEN. MITCH MCCONNELL (R-KY), MAJORITY LEADER: The Senate stands ready

to fulfill its constitutional role by offering advice and consent on President Trump's nominee to fill this vacancy.

PHILLIP: Democrats calling for a vote to be postponed until after the midterms and accusing McConnell of hypocrisy.

SCHUMER: 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.

PHILLIP: Ahead of the 2016 election, McConnell stonewalled President Obama's Supreme Court nominee, Merrick Garland, for over eight months.

MCCONNELL: This decision ought to be made by the next president, whoever is elected.

PHILLIP: But blocking the appointment will be nearly impossible for Democrats. The Senate only needs 50 votes to confirm a Supreme Court nominee, meaning that, if all but one Republican vote along party lines, they will not need any Democratic support.

Three red-state Democrats who are up for reelection in November also voted in favor of President Trump's first nominee, Neil Gorsuch.

SEN. JOE MANCHIN (D), WEST VIRGINIA: We should go through this process. I was very disappointed the process wasn't adhered to the last time. And two wrongs don't make a right.


PHILLIP: President Trump is waking up this morning in Milwaukee, Wisconsin. He's already up and tweeting about the Russia probe in the last couple of minutes. But he's going to be having a private fundraiser there and also touring a manufacturing plant. There are expected to be some protesters protesting his recent moves on immigration outside of that private fundraiser -- John and Erica.

[07:05:13] BERMAN: All right. Abby Phillip at the White House. Abby, thanks so much.

Joining us, CNN legal analyst -- chief legal analyst Jeffrey Toobin. And Steve Cheung. He's a former special assistant to President Trump who ran communications for the White House for Neil Gorsuch's confirmation process.

Steve, welcome to NEW DAY. Welcome to this really big morning for this country, Steve.

Jeffrey Toobin, who's here with us, as well, suggests that, within the next two years, abortion will be illegal in more than a dozen states because of the retirement of Anthony Kennedy. Is he wrong, Steve?

STEVEN CHEUNG, FORMER SPECIAL ASSISTANT TO DONALD TRUMP: I think in the next three to four months, you'll see sort of hundreds of legal analysts like Jeffrey sort of talk about the legal ramifications of this nomination.

But I think what we have to remember here is that this is a political process that's going to take place.

And the president, Leader McConnell and Senate Republicans are sort of shepherding this through this political process.

BERMAN: The question, Steve, is on abortion. Is Jeffrey wrong to suggest that abortion will be illegal in more than a dozen states? Anthony Kennedy was the key vote on so many abortion decisions for decades.

CHEUNG: I think it's too early to say, frankly. I mean, certainly, there can be an extended discussion on abortion and a whole host of other issues. I think it's simply too early to say. I mean, this is a political process. The legal ramifications will sort of be hashed out through the media.

But this ultimately is a political process. And the president and Leader McConnell are shepherding this political process.

BERMAN: Jeffrey.

TOOBIN: I -- I admire Steven for his mastery of Washington gobbledygook. You know, yes is the answer. I mean, this is why the evangelical community supports Donald Trump. Do you think because they admire his private life, his three marriages? And, you know, his comments on Howard Stern. They don't care about that. They want abortion illegal.

And they're going to get that, because Donald Trump is going to appoint justices like Neil Gorsuch to overturn Roe v. Wade. I mean, that's -- that's why the evangelical community is so supportive of the president. And they're winning. I don't -- the thing I don't understand is why don't they acknowledge that they're winning?

HILL: Well, Steven, and to Jeffrey's point, Steven, having run the communications for the confirmation for Neil Gorsuch, this is obviously going to be a part of the messaging. Yes, it's -- the political process is there.

But there's the other political process that is going to be playing out until November or until there is a nominee and these hearings start. How much is abortion going to be a part of that messaging for the politics here?

CHEUNG: I'm sure -- I'm sure abortion and a whole host of other issues will be debated.

Look, going back to Justice Gorsuch and his nomination process, it was an all hands on deck effort from the White House to Leader McConnell's office, to outside groups. We sort of all dovetailed together on a singular message. And whether it's, you know, opening up discussions on a whole host of issues, I think that's the thing that sets Republicans, this White House, this president apart from what the Democrats are doing. Democrats just simply don't have a unified messages. Republicans do.

And that's why they've won on all these political battles.

TOOBIN: But what is the -- I mean, you're taking about a message, but the message has some substance to it. The message is that abortion will be illegal in Mississippi soon. I mean, that's the message. And you know, the --

CHEUNG: Well, I think the main message is that we want a justice who will be for the rule of law and not necessarily legislate from the bench. I think that's the gold standard of who the nominees are.


TOOBIN: Those are like words. Like, you know, what does that even mean? I mean, it's like, let's talk about people's lives. Let's talk about the gay couple that goes to a small motel, and the owner says, "Well, you know, my religion says I'm not going to -- I'm not going to rent you a room?" And that's OK because of the kind of judges that Donald Trump is putting on the bench. Is that gay couples, they won't be allowed to go to certain restaurants and to certain hotels, because that's what -- how life is going to change.

CHEUNG: Let's also not forget -- let's not forget that the Supreme Court issue was a major part of the 2016 election. I mean, this is what the American people voted for. And in part, this is why President Trump won the election.

TOOBIN: Exactly. Exactly.

CHEUNG: He had a clear, concise message. He has a clear, concise vision for how he -- how the Supreme Court would be under -- under his administration.

[06:10:12] TOOBIN: Steven -- Steven, you couldn't be more right. All I am saying is we should talk about what that vision is and what it means for people. Steven --


CHEUNG: Sure. Let's talk about the political process, as well. We can't overlook that, as well. I mean, it's a big part of this entire process.

TOOBIN: I know. But you keep using all of these words like "process" and Leader McConnell. All I'm trying to say is, at the end of the day, this is what the decisions mean.

It means that, if the state of New York wants to ban bump stocks, you know, the guns they used to kill all those people in Las Vegas, the Supreme Court will say, "No, you can't ban bump stocks because of the Second Amendment to the Constitution."

BERMAN: Just hang on one second, guys. Go ahead.

HILL: So, you know, as we talk about all of this, the president was asked, as we know, just after the election what would happen. Would he overturn Roe v. Wade? Here's part of what the president had to say. Here's what he told Leslie Stahl.


LESLIE STAHL, "60 MINUTES": Are you going to appoint a justice who wants to overturn Roe v. Wade?

TRUMP: Here's what's going to happen. I'm pro-life. The judges will be pro-life.

If they were overturned, it would go back to the states. So it would go back to the states.

STAHL: Then some women won't be able to get an abortion.

TRUMP: No. It will go back to the states.

STAHL: By state.

TRUMP: They'll perhaps have to go to -- they'll have to go to another state.

STAHL: And that's OK?

TRUMP: Well, we're going to see what happens. There is a long way to go. Just so you understand. That has a long, long way to go.


BERMAN: But Steve -- so Steve, isn't the answer to that just "yes"? The president says he's pro-life. He's going to a point pro-life judges. They're working off a list of judges who have been vetted and proven to be, you know, pro-life with their record there. So isn't the answer just, yes, this is what you ran on. This is what you promised the voters, you know, who supported Donald Trump to evangelical voters. So yes. Steve.

CHEUNG: Right. And those are the president's words. And -- and yes. I mean, there's no denying that these nominees are, you know, conservative in their constitutional life. I don't think there's any question that they are.

HILL: I will say, back to John's original point, do you agree that, in very short order, we are going to start seeing, in a number of different states in this country, moves to pass laws that could ultimately, of course, end up at the Supreme Court. And we could see some very important decision happen?

CHEUNG: I think that's too early to tell. I mean, obviously, there will be a discussion on this. And, you know, there will be a lengthy discussion on this. Look, we don't even have a nominee yet. So I think we're getting a little bit ahead of it.

HILL: Where we are. AVLON: But Steve, I mean -- when you were shepherding this process

through, how much was ideology a real factor for the administration? Because you keep hiding behind P.R. points.

But the core point, I think, we're asking is the scenario that Jeff Toobin gave you, could you foresee a situation where a gay couple tries to check into a motel, is denied access, and do you think that would be a good thing?

CHEUNG: I mean, you're giving me a hypothetical. I'm not -- I'm not going to answer a hypothetical. I mean, look, the president is going to choose a nominee that he feels will best reflect this country and his vision for this country.

AVLON: That means basically nothing. You're adding very little value to the conversation with that kind of pablum.

CHEUNG: No -- I'm adding substance to the conversation. I'm saying that all of this is simply just talk right now. I mean, we don't have a nominee as of right now. The president will choose someone who reflects his vision for this country and how he wants to move this country forward.

AVLON: How much is ideology a factor, from your experience with the Gorsuch nomination?

CHEUNG: It played a factor in it. I don't know if I can put a percentage on it. But certainly played a factor.

BERMAN: Jeffrey.

TOOBIN: I mean, just look at how Neil Gorsuch is voting. He is well more conservative than Antonin Scalia. Gorsuch is voting with Clarence Thomas more than any other justice. You know, this is -- it is a different world now.

And, you know -- and Steven could not be more right where he says this justice will reflect Donald Trump's view and his -- and his political positions. And all I'm trying to do is put some substance onto those words, which is talk about what that -- what those views are on the death penalty, on affirmative action.

The University of Texas will have fewer black people soon, because they are going to end affirmative action in the -- it's going to be declared unconstitutional. I mean, the University of Texas has tried to foster diversity. There have been a number of lawsuits about it. Justice Kennedy was the swing vote, saying that the diversity program at the University of Texas was constitutional.

[07:15:15] He's going to leave. They're going to bring in someone who will vote like Gorsuch and like Clarence Thomas, and there will be fewer black students at the university of Texas. That's just part of what this decision means.

HILL: Steven, part of what you point out, we've heard some things from the president. What's interesting, though, will be the words that we have heard in the past versus what the reality will be.

Now, we know a lot about this list. Right? There aren't going to be a huge number of surprises there in terms of where these nominees would fall. But we look in the same interview with Leslie Stahl. The president was asked about marriage equality, and he said very clearly here it's settled. It was settled. It's settled in the Supreme Court.

The answer is obviously not as clear when it comes to Roe v. Wade. Do you believe there's some wiggle room on positions we've heard from the president in the past based on on your experience and the conversations that were had going into the confirmation of Neil Gorsuch?

CHEUNG: Look, I don't know if there is, you know, quote unquote, wiggle room, but I mean, there's obviously an opportunity for expanded discussion. And I think that's what everyone appreciates, is that, look, we may not overturn decisions. We may not, you know, overturn any decision.

But there's a case to be made that there will be a decision, an open discussion from all sides throughout this process. And I think that's ultimately what the American people want. They want an open and honest discussion. And, look --

TOOBIN: And --

BERMAN: Go ahead, Jeffrey.

TOOBIN: Well, if I could just preview this open discussion, what the open discussion is going to be is the senators will ask this nominee a bunch of questions, and then the nominee will say, "Well, I can't discuss that, because it might come before the court." So there's not going to be any open discussion.

All the discussion goes on in private when you're -- during the vetting process. Once the nomination process starts, there will be no open discussion at all.

BERMAN: And Steven, as you look at this list -- and you know this list intimately well, given that it was put together during the campaign, and it's something that was used during the nomination of Neil Gorsuch, something that they're looking at now.

This is, you know, people who could be this group of people up on the screen right now. It could be, you know, top of the list to be the pick. Any of these people? Do you have any reason to believe that any of these people does not want to overturn Roe v. Wade?

CHEUNG: I don't have any reason to believe so. But I mean, look --

BERMAN: But I just want to say to you, and we're not arguing. Because actually, we all want the same open discussion you want. And that discussion will take place. But in the spirit of transparency here --

CHEUNG: You're asking me hypotheticals, and -- I can't answer hypotheticals.

BERMAN: -- the discussion is --


BERMAN: There is nothing hypothetical about that list. I'm asking you if any of them --

CHEUNG: But I'm saying, like, there's a -- there's going to be a discussion. There's going to be --

BERMAN: Own the fact that the reason these judges are on this list is because of their positions and the way they have ruled in the past and their beliefs. And among those beliefs --

CHEUNG: Certainly. On a whole host of issues.

BERMAN: Right. And the issues that are most important to many of the people who ended up voting for Donald Trump, particularly the evangelicals, were these issues that we're talking about, including abortion. I just don't think there's any debate about that. Do you?

CHEUNG: No. There's -- there's no debate about that.

Look, the Supreme Court issue was such a big issue during the 2016 campaign, as you guys know. Polling shows that. And President Trump -- President Trump owes the victory towards, you know, having a clear, concise message on the Supreme Court issue. And that's what helped him get the victory.

TOOBIN: Steven, all I'm trying -- all we're trying to do is you keep saying there is a clear, concise message. What is the message? The message is that Roe v. Wade will be overturned. That affirmative action will be illegal. That gun control is illegal.

CHEUNG: We're going to have a nominee that respects the rule of law and won't legislate from the bench. I think that's the gold standard. You saw it from the Gorsuch nomination. You saw it back from Roberts.

I mean, we're not going to nominate anyone who will legislate from the bench.

AVLON: Steven, in your experience, was there a certain Supreme Court justice that the president particularly admired that he had in the back of his mind as a model when he picked Gorsuch?

CHEUNG: I haven't had discussions with the president about that.

BERMAN: All right. Steve Cheung, great to have you with us. Thanks for playing this morning. Jeffrey Toobin, always great to have you here with us, as well.

And interesting discussion. All we're saying is lay it out there. Lay it out for the American people so that they can see.

HILL: And because in this case there is not a lot of gray area. I mean, there's a lot of what we understand. It is very black and white for a lot of these issues as to where the nominees stand. And that's precisely why they're on this list.

BERMAN: And Toobin -- Jeffrey Toobin here, just to lay one thing out here, Jeffrey Toobin is talking about the next 20 months and Roe v. Wade. Jeffrey Toobin knows more about the Supreme Court than 99.9 percent of America.

HILL: Than anybody.

[07:20:08] BERMAN: Look, the time line might wiggle here, but there's no question that states -- there are states that want to pass restrictive abortion laws. The Supreme Court will get to vote on those. And we know where the 25 people people the president is picking from stand on that. So there is every reason to believe it will play out like this.

So what can Democrats do about this? Maybe the question isn't what can they do about this? What will they do about this and how do Republicans feel about how all of this has played out? Will they just own the fact that it was raw power that put them in this position?



SCHUMER: 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. Anything but that would be the absolute height of hypocrisy.


BERMAN: Democratic leaders say fair is fair. President Obama's pick for the Supreme Court, Merrick Garland, did not get a hearing ahead of the 2016 election. So whomever President Trump picks to replace Justice Anthony Kennedy Kennedy should have to wait until the midterms. That's what the Democrats say.

[07:25:08] Now, surprisingly, Republicans say the situation is completely different.

Joining us now is Republican Senator Mike Rounds.

Senator, thank you so much for being with us. Always a pleasure to talk to you. I want to talk about that argument over process in just a second.

But first, I do want to get a sense of what it was like to be up at the Senate when word came down that Anthony Kennedy was retiring and that President Trump would get to pick a new Supreme Court nominee. Were there just cheers in the Republican cloakroom?

SEN. MIKE ROUNDS (R), SOUTH DAKOTA: Actually, we were all together having lunch, and it was jubilation. It was applause. It was an opportunity to actually make history once again. And I think we all feel very strongly that we're moving the country in

the right direction with the -- with the circuit court judges that we put in place already. And this is one more opportunity to change, for generations to come, the way that the Supreme Court interprets rather than makes laws.

BERMAN: Jubilation, applause. A generational issue here. I think Democrats would agree with you that it's a generational issue.

Is there any reason to believe -- we've been having this discussion all morning -- that one of the things that would be likely to happen, and your state would be a big part of this, presumably, going forward -- is that abortion could become illegal in many states?

ROUNDS: I think there would be further restrictions on abortions. I think there would be a direct challenge to Roe v. Wade at some point. I don't think it will come as quickly as some people think that it might. I think, though, the folks who really do want to further restrict abortions -- and I'm one of them. I am pro-life.

I think the way that we do it is going to make a big difference in terms of how we present a case to the United States Supreme Court in order to have an appropriate outcome.

BERMAN: But there's an absolute reasonable expectation. You have a reasonable expectation that it will come at some point, and it will change, based on this new justice that will replace Kennedy.

ROUNDS: I think this is a step in the right direction. I'm not sure whether this one judge will make the entire difference. But most certainly -- most certainly, I think this will be a big step in that direction, yes.

BERMAN: Now, I want to ask about the Democrats' charge here that this is hypocrisy, that Mitch McConnell, majority leader, blocked Merrick Garland from having a hearing in the Senate. There was no vote on this. That happened. There's no argument about whether that happened.

So would it be fair game for that -- for one to suggest that should happen this time, that perhaps you should wait to have a vote until after the midterm elections?

ROUNDS: It's the best argument they've got, but it's not going to fly. Because we were talking about presidential election years. They're talking about any election year. And if you suggested or if there was any reason to that, it would mean that 50 percent of the time that the Senate was in, they would not be considering these nominations. And I don't think there's any interpretation of our responsibility that would suggest that.

BERMAN: Well, and they absolutely would. They would absolutely be suggesting 50 percent of the time. But Republicans were OK with, you know, 20 percent of the time. So you're picking a different number. It's not that you saying there shouldn't be a certain number. You're just picking a different number. Let me just play you what you said at the time when you did support

Mitch McConnell's move there.


ROUNDS: My colleagues on the other side of the aisle have argued that the American people did have a voice when they elected President Obama in 2012, but that election was nearly three and a half years ago. Since that time, a lot has changed in our country, signaling a shift in Americans' views in our president and his philosophy of governing. You don't need to look any further than the 2014 elections for proof.


BERMAN: So the argument you were making is things have changed since the last election. Well, since the last election, the president's approval rating is hovering around 40 percent. He doesn't have the support of a majority of Americans. This -- the Congress is underwater in terms of your approval ratings. And more people want to see Democrats elected to the Congress than Republicans.

I'm just using your reasoning here. I'll get to my main points. I actually think both arguments are ridiculous. But by your own reasoning, hasn't opinion changed, and shouldn't Americans get a chance to weigh in before the process?

ROUNDS: Well, if you take a look at the approval rating now versus earlier, I think you'll find that his approval ratings have actually been going up.

BERMAN: It's still 40 percent. It's still not -- it's still not great.

ROUNDS: Yes, but it's a measure of then versus now. So, look, we're going to make all sorts of arguments on it. The reality is, is that when the president makes a nomination -- he'll do that shortly, we believe. We think he's got a really good list. He makes that nomination, I think the Senate will act, and it will act in a very timely fashion.

And I think all the rest of the discussion that goes with it about whether it should be delayed or not delayed, I think that will quickly leave. And then we'll start talking about the merits of the individual that will be put in front of us.

BERMAN: I don't think the discussion will leave, but I don't think it will matter. I think you're right about that. The is going to all happen fast. The president's going to pick someone. It will get a hearing. You will approve him. And this person will become a Supreme Court justice here.

I'm just suggesting that Mitch McConnell did this because he could. He did it because he could.

You supported him. The senators did, Republicans in the Senate, because you saw an opportunity to maybe get an additional conservative voice --