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U.S. Supreme Justice Antonin Scalia Dies At Age 79; 9-10p ET

Aired February 13, 2016 - 21:00   ET

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.


[21:00:03] POPPY HARLOW, CNN HOST: It is 9:00 p.m. eastern. I'm Poppy Harlow. Thank you for being with me. We begin this hour with breaking news.

The leading conservative voice on the United States Supreme Court now silent. Justice Antonin Scalia has died at the age of 79. He died in his sleep of natural causes during a trip to Texas. He was appointed by former president Ronald Reagan back in 1986. You'll remember he was confirmed unanimously at that time by the Senate 98-0. He was the first Italian-American to serve on the Supreme Court. He has served this country for the past 30 years.

President Obama and the first lady expressing their deepest condolences to Scalia family. Again, this is a father of nine, a grandfather of 28. The president spoke just moments ago spoke about justice Scalia's passing, saying that he would fulfill his constitutional duty and will nominate in due time a successor to replace justice Scalia.

(BEGIN VIDEOTAPE)

BARACK OBAMA, PRESIDENT OF THE UNITED STATES: Good evening, everybody.

For almost 30 years, Justice Antonin Scalia was a larger than life presence on the bench. A brilliant legal mind with an energetic style, an incisive wit and colorful opinions. He influenced a generation of judges, lawyers and students and profoundly shaped the legal landscape. He will no doubt be remembered as one of the most consequential judges and thinkers to serve on the Supreme Court. Justice Scalia dedicated his life to the cornerstone of our democracy, the rule of law.

Tonight, we honor his extraordinary service to our nation and remember one of the towering legal figures of our time. Antonin Scalia was born in Trenton, New Jersey, to an Italian immigrant family. After graduating from Georgetown University and Harvard law school, he worked at a law form and taught law before entering a life of public service. He rose from assistant attorney general to judge on the D.C. circuit court to associate justice of the Supreme Court. A devout catholic, he was a proud father of nine children and grandfather to many loving grandchildren.

Justice Scalia was both an avid hunter and an opera lover. A passion for music that he shared with his dear colleague and friend justice Ruth Bader Ginsberg. Michelle and I were proud to welcome him to the White House, including in 2012 for a state dinner for Prime Minister David Cameron. And tonight we join his fellow justices in mourning this remarkable man.

Obviously, today is a time to remember Justice Scalia's legacy. I plan to fulfill my constitutional responsibilities to nominate a successor in due time. There will be plenty of time for me to do so and for the Senate to fulfill its responsibility to give that person a fair hearing and a timely vote. These are responsibilities that I take seriously, as should everyone. They're bigger than any one party. They are about our democracy. They're about the institution to which Justice Scalia dedicated his professional life in making sure it continues to function as the beacon of justice that our founders envisioned.

But at this moment we most of all want to think about his family. And Michelle and I join the nation in sending our deepest sympathies to Justice Scalia's wife Maureen and their loving family, a beautiful symbol of a life well lived. We thank them for sharing Justice Scalia with our country. God bless them all and God bless the United States of America.

(END VIDEOTAPE)

HARLOW: And there you have it, President Obama talking about a larger than life president on the bench, a justice who influenced a generation. This, as you look at pictures, very poignant images from a little bit earlier as darkness fell on the nation's capital, the flag lowered to half-staff in honor of Justice Scalia.

Earlier, chief justice John Roberts issued a statement calling Scalia quote "an extraordinary individual and jurist, admired and treasured by his colleagues."

I want to bring in our Michelle Kosinski, CNN White house correspondent. What's your reaction to what we heard from the president? Very short remarks. Is that what you expected?

MICHELLE KOSINSKI, CNN WHITE HOUSE CORRESPONDENT: Yes. I didn't expect it to be this lengthy well-written talk about Scalia's life. I think that was prepared quickly and it was eloquent and I think it was appropriate, because, you know, the president knows the battle that he's facing with the nominee. Everybody wants to know about the timeline, who this could be. I think the president felt it appropriate first of all to talk life and the profound impact he had on his institution and on legal discourse in this country. And then get into a little bit about what comes next. Talking about, yes, he is going to have a nominee, that it's his duty. And ending this by saying, you know, this is not about politics. It's bigger. The issues that we're talking about here are bigger than any one party. These issues are about our democracy and about the institution, making sure that it functions.

The question mark hanging over this -- and it's a dark shadow -- is what is going to happen with this? Is this going to turn into an ugly fight and what may be President Obama's last worst battle with Congress? I mean, you look at what's happened over the last year, year and a half with some of his nominees.

I think Loretta Lynch is the example, his attorney general. The delay in the Senate confirming her. And they did finally confirm her. But this was a record delay, ten times longer than it usually takes for an attorney general. And the politics surrounding this got very ugly. I mean, one Senate Democrat called this something like base ugly politics at its worst. And you know, Antonin Scalia has - he passed away hours ago and already we're seeing some of this, you know, from both sides.

The battle has begun. I mean, it's almost a shame to be talking about this kind of battle so soon after Scalia has passed, but that's the reality of it. And you know, America needs to know where its Supreme Court is going to be, whether it's going to stand, what the makeup of it is going to look like in a short time frame.

I doubt that we're going to see a year's delay, but it's possible. I mean, from what we're hearing from both sides now, that you know that the White House is going to be determined to put forth a nominee in a short period of time and do everything possible to convince Republicans to take this up.

[21:07:27] HARLOW: And look, yes, it's an election year. Yes, that makes things for more complex. But it has happened before. I mean, Justice Anthony Kennedy, currently on the bench, was confirmed during an election year 1988. And by the way, yes, it was a different time. But he was confirmed unanimously. So different times, the president clearly is going to bring a name to the Senate.

All right, Michelle Kosinski, stay with me because for our viewers just joining us, I do want to show you a little bit more from our chief Washington correspondent Joe Johns about the legacy and the life of Justice Scalia.

(BEGIN VIDEOTAPE)

JUSTICE ANTONIN SCALIA, SUPREME JUSTICE: I Antonin Scalia do solemnly swear.

JOE JOHNS, CNN SENIOR WASHINGTON CORRESPONDENT (voice-over): The first Italian-American to sit on the nation's highest court, Justice Antonin Scalia, was a conservative in thought but not in personality.

EDWARD LAZARUS, AUTHOR, CLOSED CHAMBERS: Justice Scalia irreplaceably has a pugnacious personality. And even in his early years at the court, that came out both in oral court argument where he was the most aggressive questioner and behind the scenes where the memos that he wrote inside the court had a galvanizing effect on the debate among the justices.

JOHNS: The jaunty jurist was able to light up or ignite a room with his often brash demeanor and wicked sense of humor. Grounded, say many colleagues, in a profound respect of American law and its constitutional traditions.

JOAN BISKUPIC, SCALIA BIOGRAPHER: Feisty, he can be belligerent. He can be - he is obviously very candid about how he feels about things. Loves to call it like he sees it. Completely not PC. In fact, prides himself in not being PC on the bench, in court.

SCALIA: I'm an Italian from Queens. This is the top of the hill.

JOHNS: A sharp mind combined with a sharp pen allowed Scalia to make his point both to the pleasure and the disappointment of his colleagues and the public.

PAUL CLEMENT, FORMER SCALIA LAW CLERK: He is very good especially with a lot of audiences that are predisposed to like him. I think he's incredibly disarming and kind of charming in his own way.

JOHNS: Antonin Gregory Scalia was raised in the Elmhurst neighborhood of New York City. The only child of a Sicilian born college professor and schoolteacher mother. They instilled in the precocious child a love of words and debate.

SCALIA: I was something of a greasy grind, I have to say. I studied real hard.

JOHNS: He was a top student at public and private catholic schools in the city. Here he is leading his high school band in the 5th avenue parade in 1950. Scalia's interest in law began in college, and so too an interest in Maureen McCarthy with whom he later married and had nine children.

His exuberant embrace of conservatism attracted the attention of Republicans. And President Reagan ultimately named the 50-year-old federal judge to the high court in 1986. There he developed a reputation as a reliable conservative. In his own style help livened the face of the high court.

[21:10:20] CLEMENTE: Some of the other justices, including the justices on the court and had been on the court for a while were kind of like, well if the new guy gets to ask all of these questions, I'm going to step up and ask some questions too.

JOHNS: On abortion, the death penalty, affirmative action, homosexual rights, Scalia clashed early and often with moderate or left leaning bench mates.

BISKUPIC: At one extreme he would alienate some of his colleagues if he was trying to get anybody to sign in an opinion. It was harder when he would use more combative language. But, you know, as much as they would like to say, you know, I would like to strangle him, he was still there in many ways.

JOHNS: And those the sense helped him hone a creative, some said often cruel, strict in his writings becoming a master stylist. He once referred to the junior varsity Congress. He quoted (INAUDIBLE), Shakespeare and sesame street songs.

In a closely divided abortion case, he slammed Justice Sandra Day O'Connor's views as perverse and irrational. Off the bench came admiration from young conservatives who wrote books

and created websites and tribune, but controversy too. A hunting trip with vice president Cheney at the same time the court was considering a lawsuit against the number two over access to privileged documents. A Sicilian gesture some interpreted as obscene and captured by a Boston newspaper. He called it dismissive in nature. And this in on the war or terror.

SCALIA: War is war and it has never been the case that when you capture a combatant you have to give them a jury trial in your civil courts. It's a crazy idea to me.

Should I known self be true --?

JOHNS: Justice Scalia, a man both respected and dismissed, feared and celebrated, combining equal amounts of personal levity and judicial heft.

BISKUPIC: He will be remembered in many ways. Certainly as this larger than life figure, lager than bench figure. Someone who embraced both the law and a life beyond the court.

LEE LIBERMAN OTIS, FORMER SCALIA LAW CLERK: He will go down as one of the great justices in the history of the Supreme Court. I think that his clarity of thought, wit, writing, you know, will be very difficult to match.

JOHNS: A judge who combined street smarts with a well-calculated conservative view of the law and its limits on society.

SCALIA: I'm not driven. I enjoy what I'm doing. As soon as I no longer enjoy it, I am out of there.

(END VIDEOTAPE)

(COMMERCIAL BREAK)

[21:16:23] HARLOW: All right, welcome back. I'm Poppy Harlow in New York.

We are continuing to follow the breaking news, the very sad news of the death of a sitting U.S. Supreme Court justice, Justice Antonin Scalia who served on the high court for 30 years, the first Italian- American ever nominated and confirmed to the court, a justice who is very, very conservative in his opinions, yet at the same time known for his long and deep friendship with his opponent on the left ideologically, Ruth Bader Ginsberg. A man we know for his humor and his wit and skill with the pen.

Let me bring in someone who knew him very well, Ian Samuel. He clerked for Justice Scalia just three years ago. Thank you for being here.

IAN SAMUEL, FORMER CLERK FOR JUSTICE ANTONIN SCALIA: Thanks for having me.

HARLOW: I'm so sorry. I wish it were under better circumstances.

SAMUEL: Yes. It's still pretty shocking, to tell you the truth. I don't really think it's set in.

HARLOW: You have a deep knowledge of him as a person. Can you take us into the chamber what it was like?

SAMUEL: Well, he loved his law clerks. He really did. He was universally beloved by his law clerks. He was just about the best boss that you could ever hope for. I know that sort of contrast with media sort of (INAUDIBLE) that he is actually quite - I don't know if I would say, sweet.

HARLOW: But jovial.

SAMUEL: Extremely jovial. And he really loved his law clerks. He described us as nieces and nephews who all went onto do very well.

HARLOW: So what did he teach you that stands out to you most right now, Ian?

SAMUEL: You know, it's a strange thing that keep sticking in my mind, but when he was interviewing me he said something that I have repeated many times about life. Not less about law but about life. He was talking about, you know, when you're done here, what are you going to go do? Are you going to work for a law firm? I said yes, probably. I was, I don't know, 27 maybe at the time. He said these law firms they really work you hard nowadays. I said, yes. I think that is true. It is probably right. And he said, you know, they don't leave enough time for your other responsibilities. You have other responsibilities in life, responsibilities to your family, responsibilities to your church, responsibilities to your community. He gave me advice on how to pick a law firm where that would be possible. You know, I said that's easy for you to say, you worked at a law firm in Ohio, you know, 30 years ago or more than that. But it really did stick with me. It is one of those little nuggets.

HARLOW: Well, that really, to me, sounds like the father of nine speaking to you.

SAMUEL: I would say that he was the father of nine. Yes, the father of nine, the man who didn't miss mass, who had huge family life. These things were real responsibilities to him.

HARLOW: What did it mean that we heard the president, President Obama, tonight in his brief remarks saying, you know, noting this is a man born to an Italian immigrant family. This was the first justice on the court to be an Italian-American. What did that part of his life mean to him? His character mean to him?

SAMUEL: Well, you know, he was very proud of that. And I think it did mean, you know, not a lot, I think to people all across the country when he was nominated. And he would talked about how he got letters when president Reagan nominated him, how much it meant to see somebody named Scalia be nominated on the Supreme Court. So I think that, you know, it really meant a lot to him. He was a New Yorker, but it meant a lot to him to mean something to other people.

HARLOW: Obviously, you clerked with him just three years ago. Is there any opinion he wrote during your time with him or any opinion he wrote before you came to clerk for him that stands out to you most as we look at these images of him with his beloved wife?

SAMUEL: Yes. There is one that I think probably will go down as the economical legendary opinion, or I think it should. And he wrote it very, very, early when he was on the court long before I was, maybe three or four years old, but it was in a case called Morrison v. Olsen about the independent prosecutor statute. And he was an 8-1 solo dissent and he has just gotten on the court and it really does represent him at the height of his both kind of legal powers and that a lot of the things that happens during the, you know, investigation of President Clinton where it kind of predicted in that opinion. And it also just contains him at his best as a writer. I mean, it contains some of the best legal writing you will ever read and it has come out.

[21:20:28] HARLOW: Did he make you a better writer?

SAMUEL: Yes. He was a great writer. I mean, as a user of language, I mean, setting aside anything about the law or anything else, as a use of language, he was incredible.

HARLOW: Let me ask you this and you may not be able to answer it and you may not know what he would have said, so. But let me ask you this. There is now already a political fight going on. The president says he will nominate a successor. And you've got those on the right, senator Jeff Sessions was just telling me no. You should wait for the next president. Ted Cruz saying the same thing. Mitch McConnell saying the same thing. What would Justice Scalia want to see happen when it comes down to a rule of law and the U.S. constitution?

SAMUEL: Well, you know, I can't exactly speak to this because this is somewhat of an unusual circumstance. But I do know that he was a great believer in the ability of the political branches, you know the president and the Congress here to work things out with the tools that the constitution makes available to him. As to what his preference would be as to what would happen, I would never presume to say that. But he was a great scholar as to how it is branches when they are in conflict with each other, how do they manage that, how do they work it out and how does the constitution provide for that. So, I think it's interesting at minimum.

HARLOW: I've been asking our guests throughout the evening the one word they would use to describe Justice Scalia. For you, what is that word?

SAMUEL: I think I would borrow probably the word lion. I mean, he is a lion the likes of which we will never see again. He really is. We just don't get people like that. There is no successor that is going to be -- you can't succeed a person like that. It is like a home or grand ice or (INAUDIBLE) or someone. You don't - you get these people for as long as you get them. HARLOW: Ian Samuel, thank you so much. I appreciate you coming in.

I'm sorry for your loss, but what an experience that you get to tell your kids about.

SAMUEL: It really was. And I treasure the time that I got to have with him and I will miss him the rest of my life.

HARLOW: Some insight into who he was as a man, not just a justice. Thank you so much. We appreciate it.

As we continue to remember the life of Justice Antonin Scalia, we're going take a quick break. I will be right back.

(COMMERCIAL BREAK)

[21:26:00] HARLOW: All right. We are getting reaction from several former presidents right now on the passing of Justice Antonin Scalia.

Former president George H. W. Bush, Bush 41, coming out with the statement reading in part, the appointment of Antonin Scalia to the U.S. Supreme Court was one of Ronald Reagan's many enduring legacies to the United States. Both his admirers and his detractors agree that Justice Scalia was one of the sharpest constitutional intellects to ever serve on the bench. I considered him a personal hero. And Barbara and I were honored to call him a friend. Our hearts break today for our country, but especially for his wife Maureen and their nine children and extended family. His death is a great loss for us all.

Also former president George W. Bush speaking out saying, Laura and I both mourn the death of a brilliant jurist and important American, Supreme Court Justice Antonin Scalia, who was a towering figure and important judge on our nation's highest court. He brought intellect, good judgment and wit to the bench. And he will be missed by his colleagues and our court. Laura and I September our heartfelt sympathies and condolences to his wife Maureen, their nine children and the entire Scalia family.

Former president Bill Clinton is in South Carolina tonight, stumping for his wife. He paused for a moment also to reflect on the justice.

(BEGIN VIDEO CLIP)

BILL CLINTON, FORMER PRESIDENT OF THE UNITED STATES: FIRST OF ALL, My prayers are with his family and with his friends. Justice Scalia, he would find it probably hard to believe that I would say this. But I always kind of liked Justice Scalia, because he never pretended to believe something he didn't, he never pretended to be anything he wasn't. And I think that's one reason by all accounts he became good friends with Justice Ginsburg who I appointed to the Supreme Court. They disagreed on nearly everything, but they treated each other with respect. And they sat down and had honest arguments. And that's all you can ask in America. (INAUDIBLE). And tonight all of us, whether we agree or disagree with him, should be praying for his family and thankful for the fact that he was able to live a life where he could say what he thought and do what he thought was right and do it with a smile on his face and reach out and make friends with Ruth Bader Ginsburg who did the same exact thing and came to different conclusions. That's what makes democracy work and I'm grateful.

(END VIDEO CLIP)

HARLOW: There you have it from former president Bill Clinton.

I want to talk more about all this with CNN senior legal analyst, Paul Callan.

Paul to you, I think a lot of people watching have this question. Now that you have got a court with eight justices in the middle of a season, if you will, with some of these cases that have been argued but a decision not handed down, just walk me through technically what happened.

PAUL CALLAN, CNN LEGAL ANALYST: Well, it's a strange situation because we haven't really seen this happen in many cases through the years. But the Supreme Court decision really doesn't become final until it's announced by the Supreme Court at the end of the term.

So I suppose that if there have been cases where they took preliminary votes and made a decision based on Scalia's vote. The minority in that decision could certainly go to the chief justice Roberts and say we would like to revote that. Because this internal process is still going on really until the final decision is noted. Now, on the other hand, they could choose to just stand by the votes that have been taken and move on. It is really going to be up to how the minority handles it.

HARLOW: And look. You cannot overstate the importance of this in the context of the presidential election, the GOP debate in South Carolina tonight.

First question, of course was about exactly this. When you look at the influence of this in the context of the election, as David Gergen put it, you have got all three branches of government, Paul, now in play. You've got the executive branch with the election. You've got Congress or legislative branch, right. And you've now got the Supreme Court up because this was a man who really swayed the court one way.

[21:30:09] CALLAN: Yes. And you know, what is interesting that his death would do this. Because Scalia was a strange Supreme Court justice in that he spoke widely, his words were known across America, even though if you look back over his history of decision making, a lot of his decisions, you know, nobody remembers because he was often speaking in dissent. He often felt that the court was going too far, was going beyond what the constitution required. But everybody knows him as a voice of conservatism and principled conservatism.

HARLOW: He was in the majority in Bush versus Gore in 2000. Also critical case in terms of the right to bear arms, second amendment in 2008, the Heller case.

CALLAN: Yes. The Heller case may be one that he is remembered for. Because up until the Heller case, there had been sort of a trend to say that the second amendment really didn't have to do with an individual right to bear arms, but had to do with the right of a well- armed citizen's militia. And he made it very, very clear in Heller that was not what it meant.

HARLOW: That it was the individual's right to bear arms.

CALLAN: Absolutely.

HARLOW: Interesting that something that even President Obama has agreed with him on.

CALLAN: Yes. President Obama did agree with him on it. And I think that tell you another political issue. It's hard to oppose guns in America and get elected and stay elected.

HARLOW: All right. Thank you so much, Paul Callan. Stay with us. We have much more ahead.

Also what is ahead is a fascinating one on one interview with Piers Morgan and Antonin Scalia. Four years ago they sat down together. Riveting interview with extraordinary insights into the legendary justice. You will hear it in its entirety, a judge who my guest just called a true lion. You will hear Piers Morgan speak one-on-one with him next.

(COMMERCIAL BREAK)

[21:35:38] HARLOW: All Right. We are continuing to follow the breaking news tonight, the death of U.S. Supreme Court justice, Antonin Scalia. He died at the age of 79. We know that he died in his sleep of natural causes during a hunting trip to a ranch in Texas. He was appointed 30 years ago in 1986 by then president Ronald Reagan. He was unanimously confirmed by the senate. He was the first Italian- American to serve on the nation's high court.

Just a short time ago, President Obama called him a towering legal figure. The president also saying tonight he will indeed nominate a replacement for Justice Scalia in due time, saying it is his constitutional responsibility to do so.

And tonight in Washington as darkness fell, the flag outside of the Supreme Court was lowered and then raised to half-staff in honor of Justice Scalia.

Earlier today chief justice John Roberts issued a statement calling Scalia an extraordinary individual and jurist admired and treasured by his colleagues. He said that his passion is a great loss to the court and to the country he so loyally served.

Back in July of 2012, Justice Antonin Scalia sat down for an exclusive in depth interview with then CNN anchor Piers Morgan. No topic was off limits as Morgan questions Scalia's rulings on the death penalty, citizens united and also spoke about abortion. Scalia opened up and gave viewers fascinating insight in the legal mind. We want to share that interview with you now.

(BEGIN VIDEOTAPE)

PIERS MORGAN, HOST, PIERS MORGAN TONIGHT: It isn't often a Supreme Court justice invites a journalist to come and sit down with him inside the court itself. But I'm here today in Washington to interview the longest serving justice, Antonin Scalia.

Justices never comment on cases they just ruled on or are pending, but that still left a lot of territory to cover, everything from his faith and family to his guiding judicial principles, his thoughts on campaign finance and politics, and his colleagues. It's all on the table tonight in my exclusive interview with Justice Antonin Scalia and Bryan Garner, co- author of their new book, "Reading Law: The Interpretation of Legal Texts."

MORGAN: Justice Scalia, welcome.

Bryan, welcome to you, too.

BRYAN GARNER, CO-AUTHOR, "READING LAW": Thank you.

MORGAN: The book is very much a template for the way that you've conducted your legal life. You are a man that believes fundamentally that the law in America should be based rigidly on the letter of the Constitution.

That's what you believe, isn't it, fundamentally?

SCALIA: Yes, give or take a little. Rigidly I would not say. But it should be based on the text of the Constitution, reasonably interpreted.

MORGAN: People that criticize you for this say a lot of the Constitution was phrased in a deliberately vague way, that they realized when they framed it that in generations to come, things may change, which may put a different impression on a particular piece of text.

SCALIA: Right.

MORGAN: Why are you not prepared to accept that that means you can move with the times, to evolve it?

SCALIA: Oh, I -- but I do accept that, with respect to those vague terms in the Constitution such as equal protection of the laws, due process of law, cruel and unusual punishments. I fully accept that those things have to apply to new phenomena that didn't exist at the time.

What I insist upon, however, is that as to the phenomenon that existed, their meaning then is the same as their meaning now.

For example, the death penalty. Some of my colleagues who are not textualists, or not originalists, at least -- believe that it's somehow up to the court to decide whether the death penalty remains constitutional or not. That not a question for me. It's absolutely clear that whatever cruel

and unusual punishments may mean with regard to future things, such as death by injection or the electric chair, it's clear that -- that the death penalty, in and of itself, is not considered cruel and unusual punishment.

MORGAN: But more and more Americans are coming around to think that the death penalty is an anachronistic thing. You know, 50 years ago, even when you began -- you're the longest serving Supreme Court justice. When you began, you know, the majority of Americans, a big majority, would have been in favor of the death penalty. That is beginning to change. And you're seeing it, you know, for want of a better phrase, going out of fashion. One of the reasons being the introduction of DNA, establishing that a large number of people on death row didn't commit their crimes.

How do you equate that, as man of fairness and justice, how do you continue to be so pro something which is so obviously flawed?

[21:40:25] SCALIA: I -- I'm not pro. People -- I don't insist that there be a death penalty. All I insist upon is that the American people never proscribed the death penalty, never adopted a Constitution which said that states cannot have the death penalty. If you don't like the death penalty, fine. Some states have abolished it. You're quite wrong that it's a majority. It's a small minority of the states that have -- that have abolished it. The majority still -- still permit it.

But I'm not pro death penalty. I -- I'm just anti the notion that it is not a matter for democratic choice, that it has been taken away from the democratic choice of the people by a provision of the Constitution. That's simply not true. The -- the American people never ratified a provision which they understood abolished the death penalty. When the cruel and unusual punishments clause was adopted, the death penalty was the only penalty for a felony.

(CROSSTALK)

GARNER: And all we'd have to do is amend the Constitution. I mean, it can be amended. So it is changeable, but it's changeable by a process, not by asking the judiciary to make up something that is not there in the text.

MORGAN: Right. But, for example, on the cruel and unusual, I wouldn't have cited the death penalty so much as torture. I was fascinated by your interview -- and I think it's to "60 Minutes" -- where you said that in your eyes, torture wasn't a cruel and unusual punishment, I think is what you said. Torture wasn't punishment. And I thought, well, hang on a second. I mean it clearly can be a punishment, can't it?

If you're an innocent person, say in Guantanamo Bay -- and you've expressed views about this, too. Say you've been picked up off a battlefield and taken to Guantanamo, but you are genuinely innocent. You had nothing to do with anything and you get tortured. That -- that becomes a punishment, doesn't it? SCALIA: No, I don't think it becomes a punishment. It becomes

torture. And we have laws against torture. But I don't think the Constitution addressed torture. It addressed punishments, which means punishments for crimes.

MORGAN: But what about if you're an innocent person being water- boarded?

SCALIA: I'm not for it. But I don't think the Constitution says anything about it.

MORGAN: See, isn't that the problem, though, with the originalism.

SCALIA: No, it's...

MORGAN: -- you -- you...

SCALIA: -- it's not the problem. It -- it -- it's a problem of what -- what does the Constitution mean by cruel and unusual punishments?

Now, nobody can --

MORGAN: But isn't it down to --

(CROSSTALK)

MORGAN: -- isn't it down to the Supreme Court to effectively give a -- more modern interpretation of the spirit of what that means, to adapt it to modern times?

SCALIA: Well, that's lovely.

(LAUGHTER)

MORGAN: Well, I know you don't think it is.

But why don't you think it is?

SCALIA: Well, I don't think it is, because, look, the background principle of all of this is democracy. A self-governing people who decide the laws that will be applied to them. There are exceptions to that. Those exceptions are contained in the Constitution, mostly in the Bill of Rights. And you cannot read those exceptions as broadly as the current court desires to read them, thereby depriving Americans of legitimate choices that the American people have never decided to take away from them. And that's what happens whenever you read punishments to mean torture.

If you are sentenced to torture for a crime, yes, that is a cruel punishment. But the mere fact that somebody is tortured is unlawful under our statutes, but the Constitution happens not to address it, just as it does not address a lot of other horrible things.

MORGAN: Bryan, when you did the book, what did you argue most with Justice Scalia about, because he's -- he's one of the real great arguers. I feel like we're just warming up here? (CROSSTALK)

GARNER: Well, he's an intellectual giant. And we -- we had no debates in this book, where in the first book, we had four debates, where we had a pro and con. In this particular book, we had none. The biggest issue, in the end we almost had a debate about, but he -- he persuaded me -- we -- not to -- was whether a murderer can inherit? Can a son, for example, murder his parents and move up his inheritance and still take whatever the property is from his parents if the statute doesn't say anything about it? And we all feel that that's wrong. And I was, at first, arguing that there should be an equitable exception and that we absolutely have to prevent a murderer from inheriting. What did you say in response to that?

SCALIA: I said if you're going to be serious about textualism, if the statute does not make an exception, it does not make an exception. And those states that hadn't made an exception amended their statutes. That's what happened.

(END VIDEOTAPE)

[21:45:06] HARLOW: Already. Ahead, much more from that one on one exclusive interview with Justice Antonin Scalia. Piers talked to him about his thoughts on free speech and its limits, next.

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[21:48:37] HARLOW: Justice Antonin Scalia's impact on the high court and on American jurist prudent cannot be over stated. He played a role in decisions on flag burning and free speech and of course on citizens united. Justice Scalia explained the reasons behind his decisions in an exclusive in-depth interview with former CNN anchor Piers Morgan. Here is more of that conversation from Jul y of 2012.

(BEGIN VIDEOTAPE)

MORGAN: Why you believe that people who burn the flag in America should be allowed to do so? And yet you personally, if you had the chance, would send them all in jail?

SCALIA: Yes, if I were king, I would not allow people to go about burning the American flag. However, we have a First Amendment, which says that the right of free speech shall not be abridged. And it is addressed, in particular, to speech critical of the government. I mean, that was the main kind of speech that tyrants would seek to suppress.

Burning the flag is a form of expression. Speech doesn't just mean written words or oral words. It could be semaphore. And burning a flag is a symbol that expresses an idea -- I hate the government, the government is unjust, whatever.

MORGAN: If you're not sure, then, in the end, doesn't -- no one knows the Constitution better than you do. Doesn't it come down to your personal interpretation of the Constitution? If it isn't clear- cut, which it clearly isn't, you, in the end, have to make --. [21:50:13] SCALIA: No, no, don't --.

MORGAN: -- an opinion, don't you?

SCALIA: Well, don't forget this person has to be convicted by a jury of 12 people who unanimously have to find that he was inciting to riot. So, you know, it's not all up to me. It would be up to me to say that there was not enough evidence for the jury to find that, perhaps. But ultimately, the right of jury trial is the protection --

MORGAN: Sorry. Go ahead.

GARNER: Well, don't you think this example of speech and reading speech and a fair reading as including symbolic speech -- there's a lot of case law about that, of course -- but it's a good example of why we think strict construction is a bad idea. A lot of people think that Justice Scalia is a strict constructionist, when, in fact, he and I both believe.

MORGAN: What does that mean?

GARNER: Well, it really means a narrow reading, a crabbed reading of statutory words or of constitutional words. And it's a kind of hyper- literalism, which we oppose. We like a fair reading of the statute, a fair reading of the words, and, in this case, speech.

MORGAN: Well, let me -- well, let me take up the issue of speech. Let's turn to political fundraising, which, at that moment, under your interpretation, I believe, of the Constitution, you should be allowed to raise money for a political party.

The problem, as I see it and many critics see it, is that that -- it has no limitation to it. So what you've now got are these super PACS funded by billionaires effectively trying to buy elections. And that cannot be what the founding fathers intended. Thomas Jefferson didn't sit there constructing something which was going to be abused in that kind of way. And I do think it's been abused, don't you?

SCALIA: No. I think Thomas Jefferson would have said the more speech, the better. That's what the First Amendment is all about. So long as the people know where the speech is coming from.

MORGAN: But it's not speech when it's --.

SCALIA: The first --

MORGAN: -- it's ultimately about money to back up the speech.

SCALIA: You can't separate speech from the money that -- that facilitates the speech.

MORGAN: Can't you?

SCALIA: It's utterly impossible. Could you tell newspaper publishers you can only spend so much money in the -- in the publication of your newspaper? MORGAN: (INAUDIBLE).

SCALIA: Would they not say this is abridging my speech?

MORGAN: Yes, but newspaper publishers aren't buying elections. I mean to -- you know, the election of a president, as you know better than anybody else, you've served under many of them is an incredibly important thing.

SCALIA: Newspapers --.

MORGAN: And it shouldn't be susceptible to the highest bidder, should it?

SCALIA: Newspapers endorse political candidates all the time. What do you mean --? They're almost in the business of doing that.

MORGAN: Yes.

SCALIA: And are you going to limit the amount of money they can spend on it?

MORGAN: Do you think perhaps --.

SCALIA: Surely not.

MORGAN: Do you think, perhaps, they should be?

SCALIA: I certainly think not. I think, as I think the framers thought, that the more speech, the better. Now, you are entitled to know where the speech is coming from, you know, information as to who contributed what. That's something else. But whether they -- whether they can speak is, I think, clear in the First Amendment.

MORGAN: Is there any limit, in your eyes, to freedom of speech?

SCALIA: Of course.

MORGAN: Is there -- what are the limitations to you?

SCALIA: I'm a textualist. And what the provision reads is, "Congress shall make no law abridging the freedom of speech." So they had in mind a particular freedom. What freedom of speech? The freedom of speech that was the right of Englishmen at that time.

(CROSSTALK)

MORGAN: What is the difference speech about insurrection being unacceptable and speech as you're burning a flag? Isn't that a form of insurrection?

SCALIA: No. No.

MORGAN: Isn't it?

SCALIA: No. No. No. That's just saying we dislike the government. It's not urging people to take up arms against the government. That's something quite different. That's what I mean by speech urging insurrection. Speech inciting to riot or inciting to --

GARNER: Or shouting "Fire!" in a theater. What about that?

MORGAN: One of the more complex things about you, just -- which I -- I think is -- has been admired and criticized in equal measure. The case I would put to you, where I think it's interesting where you dissented against something where I think common sense would have dictated the opposite, was "Maryland v. Craig," a young girl who had been abused by a child molester. And she gave evidence through closed-circuit television. She didn't appear in court. And the abuser argued that this was unconstitutional, because, under the confrontation element of the Constitution, he should have been allowed to be face-to-face with his victim.

SCALIA: Right.

MORGAN: Now, what part of human decency or common sense says that he should have the right to be face-to-face with his young girl victim? Because you dissented against the--

SCALIA: I did.

MORGAN: -- Supreme Court. You decided he should be allowed to.

[21:55:03] SCALIA: All legal rules do not come out with a perfect, sensible answer in every case. The confrontation clause, in some situations, does seem to be unnecessary. But there it is. And its meaning could not be clearer. You are entitled to be confronted with the witnesses against you. And simply watching the witness on a closed-circuit television.

MORGAN: Even when the witness --

SCALIA: -- is not (INAUDIBLE).

MORGAN: -- is a young girl who's already been --.

SCALIA: Whatever.

MORGAN: -- abused and is actually traumatized by what happened?

SCALIA: What it says it what it says.

MORGAN: Do you go home at night, when you dissent in that particular case, do you have misgivings about it, person -- on a personal level, or are you always able to divorce that from your, as you would say, legal responsibility to uphold the letter of the Constitution?

SCALIA: No, I sleep very well at night knowing that I'm doing what I suppose -- what I am supposed to do, which is to apply -- to apply the Constitution. I do not always like the result. Very often, I think the result is terrible. But that's not my job. I'm not king. And I haven't been charged with making the Constitution come out right all the time. (END VIDEOTAPE)

HARLOW: All right. We will have much more of Piers Morgan's interview there with Justice Scalia ahead. They talked about obviously the Roe versus Wade ruling, which was made before Scalia took the bench, and much, much more in that interview with justice Scalia ahead.

I do want to tell you, though, that later this week CNN will host two Republican presidential town hall events in South Carolina. All six Republican candidates will participate. Marco Rubio, Ted Cruz, Ben Carson will be in the town hall on Wednesday night. On Thursday night Donald Trump, Jeb Bush, and John Kasich will join our Anderson Cooper. He will be hosting both town halls. And they will both begin at 8:00 p.m. eastern time. These will give voters in South Carolina the opportunity to question the candidates and of course the passing of Supreme Court Justice Antonin Scalia will be addressed as well in depth during those town halls this week. The Republican presidential town halls Wednesday and Thursday 8:00 p.m. eastern only right here on CNN.

Stay with me. Much more of that exclusive CNN interview with Justice Antonin Scalia is next.

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