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AT THIS HOUR WITH BERMAN AND MICHAELA

Battle over Supreme Court Nomination Under Way; George W. Bush Hits Campaign Trail for Jeb; Trump Go After Bush Family, Calls George W. Bush A Liar. Aired 11-11:30a ET

Aired February 15, 2016 - 11:00   ET

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


[11:00:00] JOHN BERMAN, CNN ANCHOR: I'm John Berman. Kate is off today.

This morning, an extraordinary battle is underway. A battle for the future of the Supreme Court, for the future of the Senate, for the future of the presidency, and no one saw it coming. Yes, the nation mourns the loss of Antonin Scalia, but the genuine thoughts for the family joined by genuine political maneuvering, the likes of which we have never seen. We're getting a new sense of where the battle lines are drawn this morning.

Republicans say the current president, Barack Obama, should not get to pick the next justice despite his constitutional responsibility to nominate. They said the country should wait until there is a new president. The president says that a name is definitely coming. What does that mean for the court? What does it mean for the Senate? What does it mean in the race for the White House? An almost unimaginable chain reaction of consequences this morning.

Let's begin with senior political reporter, Manu Raju.

Manu, Capitol Hill, a lot of action there right now.

MANU RAJU, CNN SENIOR POLITICAL CORRESPONDENT: That's right, John. Washington is really bracing for the nominee. What kind of nominee is the president going to propose? Is it someone who will be designed to fire up the progressive base? Is it someone who is going to be seen as a consensus nominee to put Republicans on the defensive? Or is it a more conservative nominee that will put Republicans even more on the defensive? That's what everyone is looking at right now, the kind of nominee he would choose.

Republicans, of course, are already digging in. Mitch McConnell, the majority leader, on Saturday night, put out a statement saying the next president should decide who the nominee is. That has been echoed down the line from a number of Republicans.

What is unclear, though, is what the Senate will do when the president moves forward with the nominee. Will there be hearings in the Senate Judiciary Committee? Will there be a vote on the Senate floor? Those are unanswered questions. And a lot will have to do with whether Republicans, particularly in tough races, clamor for a vote inside with Democrats who insist there must be a vote. Now, right now it's certain, John, that whoever is president proposes

will have an uphill battle. I just got off the phone with Lindsey Graham, the South Carolina Republican, who has sided with the president on a number of nominees, including Sonia Sotomayor. But on this one, he said it's going to be very hard to get anyone through unless there's a consensus nominee. When I asked him who that would be, he said, I don't know, maybe Orrin Hatch. And Hatch is a Utah Republican. I'm not certain he's going to get the nomination.

Really, what we're seeing are battle lines being drawn. It's not clear how this will end up quite yet -- John?

BERMAN: Let's put Orrin Hatch in the unlikely column this morning.

Manu Raju in Washington this morning. Thank you so much.

Let's talk about this more with CNN senior legal analyst, former federal prosecutor, Jeffrey Toobin, who knows more about the Supreme Court than nearly anyone on earth right now.

Jeffrey, thank you for being with us.

JEFFREY TOOBIN, CNN SENIOR LEGAL ANALYST: Berman.

BERMAN: That is not an overstatement. Look, is there any precedent or any constitutional authority that says wait until the next president?

TOOBIN: No. The Constitution just defines one president with one set of powers. He has the power until next January 20th. The Senate also has the power to advise and consent on Supreme Court nominations and no one sets out a standard for what -- how they exercise the power. The president can nominate someone and the Senate can accept or reject the nominee at any point.

BERMAN: Is there any precedent for a 13-month gap in nominating a new justice where there's an absent justice, where it's just four/four?

TOOBIN: There's certainly not. There have been vacancies in the past. John Tyler, who I'm sure is one of your favorite presidents, there was a 27-month gap between Supreme Court nominees. It wasn't -- there wasn't nine justices on the court in those days. There has always never been, in the modern history of the court, there has never been simply a year-plus to go by with no action from the Senate.

BERMAN: One of the reasons is there are consequences. It matters.

TOOBIN: It does. The Supreme Court was set up to have nine justices. And when there is an even number of justices, and the court can split four to four, which, given the personnel who remain on the court, is a likely result in many important cases, what happens is that the lower court decision is affirmed, but it doesn't become a precedent for the whole country. There are a lot of big issues on the Supreme Court's plate. We have a Supreme Court to resolve issues for the whole country. So the failure to have nine justices, it will not bring the Supreme Court to a complete halt, but it certainly will create serious complications.

BERMAN: It affects law.

TOOBIN: Absolutely.

BERMAN: What options does the president have?

[11:05:00] TOOBIN: He really doesn't have a lot of options. All he can do is nominate someone, and put whatever political pressure he has on the Senate to give that person a vote. But with a Republican Senate and, frankly, with his lame-duck status, there is a limited amount of political leverage that he has. He can, on his own, or with other Democrats, put pressure, particularly on the vulnerable incumbent Republicans, the people like Kelly Ayotte in New Hampshire, Ron Johnson in Wisconsin, and Pat Toomey in Pennsylvania, to say, come on, do your job, give the nominee a vote. We'll see if the voters in those states care, but that's really the president's only leverage.

BERMAN: That's campaigning. That's using the bullying pulpit. There's no levers he can pull to automatically make this happen. I think that's an important point to make. Who holds all the cards here? Is it Mitch McConnell?

TOOBIN: Mitch McConnell. Mitch McConnell. This is why majority control of the U.S. Senate is so important. The party in power controls the agenda. If Mitch McConnell doesn't want to call a vote, there is nothing the 45 Democrats in the Senate can do. If Chuck Grassley, the chairman of the Judiciary Committee, doesn't want to hold hearings, there's nothing the Democrats can do about it.

BERMAN: In an alternate universe, give us the one pick you think President Obama would be likely to make.

TOOBIN: I think Sri Srinivasan, a judge on the D.C. circuit, unanimously confirmed by the Senate, is a good possibility. Jane Kelley, a judge on the Eighth Circuit, unanimously confirmed very recently, from Chuck Grassley's home state, a friend of Chuck Grassley's. Paul Watford from the Ninth Circuit, who was also confirmed overwhelmingly earlier in President Obama's term. Another name worth keeping in mind because politics plays a big part is Adalberto Jordan, on the 11th Circuit, who would be a Hispanic nominee, also confirmed overwhelmingly earlier in President Obama's term.

You know, whoever is the nominee is going to become an important person in American politics, so a possible Hispanic nominee, an Indian-American nominee, a female nominee, all of that could play into it.

BERMAN: Politically, it's important for the president to put a face on what the obstruction will be coming forward.

Just finishing up here, Jeffrey, this won't be resolved this week. This is likely to be, if not one issue, the preeminent issue in the country for the next 11 months. TOOBIN: Absolutely. When -- the president -- the hints have been it

will be within a month that President Obama will nominate someone. At that point, the Senate is going to have to start to decide, are we going to hold a hearing, are we going to meet with the -- one of the traditions is the Supreme Court nominees meet with all the Senators. Are they going to refuse to meet with them?

(CROSSTALK)

TOOBIN: It will be very interesting.

BERMAN: -- unchartered waters here, to be sure. We really are.

Jeffrey Toobin, great to have you with us.

TOOBIN: That's why we're in the news business. Stuff happens.

(LAUGHTER)

BERMAN: Absolutely.

Thanks, Jeffrey.

Just a few hours from now, a seismic political event. As if this wasn't enough, for the first time really in 12 years, George W. Bush hits the campaign trail. What are the implications? We have a guest who covered him more closely than nearly any reporter in America.

Plus, they called it a blood bath. They called it a demolition derby. They called it a train wreck. The South Carolina Republican debate. It could be just a taste of what is coming on the trail today.

(COMMERCIAL BREAK)

[11:12:21] BERMAN: In South Carolina this morning, there is a disturbance in the political force. You may sense something. A presence you haven't felt since 2004. One of the most anticipated reintroductions in memory, former President George W. Bush hits the trail for his brother, Jeb, tonight. One way or another, you get the feeling this campaign will never be the same again.

Let's go to CNN's Athena Jones in North Charleston, South Carolina -- Athena?

ATHENA JONES, CNN CORRESPONDENT: Hi, John. You're right. This does feel like a new stage in the campaign. We're talking about a candidate in Jeb Bush whose own campaign logo just has his name, Jeb, exclamation point, no Bush. He's been running since the beginning saying that he is going to be his own man. And, yet, we saw him bring out his mother while campaigning in New Hampshire for a couple days. Now it's his brother, former President George W. Bush. Popular among Republicans. They're hoping, as they make a big play for this state after that sixth place finish in Iowa and fourth place in New Hampshire, they're hoping that George W. Bush can help give Jeb a boost here. This is a state that you remember, delivered primary victories for both W. and his father. Jeb Bush in talking about this rally tonight says he expects his

brother to talk about what you need to have, what skills you need to have to be a good commander-in-chief and to talk about the fact that Jeb Bush, his little brother, has those skills.

The campaign clearly believes it's going to give them a boost. But this is still already, of course, coming under fire from some opponents, like GOP front runner, Donald Trump, has been tweeting about this in addition to talking on the Sunday shows and in the debate.

Here's one of the tweets he put out this morning: "Now that George Bush is campaigning for Jeb, is he fair game for questions about World Trade Center, Iraq War and eco" -- meaning economic -- "collapse? Careful."

So clearly, Donald Trump will be paying close attention tonight and will be ready to pounce -- John?

BERMAN: I'm sure Donald Trump will be watching that event closely.

Athena Jones, thank you.

Joining me now is Frank Bruni, "New York Times" op-ed columnist, author of "Ambling into History," all about the first George W. Bush run for the White House. His latest book is "Where You Go Is Not Where You'll Be." It's all about the college admissions process.

But today's focus about a different kind of acceptance and rejection, shall we say.

(LAUGHTER)

Frank, we both covered George W. Bush's first run for the White House. At his best, what kind of a campaigner can George W. Bush be?

[11:14:56] FRANK BRUNI, OP-ED COLUMNIST, NEW YORK TIMES & AUTHOR: At his best, he's very affable. He can project a great deal of warmth. But he was never great at making the case. It's interesting he's coming out for Jeb. I think he's going to be a physical presence. He's trying to remind people of the Bush family. But if people are expecting him to step to the microphone and make a case for Jeb that's more forceful and more detailed than the case Jeb has made, I think they'll be disappointed. I don't think that's what's going to happen.

BERMAN: One of the big questions is, who is George W. Bush right now as a politician? We haven't seen him really on the stump in more than a decade.

BRUNI: He has kept as low a profile of any ex president in history. He's been sitting at home painting. We've seen his paintings more than we're seen him. There's suspense and almost a mystery surrounding this. We have not seen him speak like this in public. We've just not seen him that often. I'm also fascinated, according to the release that I saw, Laura Bush is joining him. That's an indication of the Bush family pulling out all the stops. She had no appetite for the campaign trail. This was not Hillary Clinton in service of Bill. This was not Barbara Bush in service of George H.W. Bush. A much different kind of woman, not having much appetite for this, and she's coming out tonight. So the Bush family is really -- they're giving it one last big shot for Jeb.

BERMAN: If no -- there's no way to place odds on whether he'll come out and say I love my brother, I love him a lot, a lot, as he would say, he would make a great president, or if he will respond to some of the charges from Donald Trump. Donald Trump has been going right after George W. Bush.

BRUNI: That's an interesting question. It might be very tempting for him to do so, but this isn't his forte. Stepping to a microphone and making a long case is not his forte. He needs to be careful. If he gets too deep into the weeds, he could hurt Jeb more than help him.

BERMAN: Every kind of political fight there is for the last 10 years.

BRUNI: That's right.

BERMAN: South Carolina, we were there with him in 2000 after he lost the New Hampshire primary.

BRUNI: We spent so much time together in South Carolina. I think we're kind of nostalgic.

(LAUGHTER)

BERMAN: Waffle House.

BRUNI: Yeah.

BERMAN: What does South Carolina mean to the Bush family?

BRUNI: South Carolina is the state that resuscitated George W.'s candidacy. I mean, it wasn't as on the ropes as Jeb's is. But South Carolina was a moment of truth for George W. in 2000. He was coming off a shellacking in New Hampshire by John McCain. There was great worry in his campaign that if they lost South Carolina, that would be the end of the road for him. And here we are all these years later with Jeb going to South Carolina. I think if Jeb doesn't finish third in South Carolina, it could be the end of the road for him.

BERMAN: It's like the Bush family last dance. Where the Bushes go to fight the big fight.

BRUNI: Where they go to be reborn or to say good-bye.

BERMAN: It's interesting, too, George W. Bush played not just with the national defense crowd in South Carolina but played big to the evangelical crowd there as well.

BRUNI: He did, and South Carolina is also where the race with McCain got ugly. It's interesting because Jeb has gotten more and more negative. He's gone from a candidate who began with you have to be willing to lose the primary to win the general, to a candidate who is doing whatever it takes to get to the general. In South Carolina, how ugly are the next five or six days going to be?

BERMAN: What is George W. Bush going to do about it? How ugly is he willing to get? I bet not very.

BRUNI: He's not the one who is going to get ugly.

BERMAN: Yeah.

Frank Bruni, great to have you with us. Thanks so much.

BRUNI: Thanks, John.

BERMAN: We're expecting a news conference and a rally from Donald Trump in South Carolina. We're not sure why the campaign scheduled this news conference. A bit unusual for the Trump campaign. Could it be he wants to add more fuel to the fire after calling Bush a liar? We'll bring that live the minute it happens.

Plus, we'll speak with a Republican lawmaker and a very close friend of Justice Antonin Scalia. We'll get reaction to the bitter partisan feud erupting over his possible replacement.

(COMMERCIAL BREAK)

[11:23:04] BERMAN: This morning, Donald Trump going right after Jeb Bush, in fact, the whole Bush family. This, after the incendiary debate in South Carolina where Donald Trump flat-out said that George W. Bush lied.

(BEGIN VIDEO CLIP)

DONALD TRUMP (R), PRESIDENTIAL CANDIDATE: George Bush made a mistake. We can make mistakes. But that one was a beauty. We should have never been in Iraq. They lied. They said there were weapons of mass destruction. There were none and they knew there were none.

(CHEERING)

JEB BUSH (R), PRESIDENTIAL CANDIDATE: I could care less about the insults Donald Trump gives to me. It's blood sport for him. He enjoys it. And I'm glad he's happy about it.

(CROSSTALK)

BUSH: But I am sick and tired of him going after my family.

TRUMP: The World Trade Center came down in your brother's reign. Remember that.

(CROSSTALK)

(BOOING)

BUSH: Hold on. Let me finish.

(END VIDEO CLIP) BERMAN: CNN senior White House correspondent, Jim Acosta, is in Mt. Pleasant, South Carolina, where Donald Trump is expected to take the stage shortly -- Jim?

JIM ACOSTA, CNN SENIOR WHITE HOUSE CORRESPONDENT: That's right, John. A couple of things we'll be listening for during this event here is whether or not he continues these attacks aimed at Jeb Bush and George W. Bush. He did that during the Republican debate here in South Carolina on Saturday night. It was widely regarded as, perhaps, a blunder on his part heading into this critical week. But as we've seen with Donald Trump, when he has a perceived blunder and he has the entire Washington press saying he went over the top going after Jeb Bush and George W. Bush on Iraq and 9/11, Donald Trump has been doubling down. That's what he tends to do when there are these perceived blunders that are going about inside the media.

He talked about that in a tweet earlier this morning saying, "Oh, goodness, George W. Bush is in the state of South Carolina. Can I continue to talk about Iraq and the World Trade Center? Careful." That was one of the tweets he sent out earlier this morning. Obviously Donald Trump doesn't mind the attention generated by his debate performance on Saturday night. And when you look at some of the flash polls that were conducted, after that debate, it was fairly warmly received.

I have to tell you, John, when I'm out on the campaign trail with Donald Trump, there is a different reaction when he goes after the Bush family. During the debate, you heard a lot of boos in that audience. But out on the campaign trail, when he goes after Jeb Bush, when he pats himself on the back and says, I was right about the Iraq war, he gets thunderous applause. So it is revealing, the split inside the Republican Party. Donald Trump is attracting a lot of new voters, a lot of disaffected Republicans, a lot of people who say they haven't voted before. When you see those people at the rallies, they don't mind these comments about the Bush family. But that is all going to be put to the test over this next six or seven days.

Lindsey Graham, Jeb Bush's chief surrogate, has been saying people in South Carolina like the Bush family, like George W. Bush, but if Donald Trump wins in a landslide Saturday night, I think that conventional wisdom has to go out the window.

[11:26:11] BERMAN: All right, Jim Acosta for us in Mt. Pleasant, South Carolina.

Again, Donald Trump expected to speak there shortly. Also with a news conference. Curious to see what he has to say. We'll bring that to you live when it happens.

In the meantime, joining us is Scottie Nell Hughes, chief political correspondent for USA Radio Network and a Trump support; Republican consultant, Bruce Haynes, who once worked for South Carolina Governor Carol Campbell, so he knows the Palmetto state well; and Bill Press, CNN political commentator, a Bernie Sanders supporter and author of "Buyers Remorse: How Obama Let Progressives Down."

Bill is going to have an easy go of it because we're talking about Republicans today --

(LAUGHTER)

(CROSSTALK)

BERMAN: -- specifically, specifically what happened in South Carolina overnight. And if you missed it, let me give you some of the greatest hits. Watch.

(BEGIN VIDEO CLIP)

TRUMP: Two days ago, he said he would take his pants off and moon everybody and that's fine. Nobody reports that. He gets up and says that, and then he tells me, oh, my language was a little bit rough.

(SHOUTING)

SEN. TED CRUZ (R-TX), PRESIDENTIAL CANDIDATE: If Donald Trump is president --

(CROSSTALK)

CRUZ: -- your Second Amendment will go away.

(CROSSTALK)

CRUZ: You know how I know that?

(CROSSTALK)

UNIDENTIFIED MODERATOR: Hold on, Gentlemen. I'm going to turn this car around.

TRUMP: -- John Roberts -- Ted Cruz, with your brother, wanted John Roberts for --

CRUZ: -- your principle, and I'll --

(CROSSTALK)

TRUMP: You're the single biggest liar. You're probably worse than Jeb Bush.

(SHOUTING)

TRUMP: You're the single biggest liar.

CRUZ: And Donald has this weird pattern. When you point to his own record, he screams liar, liar, liar.

(CROSSTALK)

SEN. MARCO RUBIO (R-FL), PRESIDENTIAL CANDIDATE: I don't know how he knows what I said on Univision. He doesn't speak Spanish.

And second of all -- (LAUGHTER)

RUBIO: -- the second point I would make --

CRUZ: (SPEAKING FOREIGN LANGUAGE)

RUBIO: For a number of weeks now, Ted Cruz has just been telling lies. He lied about Ben Carson in Iowa. He lied about --

(CHEERING)

RUBIO: He lies about marriage. He's lying about all sorts of things. Now he makes things up.

JOHN KASICH (R-OH), PRESIDENTIAL CANDIDATE: I have to tell you, this is just crazy, huh? This is just nuts, OK. Geez. Oh, man.

(END VIDEO CLIP)

(LAUGHTER)

BERMAN: All right, guys.

Bruce, let me ask you this. There was a time in politics, like in a lot of campaigns, you would say things about the people you were running against, but you wouldn't call them liars. That's a pretty big charge. We heard it from more than one candidate. Is this good for the Republicans running for president now?

BRUCE HAYNES, REPUBLICAN CONSULTANT: Well, I think we're going to find out. I mean, our sense is that it isn't. I think when you talk to people who are in the debate hall that night, there was a universal word that I heard back, and that was "regretful." People weren't really pleased with the way that the Republican brand was presented. But, again, Jim Acosta said it really well, John, the Trump voters, they want Trump to take the fight to Jeb Bush. They tell me they don't want a fourth Bush term, and they really don't care how he goes about doing that. They're upset with the way Washington has worked. He's carrying that mantle forward for them, and more power to him. So it remains to be seen if that performance cost him a lot of votes or not.

BERMAN: You bring up a good point. Bruce, you know South Carolina. We haven't had a lot of reliable polling in South Carolina over the last few days. I'm wondering what you're being told from your sources on the ground about the state of the race right now. Who the people voting are?

HAYNES: I think what we're seeing is that there's nothing that really happened in that debate to discourage the Trump voters from coming out. It may have made them -- some of the things we've heard about the language and some of the things that people are saying about Scalia may have reframed the choice for some of them. Now it's like, oh, there's a specific decision a president has to make, and here's one. And what kind of experience would Donald Trump have in really assessing a field of candidates and nominating someone to the Supreme Court. That's something some people are going to think about. This week is the week that other candidates, like Bush, Rubio, John Kasich and Ted Cruz, have an opportunity to kind of rise above the den and compete for any Trump voters who might be going wobbly and take voters.

As far as the polls go, John, I think -- these debates have really been defining as to who the winners are. I personally, and the people I'm talking to, we want to see a couple more nights of calls and post debate. Kind of the two-night, three-night roll.