Nation Mourns, Senate Fights, In Wake Of Justice Ginsburg's Passing
ANDERSON COOPER, CNN HOST: It is 9 p.m. in Washington where it never has been more apparent. We have three branches of government. The Supreme Court and the nation mourning the passing Justice Ruth Bader Ginsburg. The president scrambling to fill her seat. His campaign even selling t-shirts calling for just that. The Senate, meantime, is a battleground with fewer than a handful of Republican senators under pressure to either delay consideration of a nominee until after the election into a lame duck session or get onboard the president's fast moving confirmation train. A lot to talk about in the our head and the stakes of the country perhaps from decades to come could not be higher. CNN's Manu Raju starts us off.</s>MANU RAJU, CNN SENIOR CONGRESSIONAL CORRESPONDENT (voice-over): President Donald Trump is moving quickly to name his Supreme Court nominee to fill the seat of the late Ruth Bader Ginsburg.</s>UNIDENTIFIED MALE: Raise your right hand.</s>RAJU (voice-over): According to sources familiar with the process, three female appeals court judges appear to be among the frontrunners, Amy Coney Barrett, Barbara Lagoa and Alison Jones Rushing. But he has little margin for error to get his nomination confirmed to the bench before the November election. Trump and Senate Majority Leader Mitch McConnell can only afford to lose the support of three Republican senators in order to get 51 votes to get a nominee confirmed. But already two Republicans have said the nomination should wait until after the elections. The latest, Lisa Murkowski of Alaska, the lone Republican to vote against Brett Kavanaugh's nomination to the court in 2018. On Sunday, Murkowski said, "I did not support taking up a nomination eight months before the 2016 election to fill the vacancy created by the passing of Justice Scalia. We are now even closer to the 2020 election, less than two months out, and I believe the same standard must apply". But Murkowski would not comment on Sunday about whether she would oppose Trump's nominee in the lame duck session of Congress which will occur after the November elections and conclude in January. Similarly, Senator Susan Collins of Maine fighting to keep her seat has said the vote should wait until after the election. But her office has not responded to CNN questions about whether she would vote against a Trump nominee in the lame duck session if former Vice President Joe Biden wins in November. The battle over the nomination comes amid a furious fight for control of the Senate in November. And it has put some Republicans like Cory Gardner of Colorado in a difficult spot as he campaigns to keep his seat. In 2016, when Republicans refused to move on Barack Obama's nomination of Merrick Garland to the court, they argued it was too close to the election. Gardner said at the time, the American people deserve a role in this process. But on Saturday, Gardner refused to say if he would stick to that same position now that there's a Republican president, and just 44 days before the election,</s>SEN. CORY GARDNER (R-CO): There is time for debate. There is time for politics. But the time for now is to pray for the family.</s>RAJU (voice-over): Several veteran Republican senators including Chuck Grassley of Iowa have also declined to say if they think that nomination should wait. And the party's 2012 nominee, Senator Mitt Romney has so far declined to comment. Several Republicans in difficult races are aligning with Trump.</s>SEN. THOM TILLIS (R-NC): I voted for several hundred conservative judges including two on the Supreme Court and another one on the way.</s>RAJU (voice-over): Tillis sung a different tune four years ago.</s>TILLIS: We're going to let the American people speak.</s>RAJU (voice-over): Republican say times have changed because they now control both the White House and the Senate unlike 2016.</s>SEN. TED CRUZ (R-TX): It's a question of checks and balances.</s>RAJU (voice-over): But four years ago, Cruz said this.</s>CRUZ: This is for the people to decide.</s>COOPER: For the people to decide. Manu, you have some new reporting about the shortlist for nominees.</s>RAJU: Yes, that Amy Coney Barrett appears to be one of the frontrunners if not the frontrunner for this nomination at the moment. She's a federal appeals court judge. She actually has come up in conversations I'm told between Senate Majority Leader Mitch McConnell and President Trump over the weekend. Now, they've spoken more than one since the death of Ruth Bader Ginsburg and I'm told that Mitch McConnell has indicated to Donald Trump that Republicans know Barrett well, that essentially they would be comfortable with her nomination if she were to be put forward. Now, he hasn't been advocating for her necessarily, but certainly would support her if Donald Trump were to go that route. Now they've talked about the importance of nominating a female justice in the aftermath of the death of Ruth Bader Ginsburg. Of course, the president himself said that he would in fact name a Supreme Court, a female to the court. And Republicans of course will come back tomorrow, they'll meet for the first time on Tuesday to discuss all these. But we expect that nomination to come forward potentially early in the week as Republicans see. They're going to count the votes to see if they have enough to get it done before November, Anderson.</s>COOPER: All right, Manu Raju, appreciate the reporting. Thank you. Shortly before airtime, Senate Minority Leader Chuck Schumer talked to reporters including about what Democrats might do when the president gets his pick. But Democrats take the White House and Senate.</s>UNIDENTIFIED MALE: If the president's pick is approved. And Biden wins the election, should he have more Supreme Court justices?</s>SEN. CHUCK SCHUMER (D-NY): Well, it will be a decision that comes to the Senate. We first have to win the majority before that can happen. But once we win the majority, God willing, everything is on the table.</s>COOPER: Joining us is Democratic Strategist Paul Begala, no stranger to hardball and author of "You're Fired: The Perfect Guide to Beating Donald Trump". Also, CNN Political Commentator Scott Jennings, former special assistant to President George W. Bush and a longtime political adviser to Majority Leader McConnell. With us as well, CNN Chief Political Analyst Gloria Borger. Gloria, what do you make the news tonight that McConnell is indicating to President Trump the GOP senators would be comfortable with judge Amy Coney Barrett?</s>GLORIA BORGER, CNN CHIEF POLITICAL ANALYST: Well, I think she clearly is a frontrunner and she's kind of the opposite of Ruth Bader Ginsburg. It's clear she would invalidate the Affordable Care Act. She is pro-life. And the question I think, with this nominee, if she becomes a nominee is would she galvanize suburban women against Donald Trump? I mean, that, that is a big question. And so she would be controversial for Democrats but not for Republicans. She is a likely choice.</s>COOPER: Paul, I know you've been talking to Democrats on Capitol Hill. How do you see their strategy now?</s>PAUL BEGALA, CNN POLITICAL COMMENTATOR: Well, the most important thing they're trying to do is frame this as more than just like the power play bullying process argument, but instead, to make it about the Affordable Care Act. First and most importantly, the Affordable Care Act, with its protections for pre-existing conditions comes before the Supreme Court on November 10th, November 10th, the Texas versus California case with the Fifth Circuit invalidated the whole ObamaCare law especially this very popular pre-existing condition rules. That's the thing they want to focus. And then they're also going to talk about other cases that the court will decide like Roe as Gloria mentioned, like labor rights, like marriage equality, like environmental protections, but most importantly, they believe this is a healthcare election and this is a health care fight over this nominee.</s>COOPER: Scott, I want to just show our viewers what Majority Leader McConnell said back in March of 2016 when President Obama was not nominating Judge Merrick Garland to fill Justice Scalia's seat on the Supreme Court. Let's play this.</s>SEN. MITCH MCCONNELL (R-KY): This nomination ought to be made by the president we're in the process of electing this year. This nomination ought to be made by the next president. We don't intend to take up a nominee or to have a hearing. And it is a good opportunity to reiterate our view that this appointment should be made by the next president. This vacancy will not be failed this year. We will look forward to the American people deciding who they want to make this appointment through their own votes.</s>COOPER: Scott, I mean, I understand the politics of it but I mean, is it not just blatantly hypocritical? I know that he will argue that, you know, there were -- it was a different rule but he's talking about the voters deciding and an election actually is now much closer, in fact, is already underway.</s>SCOTT JENNINGS, CNN POLITICAL COMMENTATOR: Well, for McConnell, Anderson, the issue wasn't how close the election was, the issue was, was that the White House was controlled by one party and the Senate was controlled by another. And see a split control go all the way back to the --</s>COOPER: I mean, was that really the issue?</s>JENNINGS: They were split control. That's number one. Number two, you have to go all the way back to the 1880s to find a similar situation where someone was confirmed. Now in this particular case, you have the White House and the Republicans in the Senate, obviously under same control, Republican in the White House as well. And it's very common, in fact, when that situation occurs for presidents and the Senate to confirm a Supreme Court nominee. So it's a different political situation. Senator Lamar Alexander of Tennessee, I think, had the best punditry of the weekend today. He said no one should be surprised that a Senate Republican majority is going to vote on a Republican president's nominee. And so they're going to move forward with this. You mentioned Barrett, McConnell likes her, the president, by the way, had a great list. And I know the senator like several of them on there, but Barrett is a good choice. She ideologically fits the Senate majority and they're moving forward. And I will just say politically, it is not an option for Republicans to lay back here, their base, their voters, the people in their party that support them and that elected them in all these states, they would be apoplectic if Republicans laid back like this. So it's full speed ahead for the Republicans.</s>BORGER: Yes, but honestly, with all, with all due respect, Scott, the president can nominate somebody and that's fine. He's president United States. But for the Senate to vote not before an election, we are in the middle of an election right now as Anderson was pointing out, people are voting right now. And when you look at what Mitch McConnell was saying, there is only one way to interpret this, and that is that he wants to jam this through as quickly as he can because he has a couple of goals right now, and you know him better than anybody, he's got a couple of goals. One is he wants to keep control of the Senate, and the other one is, he wants to pack the courts. And this is the big prize here. So let's not pretend that it's about all these other things which is who controls the Senate and who control -- this is just raw political maneuvering on Mitch McConnell's part, and I don't think we should call it anything else.</s>JENNINGS: I mean, it's also it's also just -- I mean, just if I may, Anderson, it's not just maneuvering, it's also the constitution, right? There's two institutions at play, the White House and the Senate, they have an equal, they have an equal hand in this. And it's the president's job to nominate, and it's the Senate's job to do with it what they think is right at the time.</s>BORGER: Right.</s>JENNINGS: And in this political instance, Mitch McConnell and the Republicans think it's right to vote on a Republican president's nominee. No one should be surprised that they're doing that.</s>BORGER: In the middle of an election.</s>COOPER: Paul, no one should be surprised. I mean, hypocrisy is, you know, abounds everywhere but it's still pretty unpalatable to have a dressed up as something else.</s>BEGALA: Right. But it's -- this is not what about politics, this is not about the election. This is not about November 3rd Election Day, it's about November 10th, Affordable Care Act day. I'm telling you. Mitch McConnell's base is not all those wonderful people who vote for him, it's the financial people who are flooding his party with dark money. And at the top of that list are the insurance companies who are going to be in front of the court through the attorney general of Texas, Ken Paxton, also under Dimon, and asking them to throw out protections for pre-existing conditions that Congress can't do it because it's very, very popular. Republicans tried 70 times, they can't do it because the American people want those protections. So Mitch McConnell and Donald Trump has to get this judge in there before November 10th so he or she can invalidate the Affordable Care Act, something they cannot do politically through the normal political course. That's what this is about. It's about money and it's about the Affordable Care Act.</s>COOPER: Scott?</s>JENNINGS: Yes, with all due respect to my friend Paul, if you're worried about dark money in politics, Democrats have a lot more of it in this election than Republicans. Number two, this isn't about the next month or two months, this is about the next 30 or 40 years, having a majority of Supreme Court of conservatives of people who believe in originalism and the text of the constitution for Republicans --</s>BEGALA: And pre-existing conditions?</s>JENNINGS: -- for senators, for base activists, this is everything. And so it's not about a case in a month, it's about the next three decades. And that's --</s>BORGER: Well --</s>JENNINGSL: -- that's why Republicans are so excited about the opportunity.</s>BORGER: I'll agree with you on that, Scott. I do think it's about the decades to come. And I think what we're looking at is -- it's a moment that will galvanize perhaps both sides but there is a point that if Mitch McConnell takes this risk and if he tries to jam through before the election, that this could backfire for a very long time. And, and, you know, he -- it is a, it is a galvanizing force for the Democratic Party to talk about what this will do to the Affordable Care Act, for young women who may have thought, you know, I don't have to vote for this election, I liked Ruth Bader Ginsburg, I'm sorry she's gone. But now they see what who the president might want to appoint, I think there is a real risk here of this boomeranging for Mitch McConnell and for control of the Senate. We don't know for sure, of course, yes, but there is that possibility.</s>COOPER: Let's -- we'll have to see. Paul Begala, Scott Jennings, and Gloria Borger, thank you. I really appreciate it. Actor Dan Rather, excuse me, anchor Dan Rather joins us shortly. We'll talk to legendary newsman Dan Rather. And next, a live report from the growing people's memorial outside the court and what we know about how the court is memorializing Justice Ginsburg. Later, one of the women she battle for even though it had to be in dissent from the majority, Lilly Ledbetter joins us.