Full Episode: The Fight to Replace Antonin Scalia at the Supreme Court and The Donald vs. The Pope

GWEN IFILL : Two huge stories this week at the Supreme Court and on the campaign trail demonstrate why politics really matters, tonight on Washington Week .

PRESIDENT BARACK OBAMA: (From video.) The Constitution is pretty clear about what is supposed to happen now.

MS. IFILL : True, but what is happening now is the granddaddy of all political fights, in the wake of the sudden death of Supreme Court Justice Antonin Scalia.

SENATOR CHUCK GRASSLEY (R-IA): (From video.) I think that it should wait until the next election.

SENATOR HARRY REID (D-NV): (From video.) The president was reelected for a four-year term, not a three-year term.

OHIO GOVERNOR JOHN KASICH (R): (From video.) Look, Scalia dies and one second after he’s dead they’re already starting fighting about politics.

MS. IFILL : But grief quickly gave way to political positioning, as candidates prepared for contests in South Carolina and Nevada.

SENATOR TED CRUZ (R-TX): (From video.) I intend to make 2016 a referendum on the U.S. Supreme Court.

FORMER SECRETARY OF STATE HILLARY CLINTON: (From video.) This is pure, naked hostility and opposition to the president of the United States. (Cheers, applause.)

MS. IFILL : But first, Hillary Clinton has to get past Bernie Sanders and Ted Cruz has to get past Donald Trump.

DONALD TRUMP: (From video.) I have never, ever met a person that lies more than Ted Cruz.

SENATOR BERNIE SANDERS (I-VT): (From video.) Everything in my political gut tells me that we have the momentum here in this state. We’re going to win here in Nevada. (Cheers.)

MS. IFILL : And all that was before Trump got into a fight with the pope.

Covering the week, Peter Baker, chief White House correspondent for The New York Times ; Joan Biskupic, legal affairs editor for Reuters; John Dickerson, CBS News political director and host of “Face the Nation;” and Manu Raju, senior political reporter for CNN.

ANNOUNCER: Award-winning reporting and analysis. Covering history as it happens. From our nation’s capital, this is Washington Week with Gwen Ifill . Once again, from Washington, moderator Gwen Ifill.

MS. IFILL : As Antonin Scalia’s body lay in repose at the Supreme Court today, respects paid by the president and the public, his sudden death immediately threw three branches of government into an uproar. Add to that the crazy uncertainty surrounding any number of unsettled issues, legal and political, from immigration and affirmative action to abortion and birth control. So, Joan, exactly how much is hanging in the balance?

JOAN BISKUPIC : So much. You really have to go very far back in America to find someone whose death will so change our lives. This really could bring about a major shift in American law. But, before I get to the constitutional law part, just think of politics. It’s going to influence the election. And then in terms of Barack Obama, if he can manage to get a third appointment to the Supreme Court, think of that legacy the man will have. Three appointees, they’re all pretty – you know, two of them are young, just about to be 62, and Elena Kagan about to be 56. And then –

MS. IFILL : Sonia Sotomayor –

MS. BISKUPIC : Or, is about the one who’s about to turn 62. You know, and probably the new appointee will be of that generation also. And so you’re going to have that. And then, in terms of the constitutional law, so many of those cases that you referred to, Gwen, are decided by five votes. And if you bring in a liberal to succeed him, all of those things are going to change. And for decades, we have had a conservative majority. And for the first time in, frankly, the lifetime of many of us, we will have a liberal majority if this goes through.

MS. IFILL : But you’ve covered the Court as long as anyone. Tell me about the culture of the Court. How much of a shock is it when they – when someone leaves the Court in this manner, especially someone with such an outsized personality?

MS. BISKUPIC : It’s a complete shock. People don’t leave – you know, Chief Justice William Rehnquist was the last person to die in office. But he died on a September 3 ^rd before the first Monday in October.

MS. IFILL : And he’d been sick for a while.

MS. BISKUPIC : He had been sick. It was more expected. He had just turned 80. Justice Scalia next month would have turned 80. And we were sort of expecting it. But it wasn’t in the middle of a term. In the middle of a term, with a president of another party than who appointed him, it’s seismic. So the justices themselves I think are still in shock. And I think that all the many people who follow this, the culture of it, they’re just still rattled. Litigants are unsettled about what will happen next. And again, if you think back about movement conservatives, that Justice Scalia, he was part of that movement. And with him removed, so much can change.

MS. IFILL : Well, Manu, let’s go to the other branch of government across the street from the Supreme Court. The Senate, I was taken aback by how quickly the response happened. Literally within hours we saw Mitch McConnell’s response.

MANU RAJU : Yeah. It was really remarkable. And one reason why was the debate that John was moderating that night was happening. And McConnell needed to get out ahead of the Republican presidential candidates. He did not want to make it look like the Republicans were actually running the show. He wanted to show that he’s the leader, setting the agenda. And what is that agenda? He said that we need to wait until the next president to move forward on a Supreme Court nominee. And soon we saw essentially the whole party get in line behind him.

Now, over this past week we’ve seen Republicans starting to weigh in on that. One of the challenges for the Republicans this past week is they’ve been on a recess so they have yet to actually come and formulate their strategy. But what we’re hearing – you know, I’ve been talking to Republicans all week. And the sense that I am getting is that they’re probably going to not move forward with confirmation hearings, not have a vote.

MS. IFILL : Not even – not even hearings?

MR. RAJU : Not even hearings, not give him a vote – him or her a vote on the Senate floor. Why? Because they believe if they start down that process they’ll lose momentum, Democrats would have a chance – this nominee could have a chance to shine. We know that we’ve seen these confirmation hearings play out before. It’s very hard to draw blood, so to speak, on these nominees. It probably would be someone who’s pretty well-qualified. So they want to try to stop it in the tracks right away.

MS. IFILL : I want to ask you something, John, because you were on that stage with those Republican candidates. Did you expect them to get in line so quickly with what – with Mitch McConnell’s point of view?

JOHN DICKERSON : Well, at first it wasn’t clear how fast people would move from mourning the death of this conservative icon to the next question. And we were kind of wondering about that. And then suddenly the statements from the candidates were coming in, already leaping over and talking about the president shouldn’t announce. So that was – we felt like, well, they’ve already gotten in line within really, like, maybe a half an hour or an hour those statements were already out. So I was a little surprised. And it was difficult to find a balance between the proper reverence and going right into the political. But the system seemed to just absolutely gallop beyond us. And so they were ready to go.

MS. IFILL : Well, let’s talk about the galloping system, Joan, because you mentioned in passing the issues which are hanging fire here. And we were watching for them to hang fire, even before Justice Scalia’s passing. What would you say as you begin to order in your mind the key cases to watch, the ones that are the most significantly affected by this loss?

MS. BISKUPIC : Well, just for the immediate term, Gwen, we already had one of the most socially charged sessions going right now in years. The justices had already heard an important case that goes to the strength of public sector unions. That vote will probably change now without his fifth vote. And I think it would have been against unions in America. We have an abortion case that’s going to be heard on March 2 ^nd , now by only eight justices. It increases the chances that the Texas law that’s quite restrictive on abortion rights will not be upheld. But, you know, who knows. We haven’t heard those arguments yet. We have affirmative action up there. We have voting rights up there. And the president’s immigration policy – that’s going to be heard in April. And I think now the president’s immigration policy has a much greater chance than it ever would have had, without Justice Scalia.

MS. IFILL : Now, just remind us what the rules are here. Four to four means what?

MS. BISKUPIC : Four to four means that the lower court ruling stands. So if there was a lower court ruling against the president, it would stand. If there was a lower court ruling that favored him, then that would be in place, and no national precedent is set.

MS. IFILL : And it is clear that nothing that – any cases that had already been decided, because they meet right after these cases, after these arguments, in which Justice Scalia had a vote, his vote doesn’t count?

MS. BISKUPIC : Well, no, because an opinion is not ready to be handed down, a case is not ready to be decided until they have dotted all the I’s, crossed all the T’s, because – I think, you know, we’ve talked about this around the table before – the way they decide the cases is not just taking that vote. It’s then circulating drafts. It’s like a conversation in writing, deciding the law of the land through the rationale. So effectively Justice Scalia voted – you’re right, Gwen, he voted on all these cases that were heard up through the end of January. But he wasn’t just – he’s not just voting, he’s also going to decide – he was going to decide essentially the rationale. And nothing counts. Nothing counts anymore from behind the scenes.

MS. IFILL : Manu, let’s hop back across the street. We know what the Republicans’ strategy is so far. Do we know anything about a Democratic strategy to get at these things?

MR. RAJU : Yeah, they’re really just going to keep the drumbeat going. They’re going to scream to the top of their lungs saying that this nominee is not being treated fairly. I think as soon as the Democrats come back to the Senate next week we’re going to hear floor speech after floor speech after floor speech calling for at least a confirmation hearing. Then you’re going to see more press conferences. It’s going to be a really concerted message. Finally, Democrats have really struggled in this election year to come up with a compelling message. They believe that this is one that can really resonate, not just rile up their base, but also with independent voters in key states.

Now, of course, not just are we talking about the presidential election, but Senate elections too. There’s a very good chance Democrats could get back into the majority. They think that this could be key and hurt some of those vulnerable Republicans in places like New Hampshire, in Ohio, Pennsylvania, Illinois, Wisconsin, that could actually flip the Senate map. So watch for this drumbeat to really intensify. And Democrats think that once there’s actually a nominee, a person, it’s not actually a theoretic discussion, that this debate could shift.

MS. IFILL : OK, well, we’ll see whether they Democratic candidates are going to collaborate with this, as Republicans did as well, because it’s been a furious week on the campaign trail as well, as Republicans have been threatening to sue one another, Democrats have sparred over who is abandoning President Obama, and each side has played furiously to conservative Evangelicals for the GOP and blacks and Latinos for the Democrats.

MRS. CLINTON: (From video.) My campaign is really about breaking every barrier, because I believe, absolutely, that America can’t live up to its potential unless every single person has the chance to live up to theirs.

SEN. SANDERS: (From video.) Count me in as somebody who, if elected president, will help lead this country in the fight against institutional racism.

MS. IFILL : On the Republican side, Donald Trump has been fighting with the pope, who, after a week traveling in Mexico, told reporters that anyone who would build a wall on the border is not a Christian. Trump’s first response was tough.

MR. TRUMP: (From video.) For a religious leader to question a person’s faith is disgraceful.

MS. IFILL : Trump later softened his criticism of the pope, which is interesting for a man who has never hesitated to question others’ professed faith, John. So what was that all about?

MR. DICKERSON : Well, it was – you know, it’s interesting to figure. So is this going to hurt Donald Trump in South Carolina is one thing we should dispatch with quickly. There aren’t a lot of Catholics in South Carolina. Those who are in South Carolina are probably not big fans of the pope. He doesn’t poll well among Republicans. Also, if you were a person who had stuck with Donald Trump through all of the controversies and then suddenly this is what made you jump away? That person doesn’t exist. (Laughter.)

But Donald Trump moderated later in his remarks, because we’ve seen that a few times with him. He’s kind of – he’s kind of backed off a little, recognizing –

MS. IFILL : When he’s reading his statement he’s very tough. Later on, when he’s asked about it, he’s much more softened.

MR. DICKERSON : Yeah. And part of that is we’ve seen over the last few weeks his effort to kind of try to modulate a little bit, moderate a little bit, because he knows that he has a core of support but to build that support he needs to deal with some of those issues.

MS. IFILL : So let’s start with San Francisco. That was interesting. (Laughter.) With South Carolina. Where does that stand now in the Republican side? We have votes in 24 hours.

MR. DICKERSON : Well, it looks like it might be a three-man race, with Trump and Cruz, and then Marco Rubio taking that third-place slot, although Marco Rubio has been moving up. So what if Marco Rubio comes in second? That would be a huge blow to Ted Cruz.

MS. IFILL : Huge, yeah.

MR. DICKERSON : Donald Trump has been ahead in all of the polls. There’s a recent one, NBC/Marist poll that has it much tighter. If that’s true, and not an outlier, then it’ll be very exciting on Saturday. If it’s not, then the real question will be who comes in second. If Ted Cruz comes in second, that’s not great for him. South Carolina is a state with 65 percent of the voters in 2008 identified themselves as Evangelicals. That sets up well for Cruz. It’s also a kickoff state to what are the SEC primaries, which are – many of them are in the South, where he is likely to do well if the electorate stays the same as it is in South Carolina.

MS. IFILL : SEC being a sports metaphor, for those of you who know how I feel about sports metaphors. (Laughter.)

MR. DICKERSON : Yes. Thank you, Gwen, for rescuing those confused viewers. (Laughter.) Well done. And then Marco Rubio, after that disappointing performance in New Hampshire coming back, perhaps, to health in South Carolina with all of those endorsements from the establishment in South Carolina, trying to basically finish off his two challengers in the sort of mainstream Republican lane, Jeb Bush and John Kasich. If Rubio can do that in South Carolina that would be a big deal for him, because he’s always been saying: I want to be the mainstream alternative to Trump and Cruz.

MS. IFILL : And he got that big Nikki Haley endorsement this week, which couldn’t hurt.

MR. RAJU : And Jeb Bush is very nervous, and his supporters, heading into Saturday. I mean, if the – I talked to Lindsey Graham this week, who’s a big Jeb Bush supporter, and he said: If we’re not neck and neck with Marco Rubio or beating Marco Rubio, this is a problem for Jeb Bush. He needs to show some momentum, particularly after finishing sixth in Iowa, fourth in New Hampshire. Needs to be at least third or close to third, otherwise that’s a real big problem for his campaign.

MS. IFILL : Momentum has been very –

PETER BAKER : Big moment for the Bush –

MS. IFILL : I’m sorry, Peter?

MR. BAKER : Sorry. It’s a big moment for the Bush dynasty because, you know, brought out Barbara Bush, brought out George W. Bush, returning to politics for the first time, really, since he left the White House, which tells you where Jeb Bush is, because of course he wanted them kept behind stage for so long. Now he sees them as an advantage in trying to get back some of the people, and Donald Trump fighting with George W. Bush over whether he was really responsible for 9/11 or not.

MR. RAJU : Yeah.

MR. DICKERSON : Well, that’s one of the amazing things, is if Donald Trump does well in South Carolina, think of what he will have said and still endured. He will have said that George W. Bush lied to get America into the war in Iraq, and also that he was somehow culpable for 9/11. Trump goes on and off of that, but to say that out loud – I mean, that’s Code Pink kind of territory. And to be able to survive that – to be booed in two debates, the two most recent ones, in New Hampshire and South Carolina, and to well still, and to take a month of fire from Ted Cruz, who’s been in – you know, Ted Cruz is probably the best one to make the case against Trump. If he survives all of that, it will give us another reading about his durability with the Republican Party.

MS. IFILL : But momentum has been elusive for Jeb Bush, I think it’s fair to say. (Laughter.)

MR. RAJU : Yeah.

MR. BAKER : Yes.

MS. BISKUPIC : Well, and with Ted Cruz, if I don’t mind bringing us back to this other topic, will the Supreme Court vacancy help him, because now he’s talking about how, you know, he’s the candidate who knows the Supreme Court best. We know that he was law clerk up there to the late Chief Justice William Rehnquist.

MS. IFILL : And he’s changing his schedule to come back for the funeral tomorrow.

MS. BISKUPIC : Exactly right. Will that help?

MR. DICKERSON : And he’s running an ad in which he says basically the next president will be able to name a Supreme Court justice. And you don’t want to leave it in the hands of this guy. And then he’s running that footage of the Tim Russert interview with Donald Trump, in which Donald Trump says I’m very pro-choice. And so, yes, it’s – for two things. One, it points out – again, it gives him an opportunity to talk about Trump’s weaknesses on those issues that conservative voters care about. But it also is easy for Cruz to talk about the Court. It’s his comfort zone. So he can look confident and at his best when he’s talking about it.

MS. IFILL : Let’s save some time for the Democrats. They have a big caucus in Nevada tomorrow. And their South Carolina’s primary’s not till next week. But Hillary Clinton got a big endorsement today from Jim Clyburn. I don’t think anyone’s surprised, but timing is everything. And in Nevada, it seems like things have tightened up.

MR. DICKERSON : Jim Clyburn, the congressman from South Carolina, one thing about that quickly before we just back to Nevada, is I was down in South Carolina six, eight months ago. And the Clinton campaign was working through the Clyburn organization the rural churches in South Carolina, the African-American community, as if she were running against Barack Obama; in other words, with a kind of ferocity that makes – that explains why she’s up by 30 points in the polls in South Carolina.

Now, Nevada, the problem is that she was expected to do well there. It’s hard to poll in Nevada, but CNN had a poll where it’s basically 48/47, it’s basically even. What we’re all watching for there is, is Bernie Sanders able to reach into the 35-or-so percent minority vote in Nevada and pick up some votes there? Because the rap against him is that his votes are basically too liberal and too white for the Democratic Party. And so if he can show any inroads into a nonwhite constituency, then maybe he can build something – still a big maybe.

MS. IFILL : And the rap against her is that she’s not truthful. And she said in this interview with your anchor, Scott Pelley, when he asked her whether she’s ever lied: Well, I don’t think so. (Laughter.)

MR. DICKERSON : Yeah. So that’s – well, when somebody asks you are you going to lie to the American people, the answer is always, number one in the candidate handbook, is: No, I’m not going to lie to them, because we are all conditioned to politicians saying they’re not going to lie to us, and then lying to us. We’re used to that script. But when they can’t even say it just directly to the question, that exacerbates for her what’s an underlying problem.

MS. IFILL : Well, the question was, have you ever lied, which gets more complicated than will you ever lie.

MR. RAJU : Well, you know, what’s interesting about Nevada, heading in there, is that the Clinton campaign has been lowering expectations for a while. This was supposed to be the –

MS. IFILL : They have, ever since New Hampshire.

MR. RAJU : Ever since New Hampshire. This was supposed to be the state where they start to begin to show some separation from Bernie Sanders. And you heard the Clinton campaign saying, well, this is not actually as diverse of a state as we’re all making it out to be. Eighty percent white voters is what a spokesman had said, and that actually had angered Harry Reid, the Nevada Democrat, who said: They are looking at my old high school yearbook. (Laughter.) So clearly they are – the Clinton campaign is concerned that they may actually lose this state.

MR. DICKERSON : Harry Reid who got that caucus moved up in the process to get more minority voters in the process.

MS. IFILL : Well, it will be a test about whether the Latino vote is as strong as everybody says it is in Nevada.

We circle back now for a big-picture look at the Supreme Court battle that we saw breakout this week. Compared to past presidents, how unusual a position does this president find himself in? You’re our historian, Peter. Help us.

MR. BAKER : Well, the great thing about history is both sides, or every side, can find an example to point to and say, aha, see, this proves my point. Look, it is pretty unusual to have a justice die in office. As Joan already said, the last time was William Rehnquist. We knew he was not doing well, so that wasn’t a shock, the way this one was. The last one before that was 1954, with Robert Jackson. And the last time we had a justice die in office in a presidential election year was 1892. So we don’t have a lot of recent experience on that point. In fact, his successor, though, was confirmed seven days after being nominated. That’s not going to happen.

MS. IFILL : That’s not going to happen. (Laughter.)

MR. BAKER : Fair to say. Now, what Democrats will say is, fine, but we’ve confirmed plenty of justices in an election year. They happened to be from vacancies that came from the previous year, like Anthony Kennedy in 1988. He was the third choice for that seat, of course, after Bob Bork and Doug Ginsburg.

MS. IFILL : And it should be said Bob Bork changed everything and prepares us for where we are today.

MR. BAKER : Well, it did. That’s exactly right. And if you want to talk about history, Bob Bork is a pretty good starting point for the fight we’re about to have – interest groups, money, politics, ideology, all wrapped up into this really titanic battle, with the consequences that Joan has already outlined. And you can understand why the Republicans are saying what they’re saying, but there’s been no history of any president waiting a year – say I’m not going to make my nominee for a year, I’ll let the next person do it – for 11 months. That’s never happened before, and I don’t think it’s happening this time.

MS. IFILL : Well, let’s talk about the partisan nature of a – of a fight like this. Is that really a modern idea? Or is this something that has always been played out just underneath the surface?

MR. BAKER : Well, you know, as we said with the seven-day confirmation in 1892, it used to be the rule that nominees were confirmed in relatively quick order. But there have been moments where there were big, big partisan fights. I think of John Tyler, because why not? (Laughter.) John Tyler was president in the 1840s, and he had no party, basically, and the Whigs in Congress hated him. He sent up nominees nine times, kept sending them back – eight times. He only got one person in for two seats, the second seat left over for his successor. There are moments where this is a big, big fight. This is going to be one of them, and it’s not unprecedented. But it will be probably at a different level, at a higher level, with the advent of social media, with the presidential election at full throat. This is going to be something bigger than we’ve seen before.

MS. IFILL : But we know and you know, Joan, that Scalia was confirmed 98 to nothing. Things have changed a lot just since then.

MS. BISKUPIC : Yeah.

MR. BAKER : Well, he was confirmed 98 to nothing partly because he came – slid in the draft behind Rehnquist, who had a big fight being elevated from associate justice to chief justice. And having had that big fight, they kind of let Scalia go, right? And then they saved that fire for the Bob –

MS. BISKUPIC : Well, first Italian American justice.

MR. BAKER : That’s right.

MS. BISKUPIC : Even Teddy Kennedy, with his – in Massachusetts with his contingent there, he went for it. But I was just thinking, if we’ve got time, to mention in 1968, when LBJ tried to put –

MR. BAKER : Abe Fortas.

MS. BISKUPIC : – make Abe Fortas chief justice, and then that went into a protracted fight, and the power to name the next chief justice fell to Richard Nixon. And then Fortas ends up resigning for other reasons, and it took three tries: Harry Blackmun, who eventually succeeded him in 1970, used to refer to himself as “old number three.” (Laughter.)

MR. BAKER : Right, but the – but the point of your thing, exactly, is that the – is that Southern conservatives, both Democrat and Republicans, blocked a liberal president from putting his person in as chief justice. But in the end, the net result was they got the chief justice they wanted from Nixon, Warren Burger, but they lost in having Harry Blackmun as the associate justice who ended up writing Roe v. Wade .

MR. RAJU : It just seems –

MS. IFILL : You know – go ahead.

MR. RAJU : Oh, I was just going to say the judicial wars on Capitol Hill have just escalated by each successive Congress, each – every time one party does something, the other party seems to one-up them. I mean –

MS. IFILL : And it should be remembered this president joined in the filibuster.

MR. RAJU : Yeah, absolutely. I mean, and –

MR. BAKER : Something his – something his spokesman said this week for the first time he regrets.

MR. RAJU : Right, exactly. (Laughter.)

MS. IFILL : Yeah, now he regrets it. (Laughter.)

MR. BAKER : Surprising.

MS. IFILL : OK. Well, thank you all very much. It’s been an incredibly eventful week, and I’m glad you were all here to join us to talk about it.

Stay up to date with all of the results from the next round of primaries and caucuses with me and Judy Woodruff on the PBS NewsHour next week. As always, we’ll have more online on the Washington Week Webcast Extra , and that’s at PBS.org/WashingtonWeek. And we’ll see you right here next week on Washington Week . Good night.