tv CNN Newsroom With Poppy Harlow CNN February 13, 2016 4:00pm-5:01pm PST
a ranch in texas. he told his friends that he was not feeling well before he went to bed last night. he did not show up for breakfast this morning. he was found unresponsive in his room. justice scalia was the leading conservative voice on the high court. he was its longest serving justice after justice stevenson and appointed to the court by former president ronald reagan in 1986. reaction to his death coming in from across the political spectrum. the white house saying if president obama was informed today of justice scalia's passing that the president and first lady extend their deepest condolences to the family. we're also told by the white house we will hear more from the president on this later tonight. former george h. bush said, "the appointment of antonin scalia to the united states supreme court
was one of ronald reagan's many enduring moments and he was the sharpest constitutional intel elects to ever serve on the bench. our heartbreaks today for our family and especially for his wife maureen and nine children and extended family. his death is a great loss for all of us. earlier this evening, john roberts confirmed the death of antonin scalia in a statement reading, "on behalf of the court and retired justices, i'm sad to report that antonin scalia has pass aid way. he was an extraordinary individual and admired and treasured by his colleagues. his passing is a great loss to the country that he so loyally served. we extend our deepest condolences to his wife maureen and his family. we have full coverage this evening. chief washington correspondent joe johns first with a look back at the justice's life and
legacy. >> reporter: the first italian-american to sit on the nation's highest court. >> justice scalia has a pugnatious personality and in his early days of court that came out where he was the most aggressive questioner and the memos that were called nino grams inside the court had a galvanized effect on the justices. >> reporter: he 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 for america's law and constitution. >> feisty. he's very candid about how he feels about things. loves to call it as he sees it. completely not pc. in fact, prides himself in not
being pc on the bench in court. >> italian from queens. this is the top of the hill. >> reporter: a sharp mind combined with a sharpen allowed scalia to make his point both to the pleasure and disappointment of the colleagues and public. >> he's very good, especially with audiences that are not predisposed to liking him. he's disarming and kind of sharping in his own way. >> reporter: antonin scalia was the only child and his parents instilled a love of debate and words. >> i studied real hard. >> reporter: he was a top student at public and private schools in the city. here he's leading his high school band in the fifth aef parade in 1950. his interest in law began in college and so, too, in interest in maureen mccarthy, with whom he later married and had nine
children. his embrace of conservativism attracted the attention of the republicans and he was appointed to the high court in 1986. there, he developed a reputation as a reliable conservative. in his own style, he helped liven the face of the high court. >> some of the other justices, including the justices already 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 ask questions, too. >> reporter: on abortion, homosexual rights, scalia clashed early and often with more moderate or left-leaning bench men. >> at one extreme, he would alienate some of his colleagues if he was trying to get anybody to sign an opinion. it was harder when he would use more combative language. but, you know, as much as they would say i'd like to strangle
nino, he was there. >> reporter: he set off a creative and some say cruel style in his writings. he once referred to the junior -- in a closely divided abortion case, he slammed sandra day o'connor's view as perverse and irrational. there was admiration from young conservatives who created books and websites in tribute but controversy, too. a hunting trip with vice president cheney over access to privileged documents. a scicilian gesture, he called it dismissive in nature. and this on the war on terror. >> war is war and it has never been the case that when you capture a combatant, you have to give the majority in your civil courts. it's a crazy idea to me.
>> reporter: to thy ownself be true. feared and celebrated personal levity. >> certainly remembered as a larger than life figure, larger than bench figure, someone who embraced both the law and a life beyond the court. >> he will go down as one of the great justices in the history of the supreme court. i think that his clarity of thought with writing, you know, will be very difficult to match. >> reporter: a judge who had a well calculated conservative view of the law and its limits on society. >> i'm not driven. i enjoy what i'm doing. as soon as i no longer enjoy it, i am out of there. >> and he enjoyed it the entire
way. he's died at the age of 79. joining me now, former clerk for justice scalia, now general counsel of our company, time warner. thank you so much for being with me, paul, i'm so sorry for your loss. i know you two remained close. >> thank you very much, poppy. and let me start by offering my condolences to mrs. scalia and his kids and grandkids. he loved his family so much and my heart goes out to them now. >> can you tell us a little bit about him as a man, as a friend? >> yeah. you know, he was a pure joy to work for. he cared intensely about getting the answer right. he cared nothing about who was a
friend. politics didn't matter to him. he cared so much about getting the answer right under the constitution or if he was interpreting a statute. i worked with him when i was 27 years old. he had locked himself in the office and it was no longer a supreme court justice and student just out of law school. it was whoever made the best argument prevailed. he loved that. he loved to mix it up. he often said to me that if he could change one thing, it was he struggled long and hard with what he thought the right answer was and joked to me, when he wrote the case, he wrote it with a great deal more certainty than he may have had while he was trying to figure it out. >> let me ask you a question. it's jeff toobin here. so i've been talking about an
originalism and trying to explain why that's such a significant idea for the supreme court. what's original itch and why is it associated with justice scalia? >> well, you know, the originalism is also texturalism. what's important about that idea is that in a system of divided government the default rule is that we have a democracy and the people vote and the majority wins. and how he viewed the constitution is as an exception to that. but there were certain things, like the first amendment, freedom of speech that we wouldn't put up to a vote. but when you view constitutional rights in that manner as an exception to democracy, it leads to you, i think, a much narrower
or stricter interpretation of the constitution because it's a grave and serious thing to say that people cannot do decide for himself. so he adhered to the view that said, look, if we're going to take certain things out of the political process, if we're going to say that the people can't decide through their chosen representatives, we can only do that with a text of the document and the original intent of those who wrote the document is fairly clear. a defender of democracy when you view it that way. sorry, poppy. go ahead. >> no problem. very few people have actually gotten this opportunity like you have to clerk with him, to see the inner workings of it and how his brilliant mind worked, whether you agreed with his decision or not. can you take us into, a, the side of him that was so funny, the humor is what we hear so much about. and also into his unique
friendship with justice ruth bader ginsburg, his ideological contrast. >> sure. justice scalia was not only a very warm but kind man, he was a very engaging, a very interesting and broad and very witty and funny guy. and in a town like washington, d.c., that's become increasingly partisan, he's a man who always had deep and enduring friendships on both sides of the political i'l political aisle. he could see the good and funny and interesting in everyone. you know, he was -- he had a tremendous wit. he just had a tremendous wit. and it many friends all over town. as you know, justice ginsburg
and he would always say that they were sort of each other's best friends. there were many other on the other side of the aisle. he was an engaging man. i have many other stories, none of which i'll cover with you here, but the sharpness of his pen reflected also his wit and his fun. he was -- you know, people may not believe this, he was an absolute teddy bear to work for. he was just warm and kind and not demanding and funny and, you know, i used to describe being in his chambers and helping him decide cases as much akin to being around the dinner table with my mom and dad. it was a no-holds bar a lot of fun. sometimes saucy language. and all that mattered was that we got to the right answer.
>> talk about his influence in one specific area of the court, which is oral argument, because when we graduated from law school, oral arguments at the supreme court were pretty sleepy affairs. the lawyers talked for a long time. when justice scalia arrived, oral argument changed and it has remained changed. you've argued before the court, you've watched the court. talk about how he influenced how the court interacts with the lawyers. >> well, as you know, jeff, you and i graduated from law school and it was an older court, a less active court and justice scalia was one of the new younger justices appointed. beyond just his youth, you know, i think he neafelt that oral argument was a way to communicate with the other justices, to test the arguments of the applicants rather than to just listen to it.
to force people to face the hard questions. you know, he very much believed that, you know, you could read the briefs and they both sound quite good. what you really needed to do was test the proposition in oral argument, see if the person could defend their position. oftentimes, you know, against hard hypotheticals but it was also i think a way for him to communicate the right -- i don't know if communicate is the right word but in some ways to raise points with his colleagues, you know, who may not have been either seeing it the way that he was seeing it or considering what he thought they would consider. but, boy, it certainly made arguments more lively. >> oh, yeah. >> i think it made it much better. >> and it's really because of justice scalia that oral argument changed so much at the
supreme court. i mean, the court now, it is rare for an advocate before the supreme court now to get three sentences out before the questions start. and that's completely different how it was before justice scalia joined the court. of course, it's only eight justices who are asking questions because clarence thomas doesn't speak, just as a parenthetical, february 22, a couple weeks from now, will mark ten times from now since justice thomas asked a question. but the other eight have followed justice scalia's example and they are in the face of the lawyers all the time and that -- >> and those other questions we publicly hear about even though we don't have cameras in the court, we get drippings of. >> absolutely. and justice scalia uses those questions not only to illicit information but more often, i think, and this is to the other justices that followed him, to use those arguments as
opportunities to make his case to the other justices. don't you think that's in part what is going on, paul? >> yeah, i would agree. pretty much everyone has followed suit. justice ginsburg has become equally adept at it. >> paul, before i let you go and thank you -- go ahead. >> no. go ahead. >> i was just saying, before i let you go, i was very interested in how he changed you as an attorney, how he changed your legal mind, how he shaped you. >> well, you know, first of all, i have to thank him every day for the opportunity he gave me to work for him and to work at the court, which certainly changed my career. but, you know, he also taught me -- two other things. one, he taught me how to care intensely about what the right answer was and to think logically through a problem. kind of unclouded by either the
politics or the -- some of the context and really get to the nub of the issue. he also taught the -- a great deal about how to write. he once -- when he hired me he looked at me and said, do not try to imitate me. we gave him the raw and then turned it into that pros of his. but you couldn't help but be seated at his knee and not learn a little bit about some special legal right. he was a very special man. he was an extremely warm man, jeff. you know that. incredibly fun. i'll tell one of the stories a couple of years ago. i saw justice scalia and he said i think i have an interest in hunting and i looked at him and
said, you know, your honor, i think it's going to take more than that. >> he did. that was the thing. he did get ee llena kagan interested in hunting. >> what a defining parlts of your life to be able to clerk with him and remain close with him. >> my pleasure. and just a closing thank you to him for everything he did for our country, everything he did for those of us he touched. thank you for having me on. >> no question. paul cappuccio, general counsel for time warner, a very close friend of scalia, of the justice. thank you so much, paul. i appreciate it. i want to bring some breaking news into you. we have just learned that president obama will nominate -- he will nominate someone to replace justice antonin scalia, according to sources telling cnn, this is major deal, as we
remember the life, the legacy of this chief justice, there is also the politics and the fact that he was often a deciding vote on a court that now with eight justices is pretty evenly split between democrats and republicans. we've already heard jeffrey toobin, a number -- a number of presidential candidates coming out, senate minority and majority leaders coming out on different sides of this. should the president nominate someone or wait for the next president to take over? we're now learning that president obama will indeed bring a name to the court. you believe you know who that name will be? >> i think there is one candidate who is a very likely nominee to the supreme court. his is a young judge, a 48-year-old judge on the d.c. circuit, the second most important court in the country. he's an indian-american, a remarkable personal story. grew up in kansas, big high school basketball star, when to stanford law school, worked in the solicitor general's office,
was confirmed by the senate in 2013 97-0. and that's an enormously important fact. >> just 2 1/2 years ago. >> just 2 1/2 years ago. for if the president were to nominate him, he could say, how could he be confirmed for a lifetime judgeship 97-0 and now you won't even give him a vote? >> yeah. >> so that is -- you know, that's the political context.
>> mitch mcconnell, the majority leader, has said no nominee is going to get a vote. this is why control of the senate, which party controls the senate is enormously important because it is not just -- it's the control of the agenda. now, whether democrats could somehow force a vote, that seems unlikely, although it is certainly possible that there could be some procedural
attempts. how president obama persuades someone to accept a nomination to the court when the senate has said they will not be confirmed under any circumstances, that becomes difficult. >> and stay with me because i want to bring in our chief political correspondent dana bash. look, we already know the president says that he will nominate someone and this is after mitch mcconnell came out just about an hour ago and said, no, this should be left for the next president. >> reporter: that's right. and
as you were talking, we got a statement from the senate judiciary chairman who would have to take this up and begin the proceedings for any kind of nomination process. not surprisingly, he is totally with his leader, mitch mcconnell, on the idea that he does not want to move any kind of nominee, no matter who they are, saying that, from his perspective, this is chairman chuck grassley, it's been standard practice over the last 80 years not to elect supreme
court justices during an election year and criticizes president obama trying to push his agenda through the courts and it's important to elect a new supreme court justice. you have the intensity from the statements, the democrats, harry reid and chuck grassley's democratic counterpart on the important judiciary committee saying, no, no, no, we're going to advocate our constitutional responsibility in the senate if we don't take this up and with what is nearly a year and jeffrey can talk about the history of this and whether or not grassley is right about not doing this in an election year. generally, not always, but generally, there is a chance to take a moment because the justice is retiring. now it's just a vacancy. this is obviously a sudden
death. >> jake tapper broke this news, just learning that the president will nominate someone to replace justice antonin scalia. what's your take, dana, if i can call you a washington insider, someone who covers this inside and out? are you surprised to hear that from the president just three hours after we learned of him passing? >> no, i'm not at all. because just as you're hearing from the democrats on capitol hill saying it is their constitutional responsibility to push someone forward, it is the president's responsibility to nominate someone. it doesn't surprise me at all and i would expect what the president is going to say is not only is it his responsibility in general but it is still 11 months until a new president puts his or her hand on the bible and is sworn in. so that's a long time to have a vacancy on the supreme court, the highest court in the land, especially as you all were talking about, given the fact that this particular supreme court has been historically
split on most decisions, monumental decisions, 5-4. now we're going to have an even split. no. i'm not surprised at all that president obama is doing this. and one thing i want to point out, really quickly, is it's important to know who runs the senate is. also, we are so if deep in this presidential election year and it is another reminder to all americans how consequential it is, who you pick to be your president is. it's not just the president. it's the president picking the justices on the supreme court that have so much power over so much that goes on in our daily lives as americans. >> no question. david axelrod, former adviser to president obama, cnn political commentator calling this a seismic event, as you know, dana. please stay with me. jeffrey toobin will be with me. we'll continue on this i can braing news. before i get a quick break in, i want to show you a poignant,
beautiful moment from the last hour. the flag outside the supreme court. we will pull it up for you. there you have it. being lowered tonight just as night fell on washington, d.c., to half-staff in honor of a man who served on the nation's highest court, antonin scalia for 30 years. we'll be right back.
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we want to update you on the major breaking news this evening. the death of u.s. accesupreme c justice antonin scalia. we have just learned that the president, president obama, will nominate someone to replace antonin scalia. the justice, who served on the nation's highest court for 30 years, died in his sleep of natural causes during a hunting trip at a ranch in texas. he told friends he didn't feel well last night. he went to bed and did not show up for breakfast this morning. he was found unresponsive in his bedroom. he was a leading conservative voice on the high court and its longest serving justice. he was appointed to the court by president ronald reagan in 1986. reacting to his death and reaction is really coming in from across the political spectrum. we do expect to hear more
tonight from president obama. that's according to the white house. also, senator chuck grassley just issuing this statement, "the fact of the matter is that it has been standard practice over the last 80 years to not confirm supreme court nominees during a presidential election year given the huge divide in the country and the fact that the president, above all others, has made no bones about his goal to use the court to circumvent congress and push through his agenda. it only makes sense that we defer to the american people who will elect a new president to select the next supreme court justice. reince priebus is joining me now. thank you for being with me. >> thank you very much. >> i certainly wish it was under better circumstances and obviously it is very important tonight to remember the man that he was, the father of nine, the grandfather of 28, the man with an incredible sense of humor.
but while i have you, i do want to ask you about the politics. president obama, according to our jake tapper, will indeed nominate another justice to fill justice scalia's seat. your reaction? >> well, first of all, i think the most important thing is to remember the family, remember justice scalia, remember his kids, grandkids, you know, pray for peace and their family. i think that's what is most important. the politics, there will be plenty of time for the politics but are to tonight it's best that we remember the family and obviously an incredible american in justice scalia. >> it's interesting because we have already heard some of the candidates weighing in. ted cruz saying that we should wait for the next president to choose a justice, mitch mcconnell saying the same thing, harry reid saying that the president should make a nomination. at this point, you don't want to jump in? >> well, i mean, for me, i mean,
as chairman of the republican national committee, my job is always politically charged by nature. you know, i leave that up to the leadership of the united states senate to make their choices, especially on a night like tonight. i think you ought to take your direction from the leader of the senate, mitch mcconnell. he's in control of the senate. he's in control of the votes. i think i would just take direction from mitch mcconnell at this point. >> all right. reince, i want to bring in my colleagues, dana bash, chief political correspondent and jeffrey toobin, senior legal analyst and expert on the supreme court. dana, first. >> mr. chairman, i know you want to take a pause and remember the man. this is an incredibly sad day for his family and we have been talking about that. but because you, your job is political, also exclusively as chairman of the republican committee, what do you make of what poppy was just talking
about? do you think if mitch mcconnell, as the chairman -- as the leader of the senate, the person who is in charge of the agenda, if he said, okay, i will move ahead with a nomination, do you think that it would just be an all-out republican revolt? is that why he's doing this? >> i don't know, dana. i think it's best to let that go for tonight and deal with that potentially in the weeks to come. i really don't think right now me -- quarterbacking the politics and whether there's going to be an explosion or not, it doesn't feel right right now to have that conversation. i think it's pretty simple. watch mitch mcconnell, he's in control of the senate, look at what he says and my guess is that's what's going to happen. but, you know, that's about as far as i'll take it for tonight. we're getting ready for a debate. obviously we're sad about the news and i just feel hike i'm in a really -- i'm in the right place, i think, as chairman of the party to take that position
at least for tonight. >> you know, reince, it's interesting because when you look back at 1986, the fall of '86 when he was confirmed, he was confirmed unanimously, 88-0. it shows how things have changed. >> well, i mean, certainly lately that's the case. things are very politically charged and obviously both parties are pretty adamant and i think the country is pretty split. so we've obviously been through a few pretty charged presidential elections and that's where we are right now and i think we have to put our best candidate forward. that's what we're going to talk about tonight. i'm sure we're going to talk about justice scalia and his legacy and what is means for a country moving forward. i'm sure our candidates are going to talk about those issues that are really important. i mean, picking a president who is obviously -- it's a very
solemn reminder about the types of decisions a new president has to make and so i'm sure those are things that our candidates are going to talk about tonight. >> reince, can i ask you a question about how republicans will look at this issue? if, as it seems likely that the republican leadership in the senate says no vote, what about vulnerable senators like ron johnson in wisconsin or pat toomey in pennsylvania? if their constituents say to them, why don't you do your job and vote on a nominee, are you concerned about that? >> i'm not. and i think tonight is more about reflecting on a great american and an incredible justice and just a conservative scholar on the court. that's what tonight is all about. and i'm sure those conversations are going to be happening next week and in the weeks to come. so i think -- like i said before, i think taking direction
from the leader of the senate is a good place to go because he's the leader of the senate and you need the senate to confirm, obviously. >> chairman reince priebus, thank you very much for being with me. i know what a busy night it is for all of you there at the debate. i do wish, again, this was under better circumstances but thank you for taking the time. >> you bet. thank you, everybody. all right. we'll be watching the debate tonight. before i get to our pamela brown. jeffrey toobin, he kept saying that tonight should be about the man. understandably. in many ways, it's about remembering this man. can you just talk to me about justice scalia professionally and also what we know about him personally. oftentimes, the public doesn't know that much about him outside of the bench. >> right. the unusual thing about justice scalia compared to the other justices is, you could get to see what the man was like by watching him in action because, you know, he transformed oral arguments at the supreme court when he joined in 1986.
he -- it used to be a pretty sleepy place. the lawyers would talk and there used to be a question and answer here and there. justice scalia was always in their face. he was like, what about this, what about that, what about this hypothetical? and he did it in a classic and often sarcastic way. he had a real personality on the bench, which was his personality off the bench. i mean, this was not a shy and reclusive person. the job of supreme court justice is basically to sit in your office and write. >> right. >> and a lot of them have personalities that reflect that kind of -- >> but not him. >> not him. >> he had this fascinating and intriguing relationship with ruth bader ginsburg who could not disagree with him more on his decisions. >> because he also had a life outside of the law. he was a big music fan, an opera fan, which is something that he and ruth ginsburg loved.
he was a great connoisseur of italian food. ruth's husband was a famous gourmet chef and he would make an elaborate feast that the scalias and ginsburg ate together. he had deep, rich friendships. he liked to argue with his friends as well as his adversaries and someone who lived with his wife maureen who was a frequent visitor to supreme court oral arguments. he had nine children. his son eugene scalia, very distinguished lawyer in his own right, one of his sons is a catholic priest. he had a big, rich life that befit his big, rich legacy on the supreme court. >> first italian-american nominated to the court. jeffrey toobin, thanks for being with me. i want to bring in justice correspondent pamela brown. you had this extraordinary
opportunity to be in the high court and see this man in action? >> absolutely. they say that so often the justices have already made up their minds as they go into oral argument so for reporters like me, it's really a chance at the window to see what the justices are thinking and i have to tell you, poppy, whenever justice scalia spoke, you knew exactly what he was thinking and which way he was going to go on a case and in many ways he was a showboat during oral arguments. before justice scalia, oral arguments were a little sleepy and then it was turned into a form of entertainment, he often used colorful language and right off the bat start asking questions and just as reporter being inside the supreme court for these cases, particularly the high-profile ones like obamacare and others, it was fascinating to be in there and see him in action. and poppy, i found this quote from justice kagan that she said in a speech recently and it sums
up the impact that justice scalia is leaving behind. as you know, justice kagan is on the other side of the spectrum when it comes to ideology but she said justice scalia's ideas on the rule of judges in society, on the practice of judging has transformed the term of legal debate in this country. he is the justice who has had the most important impact over the years on how we think and talk about the law. and i really think that sums up the legacy, poppy, that he is leaving behind here. >> and what does it mean, pamela, sort of practically speaking to have a bench of eight in an election year and one month out from one of the most pivotal abortion cases in years? >> absolutely. poppy, you cannot express how significant this is in words.
including abortion, immigration, affirmative action and all of these big issues and now you have eight justices on the bench, four liberals, four conservatives and among those four conservatives, you have justice kennedy, who is often the swing vote in these big cases. so this completely changes the dynamic, poppy, and it could be tough for the conservatives because the vacancy may likely not be filled until the next president takes over. there will likely be eight judges and if there's a 4-4 tie, the lower court's decision will be held. for example, in the case of immigration, that -- if it's a 4-4 tie, that would not bode well for president obama because of the way that the lower court said that he ruled outside of his scope under the constitution. and it's important to note here, we've been talking about the
fact that there is this vacancy, what's going to happen. traditionally, poppy, as you all have been talking about, a supreme court nominee is not confirmed the year of the election. as dana reported earlier, the president is now saying that he will nominate someone to fill justice scalia's vacancy. but it would be unlikely, based on tradition and based on the fact that you have republicans in it as well. poppy? >> pamela brown, thank you so much. what as experience it must have been for you to be in the court and see it all. thank you, pamela brown, our justice correspondent. very quickly, jeffrey toobin, what happens now to the cases that are open before the court that haven't been decided but have been heard? >> no decision at the supreme court is considered final until it's announced. the practice for how the supreme court works is cases -- they file briefs and then there's an argument and then on the friday
that the cases are argued, they have a secret conference and then the chief justice, if he's in the majority, assigns the opinion. the justices write their opinions, someone might write a dissenting opinion but nothing is final until it's actually announced in open court. so the court term begins on the first monday in court. they have been hearing arguments for four, five months by now. some decisions have been announced but many decisions have not. none of those are final until they are announced. so if there are decisions out there with four justice majorities without justice scalia, they will not be majority opinions of the court. so in addition to mourning, there's going to be scrambling going on at the supreme court. >> sure. >> if the decision was 9-0 or 7-2, his departure -- >> would hold? >> -- will not change the outcome. >> okay. >> but in some 5-4 cases, it
might well. >> absolutely. jeffrey toobin, thank you. we're going to take a quick break. as you look at live pictures of the supreme court there, the flag is at half-staff on the day that we have learned that justice antonin scalia at 79 years old has died after 30 years on the high court. we'll be right back. listen up! i'm here to get the lady of the house back on her feet. and give her the strength and energy to stay healthy. who's with me?! yay! the complete balanced nutrition of great tasting ensure. with 9 grams of protein and 26 vitamins and minerals. ensure. take life in! performance... ...reimagined. style... ...reinvented. sophistication... ...redefined. introducing the all-new lexus rx and rx hybrid.
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piers morgan writes, "didn't agree with many of justice scalia's views but he was a brilliant man, of great principle and integrity. rest in peace. piers morgan, my former colleague, sat down with justice scalia back in july of 2012 for an in-depth interview, a very rare conversation to have with the sitting justice. here's part of it. >> 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? >> yes, give or take a little, rigidly i would not say but it should be based on the text of the constitution reasonably interpreted. >> people criticize you for this say a lot of the constitution was phrased in a deliberately vague way, that they realize when they framed it that in generations to come things may change, we may make a different
impression on a particular piece of text. >> right. >> why are you not prepared to accept that that means you can move with the times, to evolve 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 phenomena that existed, their meaning then is the same as their meaning now. for example, the death penalty, some of my colleagues who are not textual iists believe that it's somehow up to the court to decide whether the death penalty remains constitutional or not. that's 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 the death penalty in and of itself is not considered cruel and unusual punishment. >> more and more americans are coming around to thinking the death penalty is anachronistic thing. one of the reasons being introduction of dna establishing that a lot of people on death row didn't commit their crimes. how do you continue to be so pro-something which is so obviously flawed? >> i'm no pro. i don't insist there be a death
penalty. all i insist upon is that the american people never proscribe the death penalty, never adopted a constitution which said the states can not have the death penalty. if you don't like the death penalty, fine. some states have abolished it. you're quite wrong it's the majority. a small minority of states have abolished. it i'm not no pro death penalty. i 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. >> i was nafascinated when you said torture wasn't punishment.
it clearly can be a punishment. if you're an innocent person in beg guantanamo bay but you're genuinely innocent, you had nothing to do with anything and you get tortured. that becomes a punishment, doesn't it? >> i don't think it becomes a punishment. it becomes torture. and we have laws against torture. the constitution didn't address torture. it addressed punishment. >> what do you think about an innocent person being water boarded? >> i'm not for it, but i don't think the constitution says anything about it. >> isn't that the problem with the originalism? >> it's what does the constitution mean by cruel and unusual punishments. >> isn't it down to the sproeup court to effectively give a more
modern interpretation of the spirit of what that means to adapt it to modern times? >> that's lovely. >> i know you don't think it is. why? >> 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. 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. >> at the moment under your interpretation 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 it has no limitation to it. so what you've now got with these super pacs funded by billionaires effectively trying to buy elections. that cannot have been what the founding fathers intended. thomas jefferson didn't construct something which was going to be abused in that kind of way. i do think it's been abused, don't you? >> thomas jefferson would have said if more speethe more speec. >> it's not speech. i'm talking about money to back up the speech. >> you can't separate speech from the money that facilitates the speech. >> can't you? >> it's utterly impossible.
could you tell newspaper publishers, you can only spend so much money in the publication of your newspaper? would they not say this is abridging my speech? >> yeah, but newspaper publishers aren't buying elections. the election of a president, as you know better than anybody else, is an incredibly important thing. it shouldn't be susceptible to the highest bidder, should it? >> newspapers endorse political candidates all the time. they're almost in the business of doing that. >> yes. >> and are you going to limit the amount of money they can spend on it? surely not. >> do you think perhaps they should be? >> oh, 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 can speak is, i
think, clear in the first amendment. >> is there any limit in your eyes to freedom of speech? >> of course. >> what are the limitations to you? >> i'm a textualist. they had in mind a particular freedom. what freedom of speech? the freedom of speech that was the right of englishmen at that time. >> what is it about insurrection being unacceptable and the speech of burning a flag. isn't that insurrection? >> 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. >> fascinating and a very rare interview there with piers morgan with then sitting justice
antonin scalia. we will be devoting our entire 9:00 p.m. eastern hour to that interview so you can see it in its entirety. stay with us for that. la all six republican candidates will participate. marco rubio, ted cruz and ben carson will appear on wednesday night. donald trump, jeb bush and john kasich will appear on thursday night. both of those town halls hosted by our very own anderson cooper. they will take place at 8:00 p.m. eastern. those will give south carolina voters the opportunity to question directly the candidates, ask them what is on their minds. of course the passing of supreme court justice antonin scalia will be addressed as well. the republican presidential town halls wednesday and thursday this week, 8:00 p.m. eastern, only right here on cnn. quick break. we're back with more of the breaking news next.
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top of the hour. we do begin with breaking news. the leading conservative voice on the united states supreme court is now silent, has passed away. judge antonin scalia dying at the age of 79. he passed away in his sleep of natural causes during a hunting trip at a ranch in texas. he was appointed by president ronald reagan back in 1986. he was the first italian-american to serve on the nation's highest court. he was confirmed unanimously by the senate 98-0. this evening as darkness fell, the flag outside the supreme court was lowered and raised the half staff in honor of justice scalia. the white house this evening saying that president obama was informed and that the president and first lady extend