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Supreme Court Justice Antonin Scalia Dead at Age 79; Obama Intends to Nominate New Supreme Court Justice. Aired 7-8p ET

Aired February 13, 2016 - 19:00   ET

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


(COMMERCIAL BREAK)

[19:00:34] ANNOUNCER: This is CNN breaking news.

POPPY HARLOW, CNN ANCHOR: All right. Top of the hour, 7:00 p.m. Eastern. I'm Poppy Harlow in New York.

We begin this hour with breaking news, a very sad breaking news to bring you: the death of Antonin Scalia.

He died in his sleep of natural causes during a hunting trip at 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. He was 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.W. Bush issued a statement reading in part, "The appointment of Antonin Scalia to the United States Supreme Court was one of Ronald Reagan's many enduring legacies to the United States. Both his admirers and his detractors agree that Justice Scalia was one of the sharpest constitutional intellects ever to serve on the bench. I considered him a personal hero, and Barbara and I were honored to call him a friend. Our heart breaks 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, Supreme Court Chief Justice 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. CNN Chief Washington correspondent Joe Johns first with a look back at the justice's life and his legacy.

(BEGIN VIDEOTAPE)

ANTONIN SCALIA, SUPREME COURT ASSOCIATE JUSTICE: I, Antonin Scalia, do solemnly swear --

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

EDWARD LAZARUS, AUTHOR, "CLOSED CHAMBERS": Justice Scalia has an irrepressibly pugnacious personality, and in his early days of court, that came out where he was the most aggressive questioner and behind the scenes where the memos that he wrote, what were called Nino-grams inside the court had a real galvanized effect on the debate among the justices.

JOHNS: 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.

JOAN BISKUPIC, SCALIA BIOGRAPHER: Feisty. He can be belligerent. He can be -- he's obviously 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.

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

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

LAZARUS: He's very good, especially with audiences that are not predisposed to liking him. He's disarming and kind of charming in his own way.

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

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

JOHNS: He was a top student at public and private schools in the city. Here he's leading his high school band in the Fifth Avenue parade in 1950.

Scalia's interest in law began in college and so, too, in interest in Maureen McCarthy, with whom he later married and had nine children.

His exuberant embrace of conservatism attracted the attention of the Republicans and the President Reagan ultimately named the 50-year-old federal judge to the high court in 1986.

[19:05:03] There, he developed a reputation as a reliable conservative. And his own style helped liven the face of the high court.

LAZARUS: Some of the other justices, including the justices who are 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 -- I'm going to sort of step up and ask some questions, too.

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

BISKUPIC: At one extreme, he would alienate some of his colleagues if he was trying to get anybody to sign 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 still there in many ways.

JOHNS: And those dissents helped him hone a creative, some said often, cruel streak in his writings, becoming a master stylist. He once referred to the junior varsity congress, he quoted Cole Porter, Shakespeare and Sesame Street songs. In a closely divided abortion case, he slammed Justice Sandra Day O'Connor's view as perverse and irrational.

Off the bench came admiration from young conservatives who wrote books and created websites in tribute but controversy, too. A hunting trip with Vice President Cheney at the same time the court was considering a lawsuit against the number two over access to privileged documents -- a Sicilian gesture, some interpreted as obscene and captured by a Boston newspaper, he called it dismissive in nature.

And this on the war on terror.

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

To thy own self be true --

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

BISKUPIC: He should be remembered in many ways certainly as this larger than life figure, larger than bench figure, someone who embraced both the law and a life beyond the court.

UNIDENTIFIED FEMALE: 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.

JOHNS: A judge who had a well calculated conservative view of the law and its limits on society.

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

(END VIDEOTAPE)

HARLOW: And he enjoyed it the entire way, serving the nation's highest court for the past 30 years. Antonin Scalia has died at the age of 79.

Joining me now, Paul Cappuccio, 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.

PAUL CAPPUCCIO, CLERKED FOR JUSTICE SCALIA (via telephone): 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.

HARLOW: Can you tell us a little bit about him as a man, as a friend?

CAPPUCCIO: Yes. You know, he was a pure joy to work for. He cared intensely about getting the answer right. He cared nothing about who was the plaintiff, who was the defendant. Politics didn't matter to him. He cared so much about getting the answer right under either the Constitution or if he was interpreting a statute.

You know, I worked with him when I was 27 years old. He had locked himself in the office and, you know, 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 would -- he often said to me that if he could change one thing, when he's deciding a case, he often 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.

JEFF TOOBIN, CNN SENIOR LEGAL ANALYST: Paul, let me ask you a question. It's Jeff Toobin here.

CAPPUCCIO: Hi, Jeff.

TOOBIN: So I've been talking about an originalism and trying to explain why that's such a significant idea for the Supreme Court. Talk about, what's originalism and why is it so associated with Justice Scalia?

[19:10:04] CAPPUCCIO: Well, you know, the originalism is also textualism, which is quite related and I think Justice Scalia believed in both.

Justice Scalia -- 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 and how originalist he is of 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 the word that's often used, a stricter interpretation of the Constitution because it's a grave and serious thing to say that people cannot do decide for themselves.

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.

HARLOW: No problem at all. Thank you for being with us and shedding this light. I mean, it's 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 sort of ideological contrast?

CAPPUCCIO: Sure. Look, he was -- Justice Scalia was not only a very warm and a very 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 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 attracted 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 Italian dad. It was a no holds barred, a lot of fun, sometimes some saucy language. And all that mattered was that we got to the right answer.

TOOBIN: 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 fairs. The lawyers talked for a long time.

When Justice Scalia arrived, oral argument changed and it has remained changed, because you've argued before the court, you've watched the court. Talk about how he influenced how the court interacts with the lawyers.

CAPPUCCIO: 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 felt that oral argument was a way to communicate with the other justices, to test the arguments of the advocates 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, but you could read both briefs and they both would sound quite good.

[19:15:04] 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 as he's making as he sat there, but it was also I think a way for him to -- I don't know if communicate is the right word but to 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.

TOOBIN: Oh, yes.

CAPPUCCIO: I think it made it much better. (INAUDIBLE) picked on it.

TOOBIN: 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.

Now, of course, it's only eight justices who are asking questions because Clarence Thomas doesn't speak, just as a parenthetical, February 22nd, just a couple weeks from now, will mark ten times from now since Justice Thomas asked a question.

HARLOW: Wow.

TOOBIN: But the other eight have followed Justice Scalia's example and they are in the face of the lawyers all the time and that --

HARLOW: And those other questions we publicly hear about, even though we don't have cameras in the court, we get sort of drippings of it.

TOOBIN: 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?

CAPPUCCIO: Yes, I would agree. I mean, pretty much everyone has followed suit. Justice Ginsburg has become equally adept at it.

HARLOW: Paul, before I let you go and thank you -- go ahead. CAPPUCCIO: No. Go ahead.

HARLOW: 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.

CAPPUCCIO: Well, you know, first of all, I have to thank him every day 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 me 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. I am inimitable and he certainly was. We gave him the raw draft and saying and then he turned it into inimitable prose of his. But, you know, 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. Justice Kagan came to the court, I saw Justice Scalia three months later and said, you know, he says -- 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.

(LAUGHTER)

TOOBIN: He did. I mean, that was the thing. He did get Elena Kagan interested in hunting, which is sort of hard to believe.

HARLOW: Great image in our mind.

Thank you, Paul. Thank you so much. Obviously, he was personal loss for you. What an experience, what a remarkable defining part of your life to be able to clerk with him and remain close with him.

CAPPUCCIO: 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.

HARLOW: No question. Paul Cappuccio, general counsel for Time Warner, a very close friend of Scalia, remained a very close of the justice. Thank you so much, Paul. I appreciate it. >

I do 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, this is 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. [19:20:06] 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 may be?

TOOBIN: I think there is one candidate who is a very likely nominee to the Supreme Court. Young judge, a 48-year-old judge on the D.C. circuit, the second most important court in the country.

His name is Sri Srinivasan, who is an Indian-American, a remarkable personal story. Grew up in Kansas, big high school basketball star, went to Stanford, 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.

HARLOW: Just 2 1/2 years ago.

TOOBIN: 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?

HARLOW: Yes.

TOOBIN: So that is -- you know, that's the political context.

HARLOW: Especially going into all of these Senate races.

TOOBIN: Right. Mitch McConnell, who is 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.

HARLOW: And stay with me because I want to bring in our chief political correspondent Dana Bash.

I mean, Dana, 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.

HARLOW: 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 nominees during a presidential year and goes on to criticize President Obama for, from his perspective, trying to circumvent Congress, to push his own agenda through the courts and it's important to wait to elect a new president to select a new Supreme Court justice.

So, there you have that, and you have just as much intensity in the statements from the Democrats, Harry Reid and Chuck Grassley's Democratic counterpart on the important judiciary committee, Patrick Leahy, 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. I mean, this is obviously a sudden death. It's a different kind of situation.

HARLOW: Dana, to you, I mean, it is our Jake Tapper who 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?

BASH: 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. So, 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.

So, no. I'm not surprised at all that President Obama is doing this.

[19:25:01] And one thing I want to point out, really quickly, is, you know, Jeff was saying, this is just another reminder who important who runs the Senate is. It's 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, because 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.

HARLOW: No question. David Axelrod, former adviser to President Obama, CNN senior political commentator, calling this a seismic event, as you know, Dana, for the campaign.

Dana, please stay with me. Jeffrey Toobin will be with me. We're going to continue on this I can breaking news.

Before I do get a quick break in, I want to show you a very 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.

(COMMERCIAL BREAK)

HARLOW: All right. Bottom of the hour, if you were just joining us, we want to update you on the major breaking news this evening -- the death of U.S. Supreme Court Justice Antonin Scalia.

[19:30:03] 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 he did not show up for breakfast this morning. He was found unresponsive in his bedroom. Justice Scalia 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. The White House says President Obama was informed of Scalia's passing and that president and first lady extend their deepest condolences to the family.

We do expect to hear more tonight from President Obama. That according to the White House. We'll bring you that as soon as we have it.

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 own agenda. It makes sense that we defer to the American people who will elect a new president to select the next Supreme Court Justice."

I want to talk all of this with Republican National Committee Chairman Reince Priebus who joins me now. Thank you very much for being with me, sir.

REINCE PRIEBUS, REPUBLICAN NATIONAL COMMITTEE CHAIRMAN: Thank you very much.

HARLOW: 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?

PRIEBUS: 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 in their family. I think that's what is most important. The politics, I think there will be plenty of time for the politics but for tonight it's best that we remember the family and obviously an incredible American in Justice Scalia.

HARLOW: You know, it's interesting because we have already heard some of the candidates for president weighing in. Ted Cruz, for example, tweeting that we should wait for the next president to choose a justice. Mitch McConnell saying the same thing. Harry Reid on the opposite side, saying that the president should make a nomination but at this point, you don't want to jump in?

PRIEBUS: 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. But 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.

HARLOW: All right. Reince, I want to bring in my colleagues, Dana Bash, our chief political correspondent, also Jeffrey Toobin, our CNN senior legal analyst and expert on the Supreme Court. I want them to be able to ask you some questions as well. Dana, first.

DANA BASH, CNN CHIEF POLITICAL CORRESPONDENT: Mr. Chairman, I know that you want to take a pause and remember the man. This is an incredibly sad day for his family and for the country for his service and we have been talking about that. But because you, your job is political, almost exclusively as chairman of the Republican Committee, what do you make of what Poppy was just talking about?

I mean, 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, OK, 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?

PRIEBUS: 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 - arm chair, quarterbacking the future 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, I think 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 like 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.

HARLOW: 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 just how things have changed.

[19:35:05]

PRIEBUS: 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 presidential elections that have been very charged and I think that's where we are right now and we have to obviously, 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.

TOOBIN: Reince, can I ask you a question about sort of 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?

PRIEBUS: 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.

HARLOW: 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.

PRIEBUS: You bet. Thank you, everybody.

HARLOW: All right. We'll be watching the debate tonight. Before I do get to our Pamela Brown. Jeffrey Toobin, he kept saying that tonight should be about the man. Understandably so, it is in many ways about remembering this man. Can you just talk to me about Justice Scalia professionally but also what we know about him personally. Because, oftentimes, the public doesn't know a lot about them outside of the bench.

TOOBIN: 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 for half an hour and there would be a question here and there. But 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 funny, often a kind of iconoclastic, 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.

HARLOW: Right.

TOOBIN: And a lot of them have personalities that reflect that kind of -

HARLOW: But not him.

TOOBIN: Not him.

HARLOW: He had this fascinating very intriguing friendship with Justice Ruth Bader Ginsburg who could not disagree with him more on his decisions.

TOOBIN: That's right. 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 shared. He was a great connoisseur of Italian food. Ruth Ginsburg's husband, Marty Ginsburg, her late husband, was a famous gourmet chef and every New Year's eve, Marty would make an elaborate feast that the Ginsburgs and the Scalias would ate together.

He is someone who had these deep, rich friendships. He liked to argue with his friends as well as his adversaries and he was 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.

HARLOW: The first Italian-American nominated to the court. Jeffrey Toobin, stay with me. Thank you so much.

I do want to bring in CNN Justice correspondent Pamela Brown.

Pamela, you had this extraordinary opportunity to be in the high court to see this man in action?

[19:40:00]

PAMELA BROWN, CNN JUSTICE CORRESPONDENT (ON THE PHONE): 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.

As Jeffrey Toobin said earlier, before Justice Scalia, oral arguments were a little bit sleepy and then Justice Scalia started turned it into a form of entertainment, he often used colorful language. He would just right off the bat start asking questions and just as reporter being inside the Supreme Court covering these cases, particularly the high-profile ones like Obamacare last year and others, it really 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 I really think it sums up the impact that Justice Scalia is leaving behind. As you know, Justice Kagan is on the other end of the spectrum when it comes to ideology but she said Justice Scalia's view on textualism and orignalism, his views on the role of judges in our society, on the practice of judging has really 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.

HARLOW: And what does it mean, Pamela, sort of practically speaking to now have a bench of eight in an election year and we're about one month out from this court hearing, one of the most pivotal abortion cases in years?

BROWN: Absolutely. Poppy, you cannot express how significant this is in words. I mean it raises the stake even more for these huge cases, this term, 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 frankly, it could be very difficult for conservatives this term because of the fact that you have Justice Kennedy who is the swing vote, and the fact that his vacancy will likely not be filled until the next president takes over.

There will likely be eight judges and if there's a 4-4 tie, then 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 decided, say 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?

HARLOW: Pamela Brown, thank you so much.

What as experience it must have been for you to be in the court to see it all in action. Thank you so much, Pamela Brown, our justice correspondent.

Before I get to a break, just very quickly, Jeffrey Toobin, it's very important for the public to understand if you can walk us through - what happens now to the cases now that are open before the court that haven't been decided but have been heard?

TOOBIN: 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.

HARLOW: Sure.

TOOBIN: Now, if the decision was 9-0 or 7-2, his departure -

HARLOW: Will hold?

TOOBIN: - will not change the outcome.

HARLOW: OK.

TOOBIN: But in some 5-4 cases, it might well.

HARLOW: Absolutely. Jeffrey Toobin, stay with me. We got our entire team on top of this breaking news. We're going to take a quick break. As you look at live pictures of the Supreme Court there, the flag 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.

(COMMERCIAL BREAK)

[19:48:35]

HARLOW: All right. Breaking news, we're continuing to follow here on CNN the passing of Justice Antonin Scalia. It silences the voice of the Supreme Court's most ardent conservative. One person tweeting his condolences. Former CNN host Piers Morgan who 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 a sitting justice. The discussion ranged from the death penalty to the Citizen's United case. Here's part of it.

(BEGIN VIDEOTAPE)

PIERS MORGAN, CNN HOST: You are a man that believes fundamentally that the law in America should be based rigidly on the letter of the Constitution. That's what you believe, isn't it? Fundamentally

JUSTICE ANTONIN SCALIA, SUPREME COURT JUSTICE: Yes, give or take a little, rigidly I would not say but it should be based on the text of the Constitution reasonably interpreted.

MORGAN: People 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.

SCALIA: Right.

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

[19:50:03]

SCALIA: But I do accept that with respect to those vague terms in the Constitution such as equal protection of the laws, due process of law, cruel and unusual punishments. I fully accept that those things have to apply to new phenomena that didn't exist at the time. What I insist upon, however, is that as to the 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 textualists or who are not originalists, at least, 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.

MORGAN: More and more Americans are coming around to thinking the death penalty is an anachronistic thing, 50 years ago, even when you began - you had the longest serving Supreme Court justice - when you began, a majority of American, a big majority would have been in favour of the death penalty - that is beginning to change and you're seeing - one of the better phrase, going out of fashion. One of the reasons being introduction of DNA, establishing a large number of people on death row didn't commit their crimes. How do you acquaint that as a man of fairness and justice, how do you continue to be so pro-something which is so obviously flawed?

SCALIA: I'm not pro. I don't insist that 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. It's a small minority of states that have abolished it.

The majority still permit it. But I'm not pro-death penalty. I'm just anti - the notion that it's not a matter for Democratic choice that it has been taken away from the democratic choice of the people by a provision of the constitution. That simply not true.

The American people never ratified a provision which they understood abolish the death penalty when the cruel and unusual punishments clause was adopted, the death penalty was the only penalty for a felony.

MORGAN: I was fascinated by your interview, I think in "60 Minutes" when you said that in your eyes, torture wasn't a cruel and unusual punishment, I think is what you said. Torture wasn't punishment. Hang on a second. It clearly can be a punishment. God, if you're an innocent person say in Guantanamo Bay and you've expressed views about this too, say you've been picked off a battlefield and taken to Guantanamo but you're genuinely innocent, you had nothing to do with anything and you get tortured. That becomes a punishment, doesn't it?

SCALIA: I don't think it becomes a punishment. It becomes torture. And we have laws against torture. But I don't think the Constitution addressed torture. It addressed punishment which means punishment for crimes.

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

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

MORGAN: Isn't that the problem though with the originalism?

SCALIA: No, it's not the problem. It's a problem what does the Constitution mean by cruel and unusual punishments.

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

SCALIA: That's lovely.

MORGAN: I know you don't think it is. Why don't you think it is?

SCALIA: 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.

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

[19:55:05]

The problem, I -- as I see it and many critics see it, is that that -- it has no limitation to it. So what you've now got are these super PACS funded by billionaires effectively trying to buy elections. And that cannot be what the founding fathers intended.

Thomas Jefferson didn't sit there constructing something which was going to be abused in that kind of way.

And I do think it's been abused, don't you?

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

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

SCALIA: The first...

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

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

MORGAN: Can't you?

SCALIA: It's -- it's -- it's utterly impossible.

Could you tell newspaper publishers you can only spend so much money in the -- in the publication of your newspaper? Would...

MORGAN: (INAUDIBLE).

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

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

SCALIA: I--

MORGAN: -- is an incredibly important thing.

SCALIA: Newspapers...

MORGAN: And it shouldn't be susceptible to the highest bidder, should it? SCALIA: Newspapers endorse political candidates all the time. What do you mean -- they're...

(LAUGHTER)

SCALIA: They're almost in the business of doing that.

MORGAN: Yes.

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

MORGAN: Do you think the...

SCALIA: Surely not.

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

SCALIA: Oh, I certainly think not. I think, as I think the framers thought, that the more speech, the better. Now, you -- you are entitled to know where the speech is coming from, you know, information as to who contributed what. That's something else.

But whether they -- whether they can speak is, I think, clear in the First Amendment.

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

SCALIA: Oh, of course.

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

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

(CROSSTALK)

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

SCALIA: No. No.

MORGAN: Isn't it?

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

(END VIDEOTAPE)

HARLOW: 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.

Later this week, CNN will host two Republican presidential town hall events in South Carolina, ahead of the primary there. 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.

(COMMERCIAL BREAK)

ANNOUNCER: Breaking News.

HARLOW: Top of the hour. 8:00 p.m. Eastern. We do begin with breaking news. Very sad news to bring you this evening, the leading conservative voice on the United States Supreme Court is now silent, has passed away. Justice 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.