thank you for joining us this sunday. enjoy the rest of your weekend. "newsmakers" is next. ♪ [captioning performed by the national captioning institute, which is responsible for its caption content and accuracy. visit ncicap.org] [captions copyright national cable satellite corp. 2016] ♪ >> next, "newsmakers," with leahy, andator pat that a memorial service for justice antonin scalia. after that, fbi director james comey at a house hearing on the accessfforts to encrypted phone data from apple. host: joining us on "newsmakers" is the ranking member of the judiciary committee, senator patrick

leahy, democrat of vermont. thanks very much for being with us. sen. leahy: happy to be here. host: and joining us with the questioning is john bresnahan. he is the congressional bureau chief for "politico." and david herszenhorn, who is "new york times" congressional reporter. thank you for being with us. senator, i want to begin with the crs report that said in 1992, the chair of the judiciary committee, your colleague, joe biden, now vice president, had blocked the nomination of 32 george herbert walker bush federal judicial nominations that year. is that accurate? sen. leahy: no, that is not accurate. in fact, he did 65 or 70 of president bush's nominees, including a large number of district courts and courts of appeals, and it was actually confirming -- letting the senate confirm nominations right up through september of an election year.

no, if there were then that did not go through -- that it was for other reasons. he set, really, a record. now, contrast that to what happened when george w. bush was in the last two years of his presidency. i was chairman. so there could be no question on fairness, i put through 68 of his nominees. the republicans have about only 16 of president obama's in the last two years of his presidency, as opposed to the democrats allowing 68 of republican presidents. use any standard you want, republican presidents were treated more fairly. host: your republican colleagues would disagree. senator biden said they should not go forward with a nomination in 1992. nothing happened in 1992 -- sen. leahy: no. host: now they are calling it the biden rule. sen. leahy: yeah, we actually

-- they raised that with president obama and vice president biden, and they said read the whole speech. it makes it very clear that if we got past the election, then it raised the question, but he was confirming -- and there was no supreme court nomination at that point -- but he was confirming the republican president's nominees right up through september. it is not dissimilar from when the democrats took back over control of the senate at the end of president reagan's term, and in the presidential election year, we brought onto the floor justice anthony kennedy, and every single democrat voted for justice kennedy. host: let me turn over to john bresnahan. mr. bresnahan: senator leahy, i want to talk about some of the very personal nature of the

fight now over the impending supreme court nomination. a number of democrats have gone to the floor, including minority leader harry reid, and personally criticized the chair of the committee, senator grassley, your old friend, colleague, saying he is capitulating to the republican leadership. they're calling him incompetent -- failed leadership. is it surprising -- the personal tone of the attacks on grassley? i want to get your reaction. sen. leahy: well, senator grassley and i have been friends for years. our wives are friends. but i think all of us were very, very surprised that almost immediately after the news came out that justice scalia died, he joined with republican leader mcconnell saying no matter what the constitution says we are not going to have a nomination or a hearing on a supreme court nomination. as you know, you spend enough time on the hill, there are a number of his public and

-- republican colleagues that are amazed at that and uncomfortable with that, especially some of those up for reelection. if you are the chairman of the committee, you're supposed to make decisions based on what you think is best. now, when i was chairman of last two years of president bush's term, sure, i had some democrats say "why are you putting through his nomination?" i said because they are there. it is what the constitution says, and i think it is a fair think to do. they obviously feel different. the heck with the constitution. the heck with fairness. i spoke on the floor thursday with senator grassley there, saying what he is doing is totally unprecedented.

i cannot see why -- turning it back to the constitution, you know, the president -- the constitution says the president shall nominate -- "shall," not maybe we should -- it said he shall nominate, which president obama intends to do. everyone of us puts up our hand. we take an oath of office under god saying we will uphold the constitution. all i'm saying is uphold the constitution. if they want to vote against a well-qualified man or woman for the supreme court, let them do it, but don't have this thing where we say we will not vote yes or no -- we will vote maybe. we do not have the guts to stand up and vote in an election year on who should be on the supreme court. vote yes, or vote no. that is what you are paid to do. that is your job. that is what you are sworn to do. host: david herszenhorn. mr. herszenhorn: can i ask you, is there anything in the constitution -- this an easy yes or no -- is there anything in the constitution that guarantees

a nominee a vote? sen. leahy: no, well the constitution says we shall advise and consent. that is usually interpreted to be you advise, and you can vote no, but there's never been a time -- never been a time -- mr. herszenhorn: but if the advice is wait until after the election, and the consent is not forthcoming -- sen. leahy: no -- well, then let's have the courage to do it, and have the hearings -- at least have the hearings. there has never been a time, never been a time that a supreme court nominee was denied a chance to have a hearing and a vote. we have even had supreme court nominees that were defeated with members of the president's own party voting against them in the committee so they did not have the majority vote. the democrats still said let them go for it, have the vote of the whole senate, because we are not elected to vote maybe. we are elected to vote yes or no. this is a very critical position. i do not think the american people are going to take very kindly to the united states

senate saying we're not going to do our job, we do not have the courage to vote yes or no. mr. herszenhorn: and if i can just follow up on the nastiness question -- one of the things minority leader harry reid says is senator grassley will go down as one of the most obstructionist judiciary committee leaders in history, comparing that to during the civil rights era, those blocking civil rights legislation. do you agree with that -- do you think that would be the worst performance by -- sen. leahy: i will let senator reid and senator grassley speak for themselves. i remember when i was chairman of the judiciary committee, i made a decision of one names -- when names would come up, and wouldn't, and come up for a vote and i make sure they did. that's is not happening now. i cannot imagine if i was chairman, with a republican president, whether it was an election year or not, saying if

you nominate someone for the supreme court, we are even going to have a hearing on it. if i did, certainly in vermont, people would say i was being totally irresponsible. i realize that senator mcconnell, who, after all, said his primary goal is that president obama fails, has said no. that is not what the constitution says. mr. bresnahan: you mentioned senator mcconnell. in the meeting with yourself, president obama, vice president biden, and senator reid, he said to you democrats that you are hypocrites on this, basically, that in this meeting, the only four that had filibustered a supreme court nomination were you four democrats. what is your response? sen. leahy: easy response. he is talking about the alito nomination. there was a pro forma vote.

that was more just show. is when hean: this is saying you filibuster. sen. leahy: we disagree. he was not denied a vote. he was given a vote. mr. bresnahan: president obama did filibuster a nominee. sen. leahy: he did vote against -- the fact is everyone knows as well as mcconnell that we were going to have that vote up or down on alito, and there was not a person in either of the cloak rooms that thought we were not going to have a vote, and he was confirmed by well under 60 votes, but he was confirmed. this is very similar to the talk about robert bork. now, the fact is former judge bork came in the confirmation hearing. he probably had a large majority of votes on his side. he did such a terrible job in that hearing that some of the

press -- i think "the new york times" in one of the editorials referred to him as having a confirmation conversion. ultimately, the senate judiciary committee, the majority of them, voted against him, including some republicans, voted against him. the reagan white house was quietly asking him please withdraw your name. he said he wanted a vote. i, and a lot of other side whether we are for him or not, he wants a vote, he is entitled to one. he went on the floor. he had a vote. eight or more publicans voted against him. not every democrat did, but the majority did, and he was defeated. host: ask let me about the meeting john bresnahan brought up -- what was the tone of the meeting? sen. leahy: we actually started throwing chairs. it was cordial.

mr. herszenhorn: that is why they have couches. you couldn't throw them. sen. leahy: the couches were too big to throw. host: define cordial. sen. leahy: people were not -- the president made a case for why they would follow constitution. senator mcconnell said we do not want you to follow the constitution, but whether you do or don't, we're not going to allow a hearing or a vote. host: some in the white house said the president was pretty frustrated with senator mcconnell. sen. leahy: the president stated his position very clearly, and we went on to other things. i will let him speak to his frustration. i have known president obama for a long time, long before he was in the senate -- i mean, was president. he does not lose his cool or his

temper. it was outrageous -- we were in the senate together, and we used to work out in the gym. he is in a lot better shape than i am, and there would be all kind of outrageous comments, but in public, especially as president, he keeps a pretty calm demeanor. there is no question there was steely determination by president obama that he would follow the constitution and he would set a name, and he would do it soon. mr. herszenhorn: we know he will make a nomination, and when he does, it will be because of senator mcconnell's stance -- it will be unlike any nomination the past. this is a nominee that is looking at not weeks of a fight, open-ended in, and one that is a public

relations battle as well, and there are some of your republican colleagues that suggested that this nominee will have to be prepared for being part of the messaging fight, and you have been through this many times. it is extremely rare that we get opportunity to talk to a nominee and hear from them before they appear before the committee, the hearings. do you envision that could happen -- there would be a nominee that would be engaging in interviews on television in public knocking on senator mcconnell's door? or do you think it will play out in more traditional fashion? sen. leahy: i do not think you will see a nominee on television. we have not seen that before. there will be a lot of senators talking about he or she -- what is happening, but the reflection will be on the senate. if we are elected to do our job, if we say for the first time in history we are not going to have a hearing -- not even have a hearing -- say nothing about a vote on a supreme court justice, i would not want to be one of

the senators who made that decision, because it would be so unprecedented, so opposed to what the constitution requires, and it would be irresponsible. now, i have cast more votes in the senate than any other senator. i say that only two point out this -- have they all than those i redo the same way today -- maybe, maybe not. some been very difficult -- politically very difficult? yes. some, i was told, if i voted a particular way i would lose reelection. i still voted that way because i thought it was my duty to vote and follow the constitution, but to vote maybe -- i am not going to vote yes, i am not going to vote no -- i am going to vote maybe, and then to allow senators to go home and say it is a pretty good nominee, a pretty bad nominee, but i would

like to know more -- come on. i do not think the american people will stand for that -- republicans or democrats. host: another 10 minutes remaining. john bresnahan. mr. bresnahan: can we cover some other issues? sen. leahy: no. [laughter] mr. bresnahan: we could stay on this issue if you want. i'm happy to do so. criminal justice reform -- it is something you have worked on. where does it stand out? what is going to happen next? sen. leahy: we actually raise this at the meeting with the president. all of us realize if we're going to get real criminal justice reform done, we should do it soon, and not right in the middle of the throes of the presidential election season. i mean, i have been working on this for several years. we have come close several times. we know one thing, it is going to be bipartisan. two, no one is going to get everything they want, but as a former prosecutor, i have got to say that we dramatically need criminal justice reform.

i think we should continue to make efforts. senator durbin has worked extremely hard on this. we have had a strong bipartisan coalition -- senator booker, senator lee -- we all understand we are not going to get everything we want, but we have got to do better. i met with the chairman of the house. we have had a number of private meetings in my office. mr. bresnahan: chairman good life -- sen. leahy: i have invited a number of senators, republicans and democrats, sometimes together, in my office, in the capitol, because it is a convenient spot to meet, and i hope we can do it. as i said to the president, and to my republican and democratic colleagues, do it before we have a presidential nomination. i do not want to be tied up in the presidential election -- debate. mr. herszenhorn: speaking of the presidential election, we have seen your home state, the state of vermont become the wellspring

of successful liberal presidential candidates. howard dean, now senator sanders. can you talk about what it is about vermont that makes it the bastion of american liberals in the 21st century, and there are a lot of people that say hillary clinton's running mate will have to be someone that can satisfy bernie sanders' followers. are you the right guy -- sen. leahy: no. mr. herszenhorn: that balances liberalism, with experience, prosecutorial moderation -- sen. leahy: my people should know vermont is the only state in the union that has elected one democrat to the senate, and that is me. since 1962 we have had a democratic governor, republican governor. democratic governor, republican governor. it has gone back and forth. so, we are not -- i was going to say we are cranky. we are independent, and we like it that way. bernie sanders is highly respected in vermont, and he got, i think, his highest

percentage in the country, in vermont, but he also has miles across the country because he has spoken to a lot of things people care about. now, secretary clinton has, too. she probably does not get quite the coverage, but she has spoken to the need of having to have great changes in everything from college tuition, to the ability to have jobs. mr. herszenhorn: any thoughts on who might be that person that can satisfy sanders rotors and join her -- voters and join her on that? sen. leahy: no. i have had some candidates ask my opinion, as well as others, who should be vice president. i can assure you it will not be me. i do not want it. we have had some very good vice presidents. whoever -- if we elect a democratic president, what i would urge, they have somebody as vice president who can work

well with the congress -- the house and the senate. i use two examples. the two vice president i have been there with that have done the best job working with the congress. one was fritz mondale, and the other was george h.w. bush, which may surprise a lot of people, but they had the ability to work with members of congress. host: not vice president biden? sen. leahy: all know, he works -- oh, no, he works with members of congress, too, but members of congress are less politicized. we spent more time in washington, and these two spent a lot of time -- it is nothing against -- joe biden is one of my closest friends and i do not hesitate to call and if i have a question, or vice versa. [laughter] mr. bresnahan: quickly, a now for us -- cuba. the president is going to cuba. for years you pushed to open the relationship with cuba. you have to feel good about this, and talk about the historic nature of obama's visit.

sen. leahy: i am very happy with this. i started years ago -- our dinners we had with fidel castro. we actually been to the baseball game with him that afternoon, and i have pushed and pushed. i helped get elian gonzalez back to his father. i am respected for that in cuba. we met a number of times with raul castro, and i have urged president obama right from the beginning, make this change. i know presidents have always had this memo -- hold tight, we will be rid of those castros. well, president eisenhower was the first one, and every president since. i brought messages back and forth between president obama

and president castro. i believe very strongly this is the right move. is there going to be a democratic society in cuba? no, but will it reflect what is best in us? yes, and i'm looking forward to going down there with president obama when he goes and the end of this month. i will tell you one quick story -- a number of times i have been down there, a number of times with ambassadors from other countries down to cuba. one was the ambassador to chile. when we were down there for the raising of the flight, he came to her and said we respect cuba and the united states, but your relationship has always been like a stone in our share. today, the stone came out of our shoe. i think that says it all. host: quick follow up? sen. leahy: you want to come with us? [laughter] host: let me ask you about the opioid bill because i know that has been a big issue in vermont, new hampshire. we saw in the primary campaign. is it going to move through the senate next week. what is the latest? sen. leahy: i think we could have finished it week if we were to stay in session.

i recommend it on the floor why don't we stay in session friday, saturday, and sunday, and finish it. i think we would have. yes, it will. of course we will finish it. now you actually have to put some money in it. it is one thing to feel good about saying we passed a good piece of legislation, but if you do not put money in it, it does not help. host: how much do you want? sen. leahy: we had a real problem all over our state and other states. our governor was brave in his state of the state a couple of years ago to speak out just on that. it is a real, real problem in this country. mr. bresnahan: can i ask you quickly -- you past senator stennis this week for the sixth longest serving senator. sen. leahy: yes. [indiscernible] i do not know. mr. bresnahan: i think you have kennedy up next. byrd -- you are up for reelection.

if you serve full-term, i think you will be the longest serving. you will be right there. sen. leahy: i never -- i am the only democrat elected in vermont history. when i came there, everybody told me i was a one-term senator. i said i will do my best for that one term. i never thought i would be here this long. mr. bresnahan: how long will he want to serve -- do you want to -- e for sen. leahy: i hated the seniority system when i first came here, and now that i am the dean, the most senior one, i realize i can do a lot for vermont. i kind of like the system. host: one personal question -- will you appear in the next "batman" movie, and what is your role? sen. leahy: if you are a betting person, bet that i will be in the next "batman" movie. host: there is some hesitation. you cannot talk about it? sen. leahy: i do not know -- actually i can, because one of , the trailers shows me as a

senator in the senate hearing, but the reason i do those -- it is going to sound silly -- i give all the money from those movies to the children's library in vermont. i had my first library card there when i was four years old. when you are born blind in one eye as i was, to be able to read, and read, and read, it is one of the greatest pleasures i've ever had, so being in the "batman" movie has bought a lot of books for those kids, even if i do get bounced around, thrown around, and so on. host: but why "batman?" what is the fascination for you? sen. leahy: i started reading him when i was caught -- four. i like the fact he did not have any super paros -- superpowers. he had to use his brain. he had a think think -- think

things through. he had use his brain. when you are blind in one eye, you are not a natural athlete, but i liked using my brain, and that is why i like him. host: senator patrick leahy, thank you very much for being with us. we appreciate it. and we continue our conversation with john bresnahan and david herszenhorn. thent to consider conversation about the election and who the president puts forth. mr. herszenhorn: this is a very theoretical fight until the president makes a nomination. once the president makes a nomination -- it is a different situation. it is unprecedented. the republicans have been clear they will not move on this. some democrats think the nominee should be part of the messaging. you heard from senator leahy, who has been part of many of these, this is a risky business.

he does not think that will happen at all. there is no doubt this will have more messaging around this nomination than any we have seen in the past. host: let's talk about timeline -- when you think the president will make a nomination? what are you hearing from the hill and on the white house --and the white house? mr. bresnahan: the talk is the president is scheduled to go to cuba late in the month. there is a strong sense of monks senate democrats that he will release the name of the nominee before he goes to cuba, that he wants to get it done pretty quickly, and, as david just said, this is a nomination fight unlike any other, and that he wants to, you know, get it engaged, and get it going. if they are going to, you know, blockade actual nominee can -- block an actual nominee, who he or she is, they want to get a

face on it and say this is the person they are blocking. the sense on the hill is that they would do this before he goes to cuba. the white house is not saying he is reviewing nominees. they have a list of nominees. there is an extensive background check. that would only be the opening part of this if there are any hearings. nothing else happens, there would be no further investigation into that person. but, you know, there is going to be an fbi background check. host: and with all of this -- democrats say no, you have done it, back and forth -- are both sides at fault? mr. herszenhorn: there is no question this is gone on for a long time, and both sides are at fault for the partisanship and rancor that is gripped and almost paralyzed washington, but we have to keep in mind this is among the most consequential decisions the president makes, appointing someone to a lifetime

appointment to the supreme court, and even in the context of republican opposition, there is no rushing that. the white house has to carefully, deliver the nature wherever they push that put out there, even if you think the nomination will not succeed, is someone who will be a serious candidate. they are not going to find any surprises that would embarrass the administration because there is something they have overlooked. host: and there have been a couple of trial balloons. mr. bresnahan: there have been. the republican governor of nevada was floated. that was more of a head fake. sandoval actually released a letter saying he was not interested. there was another candidate -- a federal judge from iowa who said there was some talk that she may be on the list. she has been mentioned before. there are a number of names that i wanted to follow-up on david's point -- both parties are guilty of this. you can physically see is they

both keep raising the stakes on this on these fights. they both keep taking months to ratchet up the pressure on the other side, and that has been consistent in the last administration and in this administration. filibustering judges -- blocking all nominees. now we have a separate court nominee -- they are not even going to have a hearing. is, let's say for instance that a democrat won the white house and republicans blocked the democratic nominee in the next term, there would be a very strong push to get rid of a filibuster on supreme court nominees. there would be a very strong push among democrats to do that. i think we are into -- i'm not sure where this will all end up, but we are heading into a place where it is becoming more and more shrill partisahi