captioning sponsored by wnet >> brangham: on this edition for sunday february 14th: remembering justice antonin scalia. his life, his influence, and his place in american legal history. and fact checking last night's republican presidential debate. next on pbs newshour weekend. >> pbs newshour weekend is made possible by: cullman.. and louise hirschfeld bernard and irene schwartz. judy and josh weston. the cheryl and philip milstein family. the citi foundation. supporting innovation and enabling urban progress. sue and edgar wachenheim, iii. corporate funding is provided by mutual of america-- designing customized individual

and group retirement products. that's why we are your retirement company. additional support has been provided by: and by the corporation for public broadcasting, and by contributions to your pbs station from viewers like you. thank you. from the tisch wnet studios at lincoln center in new york, william brangham. >> brangham: good evening and thanks for joining us. the body of supreme court justice antonin scalia is expected to be flown home to virginia over the next 48 hours following his sudden death yesterday in texas. to honor scalia, president obama ordered american flags to fly half-staff today at the supreme court in washington and at federal buildings around the nation. like so many other political leaders, president obama has offered his condolences to scalia's family. but he's also promising to fill the vacancy on the high court. in an early sign of a possible bitter confirmation battle ahead, the senate republican majority leader and republicans running for president all say

the scalia vacancy should be filled only by the next president. when scalia died yesterday of natural causes at age 79, he had been on the supreme court for 30 years. from the moment he took his seat on the high court in 1986, scalia was a forceful, eloquent, and sometimes controversial voice for conservative issues. his influence and opinions extended into many areas of american life and politics. scalia was in the five-to-four majority in "bush v. gore," which ended the 2000 presidential election recount and sent george w. bush to the white house. he also voted with the majority in striking down campaign finance laws as a restriction on free speech. scalia shaped landmark majority decisions like the second amendment case that enshrined the right of individuals to own a gun for self defense and cases affirming the sixth amendment right of criminal defendants to confront witnesses against them. scalia was equally caustic and ssents.en writing colorfulosing he was in the minority when the court struck down a virginia

military academy's policy of admitting only men and decided guantanamo prisoners could challenge their detention. he opposed decisions upholding abortion rights, same-sex marriage and president obama's healthcare plan. the cornerstone of scalia's legal philosophy was "originalism", a strict interpretation of the constitution as the framers wrote it in back in the 1780's. >> they never took out these issues: abortion, homosexual conduct. nobody ever thought that they had been included in the rights contained in the bill of rights. which is why abortion, homosexual sodomy were criminal for 200 years. >> brangham: scalia often said the constitution was not a "living document" to be re- interpreted by judges to fit changing times. in a 2012 interview with the newshour's margaret warner, scalia explained his unwavering view of the constitution. >> if it was up to the courts to make it evolve over time, there wouldn't have been a provision

for amendment. it contains a provision of amendment precisely because the framers understood that they may find some provisions in the future are not good and additional provisions are needed. >> brangham: scalia was a devout roman catholic who leaves behind his wife, nine children, and 36 grandchildren. the only child of italian- immigrants, scalia was proud of being the first italian-american supreme court justice, as he told a 2015 pbs documentary: >> when my confirmation was final, i got cartloads of mail from italian-americans just expressing their pride in my appointment. i had no idea that it meant that much. queens, new york, scaliang up graduated first in his class at georgetown university and then with high honors from harvard law school. after working in the justice department and as a federal judge, scalia reached the pinnacle of the legal profession when president ronald reagan nominated him to fill the vacancy left by retiring chief

justice warren burger. the senate confirmed him unanimously 98-to-zero. when he died yesterday, scalia was the longest-serving of the nine supreme court justices. >> brangham: for more on justice scalia's role and his influence on the court, i am joined from washington d.c. by marcia coyle, the chief washington correspondent for "the national law journal," and jamal green, a professor and a vice dean at columbia university law school here in new york. thank you both for being here. marcia, i would like to start with you. just give me your take on scalia's lasting legacy. >> well, william, i think his legacy will be in several areas. first of all, and perhaps most importantly, is his approach to constitutional interpretation as well as interntion of statutes. he was what he said, called himself an originalist in that when he interpreted the

constitution, he would look at how the words of the constitution were understood at the time of the framers. he also was a tect allist meaning he would look at the words in the statute and if the meaning was clear, that was the end for him. i think both approaches really have been taken to heart by a whole generation of young legal scholars. and others as well. practitioners, even politicians. he was a force in conservative legal thought. and then also i think his legacy will be felt in certain areas where he lead the court. for example, two areas, one, he reinvigorated the meaning of the confrontation clause in the 6th amendment. that is the clause that says a criminal defendant has the right to confront his or her accusers. he would accept no sur gats.

the accuser, whoever for example tested the dna blood in a case had to be there on the witness stand. and secondly he also reinvigorated the role of juries in trials, criminal trials. they were the fact finders. they were the ones who had to-- the prosecution had to prove beyond a reasonable doubt any facts that would increase a sentence. >> jamal green, i know you have said this in the past, that scalia's influence was really perhaps greatest outside of the court and less so on the actual rulings themselves. can you explain why that's the case? >> well, he did have a number of majority opinions that he wrote that were significant, as marcia mentioned, so in the area of the second amendment, in the area of the-- clause and so forth. but i think where justice scalia's legacy really lies is in kind of popularizing constitutional theory. so when we talk about originalism, we don't just talk about it among law professors or just among judges.

people, talk show hosts, journalists, politicians are talking the language of constitutional interntion. >> and this was not a popular theory when he first came in. >> no, i think within the academy we all thought it was dead in the midful the 19 '80s but he really played a major role of reinvig rating originalism, both within the academies, so there are lots of scholars now who call themselves originalists including liberal scholars like jack balancekan at yale law school who is most famous for this. and outside of the academy so that the federalist society, politicians talk about originalism as a kind of starting point in constitutional interpretation. >> marcia, i know one of the things that will be etched on his stone is his incredible wit and eru dition and the relish he seemed to take in the intellectual jowsing back and forth. you must have seen him argue many a time. what was it like? >> oh, it was always fun.

sometimes surprising, startling. you'll find that lawyers who regularly argue before the court have said that he really created the model for oral argument. that was very vigorous, fast questioning. and sometimes his comments or questions could be quite bar bed. he could correct those bars to his colleagues as well. i no he that one of his, justice brier, for example, mentioned legislative history and interpreting a law based on its legislative history which justice scalia did not believe in. scalia would send a barb over to brier but he would just roll his eyes like here we go again. and his writing style too. he will be remembered for. he really took great care in how he crafted his opinions, particularly his dissents which he felt very strongly he was writing for the future.

>> jamal green, this, if president obama and it is still a big if, if obama gets to select the next justice, this could be a potentially seismic shift in the court, right? >> maybe as big a shift as has ever been in the court in terms of a single justice being replaced. the senate republicans will do their betion to make sure that doesn't happen but if you were to have president obama pick a swrus tis who was con gene yal to president obama's views of the constitution and views about law, he would have one of the right most justices in the history of the court being replaced by someone on the left. and that would change any number of areas. some of which are dear to justice scalia's heart. you think about the scekd amendment-- second amendment, for example, that would be his ruling in district of columbia versus heller with be in jeopardy were he to be replaced by swub on the left side of the court. rulings like citizens united could potentially be in jeopardy as well. could you have an enormous shift. of course everyone knows what those stakes are. so the republicans will try their best to make sure that

doesn't happen. >> marcia, what about, i understand that some of the cases in the supreme court's current term are as devicive as you can get. there is abortion, con tra ception, unions, immigration. what does his absence now mean for those cases going forward? >> well, it does create some difficult problems for the court. it all depends on what stage some of those cases were in. generally the justices sit down after oral argument rather quickly to take at least a preliminary vote on the outcome. if they-- justice scalia voted on a case and that case has not yet been publicly decided, his vote will be void. if it should leave a 4-4 split on the court and the court does issue a 4-4 decision, then the lower courts ruling will stand. but it will set no precedent for the rest of the nation. it will only be a precedent in

that particular court circuit. the justices also have the option of asking for a reargument in certain cases. that hasn't been done in the past. depending on, for example, there are three cases that i'm going to be watching that have not even yet been argued but also are very high profile, the abortion case is scheduled for march 2nd. another challenge to con tra septemberive health insurance is scheduled for the end of march. and then there's the challenge to president obama's executive action on immigration which probably will be argued in april. all those, those three cases also have the potential to divide 4-4. so there's going to be some deficit for the court. the court may find narrower ways

to decide some of those cases in order to have a majority vote. we're just going to have to wait to see. >> all right, marcia coyle, jamal green, thank you both very much for being here. >> my pleasure, william. >> brangham: read remembrances and reactions to the death of supreme court justice antonin scalia. visit us online at: pbs.org/newshour president obama's term expires in 342 days, and on average, his two supreme court picks, elena kagan and sonia sotomayor required 76 days from nomination to confirmation. so, the president has the time, and he says, the desire to appoint someone new. but already, republican senate majority leader mitch mcconnell has indicated he's not inclined to schedule confirmation hearings or a vote for a new nominee, because, he says the vacancy should be filled by the next president, not the current one. for more on this brewing showdown, i'm joined from washington by the newshour's political director lisa desjardins.

welcome, thanks for being here. we saw already just a few hours after scalia's passing the partisan fight started to break out. from your perspective, how big of a showdown do you think this is going to be? >> this is a massive showdown, it's going to affect congress, it is going to affect the presidential election. it is really a great tremor in american politics. not only because of the court cases that i know your interviewers are familiar with, but because of the divide in congress itself, and i think mitch mcconnell coming down so quickly as you said indicating that he ask not even going to receive a nomination from a sitting president, is really a declaration of political war. and now the white house has to consider how it's going to respond. >> i mean can the republicans if they so choose really block a nominee. if obama puts someone forward, can they really block that nominee for virtually an entire year? >> they absolutely can. under senate procedure, under senate rules it requires first of all now three fifths or 60

votes or nominations of supreme court judges to move forward. but then to even get past that it requires a basic majority vote of the senate to approve any supreme court nominee, since they have a few votes more than a majority, senate republicans have the power to block any nominee they so choose. and what i think has happened in the past here, william, is there have been compromise choices behind the negotiations but in an election year what republicans think they have a very strong shot at winning the presidency and then moreover, william, as potentially losing the senate, they realize that they think their best shot to get another seat on the supreme court is to wait and delay this as much as possible. the president now has a sort of tricky political game to play. does he come up with the nominee that seems completely unfair for republicans to not even consider or does he do some-- does he come up with a nominee who he really wants. he's got a number of options here and it's really not clear how this gets resolved any time soon.

>> have we heard what hillary clinton and bernie sanders have said about this yet? >> no surprise. the two democrats want the democratic president to pick a supreme court justice and want it approved. bernie sanders says the constitution clearly gives the president this power. hillary clinton says the republicans are outrage us in her words, they're pushing back really hard. >> is there a press dense for this for a supreme court fight to break out in the middle of an election year? >> this is what is fas nailting. there is absolutely no modern president going back to the beginning of the 20th century for a supreme court justice dying in an election year, in which a president, a two-term president is retiring. so you have the situation here that is unprecedented. we do have a couple of precedents in terms of vak ansis in election years. for example, we had one with president johnson where he was trying to confirm abe fordice to be the supreme justice of the court that was blocked in richard nixon became president. so the senate has acted to block a nominee but in that case,

interestingly enough, the supreme court did not lose a member because the sitting chief justice stayed, kept the seat. so there really is not a precedent here for a potentially open seat for almost a year in between presidents. that would be something completely new. >> all right. the newshour's political collector liss an desjardins, thank you so so much. >> my pleasure. >> -- who are fighting against syrian president bashar al-assad. the white house says obama conveyed the message in a phone call to putin yesterday. he say ceasefire and delivered more humanitarian aide. neither the russian backed syrian government or the rebel factions have siend the ceasefire agreement being discussed at a multinational security conference in moneyic, germ mannee. attending the conference senator john mccain who chairs the senate armed services committee warned a potential treus could weaken opposition forces without ceiling the russian and syrian

military campaigns. >> not only will this agreement fail but the war in syria will grind on, more innocent people will die, western credibility and influence will diminish, the refugees will continue to flow out, the terrorists will continue to flow in. >> civilian casualties in afghanistan have reached their worst level in seven years. more than 11,000 civilians were killed or wounded in 2015 according to the new annual report from the united nations. the report says 3500 civilians died and 7500 people were wounded last year. as fighting continued between american-backed afghan security forces and the taliban. the total represents a 4% rise from 2014. one quarter of the casual -- casualties were children. the u.n. krielted suicide bombings in the afghan capitol of kabu l and the takeover of ku ndu z as factors for the increase.

>> brangham: the death of justice scalia was the focus of the start of last night's presidential debate among the six republican candidates in south carolina, where the next primary will be held next saturday. the republicans were united in calling on senate leaders to block any supreme court nomination by president obama. >> i think it's up to mitch mcconnell, and everybody else to stop it. it's called delay, delay, delay. >> brangham: ted cruz urt vacancy for conservatives. >> we are one justice away from a supreme court that will strike down every restriction on abortion adopted by the states. we are one justice away from a supreme court that will reverse the heller decision, one of justice scalia's seminal decisions, that upheld the second amendment right to keep and to bear arms. >> brangham: on foreign policy, jeb bush again said the obama administration has failed to contain isis. >> it's a complete, unmitigated disaster. and to allow russia now to have influence in syria makes it harder, but we need to destroy isis and dispose of assad to create a stable syria so that

the four million refugees aren't a breeding ground for islamic jihadists. >> jeb is so wrong. >> brangham: but donald trump disagreed that russian president vladimir putin could not be an ally in that fight. >> that's why we've been in the middle east for 15 years, and we haven't won anything. we've spent $5 trillion in the middle east with thinking like that. >> brangham: bush rebutted trump's attacks on his father and brother's handling of the i am sick and tired of him going after my family. my dad is the greatest man alive in my mind. and while donald trump was building a reality tv show, my brother was building a security apparatus to keep us safe. and i'm proud of what he did. (applause) >> the world trade center came down during your brother's reign, remember that. >> brangham: to help us fact check the debate, i am joined from washington by jon greenberg of "politifact," an independent, non-partisan project overseen by the "tampa bay times."

jon, the death of scalia was announced only a few hours before the candidates took the stage last night but all the republicans running said president obama should not nominate someone this election year. and if he did, the republicans said that the senate should block it. here's how marco rubio put it. >> i do not believe the president should appoint someone. and it's not unprecedented. in fact, it's been over 80 years since a lame duck president has appointed a supreme court justice. >> is rubio right, 80 years since a similar situation has occurred. >> you know, the number 80 years was kicking around really fast in the twitosphere right before the debate and the problem with using that number aside from the fact it is a little bit off no matter how you look at it, the problem is, is that rubio used the term lame duck president. and so when you have got a president who is term-limited, so they are in their second term, all you have to do is go back to ronald reagan.

in 1987 and 88ee, 88ee is an election year. and in 1987, ronald reagan nominates anthony kennedy to be on the supreme court. and he, kennedy is then confirmed in 88ee. so there is reagan. he's clearly on his way out. he doesn't know who his successor is. and he puts somebody on the supreme court. that really is quite recent. in relative terms. and so rubio is mostly false on this one. >> mostly falings. okay. in a foreign policy section of the debate last night new hampshire primary winner donald trump who has never held public office said as he has before, that he opposed the 2003 u.s. invasion of iraq. here is what he said. >> i'm the only one on this stage that said do not go into iraq. do not attack iraq. nobody else on the stage said that and i said it loud and strong. and i was in the private sector. i wasn't a politician.

>> john, is that right? is there any proof that trump said that back in 2003? >> no, he did not say it, so far as we know, going through transkripts and records. that he said it before the war. about three months before we actually invaded, so really there was a big run-up there when there were protests and so forth. he was interviewed on fox news. he was asked, oh, well, what is up with president bush, should he focus more on iraq, focus more on the economy. and the most that trump said well, you know, perhaps maybe we should wait for the u.n. to get on board here. but really, the economy is where he should focus his attention. and it wasn't until a week after the invasion that he said in some brief interview that it was a mess. and it was about a year after the invasion that it really-- he really came down hard. so in terms of how forcefully he put it, trump really did rate false. he was not loud and clear before

the invasion about all the bad things that would happen. at least in terms of any record that we can find. >> all right. last one, john kasich in his second term as ohio's governor touted his economic record, cutting taxes, growing jobs and balancing the budgetment here's what he said. >> what i would tell you is we have gone from an $8 billion hole to a $2 billion surplus. >> so john, how did that check out. did he turn ohio deficit into a surplus. >> aside from the fact that you really can't give john kasich credit for anything. big economic trends play a big role here, still the numbers basically do work out. because there was a projected $8 billion deficit. and then by 2015, the state's rainy day fund said hey, we've got $2 billion to tide us over. that certainly counts as a surplus. so yeah, mr. kasich gets it right. >> all right, jon greenberg from

"politifact," thanks as always so much. >> my pleasure this is pbs newshour weekend sunday. finally tonight the white house said president obama does plan to nominate a replacement for supreme court justice antonin scalia in due time but not before the senate returned from its recess on february 22nd. obama spokesman eric sha ultz added quote at that point we expect the senate to consider that nominee consistent with their responsibilities laid out in the yeufnted states constitution. that is all for this edition of pbs newshour weekend. captioning sponsored by wnet captioned by media access group at wgbh access.wgbh.org

>> pbs newshour weekend is made possible by: lewis b. and louise hirschfeld cullman. bernard and irene schwartz. judy and josh weston. the cheryl and philip milstein family. the citi foundation. supporting innovation and enabling urban progress. sue and edgar wachenheim, iii. corporate funding is provided by mutual of america-- designing customized individual and group retirement products. that's why we are your retirement company. additional support has been provided by: and by the corporation for public broadcasting, and by contributions to your pbs station from viewers like you. thank you.

hello, i'm greg sherwood and i'm very pleased to be here with the founder of the healing mind, a clinical faculty member at ucsf medical school, a pioneer in mind/body medicine and a practicing physician right here in marin county, dr. martin rossman. dr. rossman, thank you so much for helping out with kqed today. >> it's my pleasure, greg. thank you for having me. >> it is such a delight. i'm so looking forward to chatting with you and i hope you will stay with us for the next half hour or so as we explore dr. rossman's methods of overcoming anxiety, worry and stress. he is going to explain how our