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Smerconish

GOP Smackdown; Rubio's Rumble with Trump; Interview with Senator Orrin Hatch of Utah; Judge: Hillary's Aides Must Answer Questions. Aired 9-10a ET

Aired February 27, 2016 - 09:00   ET

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

[09:00:02] VICTOR BLACKWELL, CNN ANCHOR: Hey, Christi. We'll continue our live special coverage of the democratic primary here in South Carolina coming up at 10:00 Eastern. The show will continue. We've got special guests coming up for you including Killer Mike who is with the Sanders campaign. "SMERCONISH" starts now.

(MUSIC PLAYING)

MICHAEL SMERCONISH, CNN HOST: I'm Michael Smerconish.

How can I possibly sum up where we are with the 2016 presidentialrace. Some think that Senator Lindsey Graham might have nailed it.

(BEGIN VIDEO CLIP)

SEN. LINDSEY GRAHAM (R), SOUTH CAROLINA: My party is gone [bleep] bat crazy. What.

(END VIDEO CLIP)

SMERCONISH: Well, that's his description. Here's mine. What went on in Houston Thursday night gave me a flashback. Early 1970s, Saturday mornings, our family wreck room, my brother and me on bean bag chairs watching prowrestling. Bruno Sanmartino, Haystacks Calhoun, Chief Jay Strongbow and George "the Animal" Steel, good guys versus bad guys, mud slinging and foreign objects. Well, guess who learned on those mats, too?

(BEGIN VIDEO CLIP)

DONALD TRUMP (R), PRESIDNETIAL CANDIDATE: Look at those divas. And you say THAT Trump is a profit. I think that's spelled p-r-o-f-i-t.

Hey Vince!

(END VIDEO CLIP)

SMERCONISH: Yes, the classy Trumpinator and so it was in Houston, Rubio and Cruz tag teamed the villainous Trump but their victory was short lived because the Trumpinator pulled somebody else into the ring thankfully not wearing tights. Former arch rival Chris Christie was suddenly his side kick but can anything stop Trump's assent before this episode of Wrestlemania wraps up on Tuesday. Hey, I'm a genius. Donald Trump said it so it must be true. Now, of

course, as usual, he didn't say my name even when giving me just sarcastic credit. His observation came the night of his impressive victory in South Carolina after I noted on CNN that if you add up the votes garnered by Rubio, Bush and Kasich, they beat Trump.

(BEGIN VIDEOTAPE)

SMERCONISH: I'm also adding the vote total of Marco Rubio, John Kasich and also Jeb Bush and that's a total that exceeds Donald Trump and wouldn't that be an interesting dynamic if it then becomes one between Cruz and Trump?

(END VIDEOTAPE)

SMERCONISH: I already tweeted this and others have since made similar observations but minutes after I said it on TV, Trump took the stage and mentioned my theory in his victory speech.

(BEGIN VIDEO CLIP)

TRUMP: A number of the pundits said "well, if a couple of the other candidates drop out, if you add their scores together, it's going to equal Trump. These geniuses. They're geniuses. They don't understand that as people drop out I'm going to get a lot of those votes, also. You don't just add them together. So I think we're going to do very, very well.

(END VIDEO CLIP)

SMERCONISH: But the numbers don't lie and the latest Quinnipiac University poll which was released February 17 confirmed that while Trump has built a 2:1 lead among all Republicans nationwide, he's also leading in the category of candidate you would definitely not support. A full 28 percent of Republicans say they would never support Trump's nomination.

And looking toward the general election, 60 percent of all Americans view him unfavorably. It's just one of the many things that I want to talk to John King about, the chief political correspondent, the host of CNN's "Inside Politics," this Sunday morning, airs for a full hour beginning at 8:00 a.m. Eastern.

Hey, John, react to my theory that there is enough establishment vote out there to topple Trump if somebody would only get out.

JOHN KING, CNN CHIEF POLITICAL CORRESPONDENT: Somebody or somebodies, Michael. You might need two people to get out. But let's look at the state of play and we'll explore your theory. Here is where we are right now, South Carolina, democrats are voting today. So by the time, they finish tonight, we'll be through the first four contests which I call the momentum contests. Early on you try to get momentum.

Then Tuesday night we begin the math phase with the first super Tuesday and if you look at this map, you're going to have 11 states choosing delegates on the Republican side. Donald Trump has a narrow lead to begin with. If your theory is to be proven, they need to prove it soon. We know nobody is dropping out before Tuesday. So that's why you have advantage Trump.

Let's switch walls and come over here and take a look. Trump heads into super Tuesday with 82 delegates, a lead over Cruz and Rubio and Kasich and Michael, this is what people think is going to happen on super Tuesday. Trump could run the board, that would be 11 states. That we're proportioning the delegates with wins being in the 35 percent range. That would get him out here.

[09:05:00]

Let's just for the sake of argument say that Ted Cruz does win the state of Texas and Donald Trump comes in second, Rubio comes in third and Kasich comes in fourth there. That's the only state of the Super Tuesday states where we know Trump is behind in the polls. So if you're going to get Donald Trump, guess what? It's probably not going to start that effort until Wednesday morning, after super Tuesday and look at the lead.

Donald Trump will be somewhere in the ballpark of 330 to 350 delegates, maybe even a little more if he has blowouts in some of these states on Wednesday morning and if Ted Cruz wins Texas, well, that complicates your theory, Michael, because if Ted Cruz wins Texas he's not going to get out so then we have to take this further.

Let me walk over this way a little bit and we'll show you the rest of March as the rest of March plays out, then you have March 5th, 6th, 8th and importantly, March 15th. Why is March 15th so important? If it takes that long to test your theory, that's when Ohio and Florida vote. The home states of Governor Kasich and Senator Rubio.

At the moment they say they aren't going anywhere. If Trump keeps winning, Michael, you need 1207 to win the Republican nomination. If he swept super Tuesday and then swept the rest of March, he would be way out here, way out here in the 800. So let's just say for the sake of argument, he's trailing in the polls now but hypothetically, let's give Rubio, Trump, Cruz and Kasich Florida and let's give Kasich his home state of Ohio, assuming he waits that long and Trump second and Cruz is third and Rubio is fourth, I'm just making that one up. The third and fourth doesn't really matter so much in the delegates.

Even if you take the two home states away, Trump is still well ahead and the problem with your theory, is if they both win, they will both stay. The question is will one of them lose at home and then will one of them get out? But even if they wait that long, Michael, that's a pretty steep hill. Yes, mathematically you can catch up to Donald Trump but if you let him get out this far ahead, boy, that's a hard challenge.

SMERCONISH: Time is of the essence and what I'm hearing from John King is that Trump might run the table this coming Tuesday. There's an opportunity for Rubio or for Kasich to make up the lost ground on the 15th, the first - pardon me, the next Super Tuesday but boy, if it doesn't happen soon it's not going to happen.

And it will be inevitable.

KING: That you cannot do this. Right now their theory is get my home state.

SMERCONISH: Right.

KING: Ted Cruz needs to get Texas, Rubio needs to get Florida, Kasich needs to get Ohio. But that's not enough. If they do that, that's just simply not enough. They need to change the fundamentals of the race. So let's say, for example, if its Kasich's - his dream strategy is Kasich wins Michigan. So let's just say for the sake of argument that happens and we'll just fill in three and four. They don't matter as much when you get to this point of the calendar. OK.

I'm sorry, though, John Kasich even if he wins Ohio and Michigan is still in fourth place. And so the question is can you fundamentally change the race so that Donald Trump suddenly starts losing a lot of states. The only way to do that is to bend the ark of the fundamental dynamic of this race.

Right now Trump is winning, Trump is ahead, Trump has the resources and Trump has learned how to manage the media cycle and Chris Christie, the morning after the tough debate and so you have to change the fundamental ark of the race picking up one state or two states at a time is not going to do it, Michael.

SMERCONISH: John King, tomorrow morning 8:00 Eastern for a full hour of "Inside Politics," just in time for Tuesday. Thank you, John.

KING: Thank you, Michael.

SMERCONISH: Joining me now is Governor John Kasich.

Governor, thank you for being here. Let me ask you a question that's very much on people's minds. If you believed that the only way to deny Donald Trump the nomination would be by personally getting out of the race, would you be prepared to do so on that basis alone?

GOV. JOHN KASICH (R-OH), PRESIDENTIAL CANDIDATE (ON THE PHONE): I would never believe that. I would never believe that I'm not going to be the nominee and there's all kinds of reasons for me to believe it because you know what I'm the last governor standing. There were 16 people in the race. It's down to four or five of us. And I believe we're doing well. We're gaining momentum both from a political and a financial perspective, and look, if I get head-to-head with Donald Trump in Ohio, I beat him by 18 points. So I believe that I'm going to be the nominee.

SMERCONISH: I saw a tweet that you sent out within the last 24 hours that said you expect Donald Trump is going to win everywhere on Tuesday. If that's the case, then what is the Kasich path to victory?

KASICH: Well, look, we think we're going to get delegates here and this thing will head north and I just explained to you that I'm going to beat Donald Trump in Ohio. Once that happens, everything changes. Everything changes in this race. And we have many, many more races to go. And the calendar begins to work for me.

SMERCONISH: I don't doubt that you beat him in Ohio and perhaps elsewhere if you could get him alone but you're not going to get Trump to yourself by March 15 because Rubio is not going away.

KASICH: Yes, but we'll beat him in Ohio when we get the March 15th and if it isn't head-to-head. We'll win anyway. We're going to do well in Ohio. Don't worry about it. We're going to do fine.

SMERCONISH: Governor, I thought you were the adult on the stage in Houston Thursday night, and I want to ask you this, were you embarrassed by what was going on in the center of the stage between Rubio, Trump and Cruz?

[09:10:08]

(BEGIN VIDEO CLIP)

SEN. TED CRUZ (R-TX), PRESIDENTIAL CANDIDATE: Donald claims to care about -

TRUMP: You know --

CRUZ: Donald - he said -

I understand rules are very hard for you. They're very confusing.

TRUMP: I have his book --

(CROSSTALK)

TRUMP: Thank you, thank you for the book -

(END VIDEO CLIP)

SMERCONISH: Because I looked into the audience and I saw Bush 41 for whom I once worked and was proud to serve and I looked at him and I looked at what was going on in the center of the stage and I said "my god has the party fallen since his era." What were you thinking?

KASICH: Well, I mean, at one point everything was unintelligible, somebody told me that when they were doing the closed caption, they flashed up on the closed caption unintelligible. So that is never a good thing when that is happening.

SMERCONISH: I was thinking of the fact that after the last cycle, Reince Priebus wrote that autopsy on the GOP and they reduced the number of debates because they thought the GOP brand was harmed. I'm watching what happened in Houston Thursday and I'm saying if John Kasich pulls this off and becomes the nominee, does some of that bad behavior, not on your part but of your opponents come back to harm the brand of the party under whose label you're running?

KASICH: No, I don't think so. I think that, you know, once you pick a nominee, the nominee gets to call the tune, gets to set the agenda, gets to set the mood, gets to set the tone, and look, you know, it's sort of like they were asking a question about well, what about Hispanic voters? I'm not changed my position on immigration. So if I'm the nominee, it's my position on immigration that represents the party. Part of what I would have the ability to do for those who are listening is to begin to redefine to some respects what it means to be a Republican, what it means to be a conservative.

SMERCONISH: Did you make any effort to get Chris Christie's endorsement?

KASICH: Yes, I talked to Chris a couple times, and, you know, I think, you know, look, Chris went to New Hampshire. He wanted to win. And I got in and he didn't win and I think that's always kind of a tough situation but Chris is a good friend of mine. He will remain a friend of mine. And, you know, I was a little surprised by it but life will go on. It's not going to really have a major impact on our campaign but of course I wanted to have his support but just didn't get it.

SMERCONISH: Governor Kasich, good luck on Tuesday.

KASICH: Michael, it's always a pleasure and when I was in New Hampshire, I told you how we were going to do.

SMERCONISH: And you did.

KASICH: Keep your eyes open. Thank you.

SMERCONISH: Thanks, governor.

When Donald Trump first entered the race, he seemed a punch line to many but now that he's locking up the nomination, things are getting serious and making many people nervous. The former Mexican president just compared him to Hitler.

(BEGIN VIDEO CLIP)

VICENTE FOX, FORMER MEXICAN PRESIDENT: He said he's going to bring back America to what it was, that's crazy. Never, never before America, United States was so big, so strong, so powerful, so successful. Today he's going to take that nation back to the old days of politics, war, and everything. It's - he remembers me of Hitler. That's the way he started speaking.

(END VIDEO CLIP)

SMERCONISH: That was also how a recent essay in the "Washington Post" began "I have spent my life perplexed about exactly how Hitler could come in power in Germany, watching Donald Trump's rise I now understand." The piece titled "The Moment of Truth We Must Stop Trump" by Dr. Danielle Allen go so far as to plead with Democrats to re-register as Republicans and vote for Marco Rubio.

Dr. Allen joins me now. She's a political theorist at Harvard and contributing columnist at "The Post" and I should add a democrat and supporter of Secretary Hillary Clinton. Dr. Allen, normally I abhor Hitler references and Holocaust references

because I think they diminish what really went on in that era. Defend your use of those terms in "The Post."

DR. DANIELLE ALLEN, POLITICAL THEORIST, HARVARD UNIVERSITY: Let's be clear. I was comparing the American people now to the German people in the 1930s. Both cases this is the people characterized by incredible division and economic insecurity. That's the critical point. We're vulnerable to being taken advantage of by a demagogue.

I wasn't actually making a straight comparison between the two individuals, just a comparison about the political situation and the political realities and I think that's why what I really want to do is to say everybody should just take a moment, stop and think about what really matters here.

There is lots of reason to think we do need to get our house in order, yes, on immigration, yes, on issues of security but voting for Donald Trump is a little bit like trying to get your house in order, trying to clean up the house by burning down the house. That's the thing we have to focus on and the reason I say that is because he's not committed to basic constitutional ideas.

[09:15:09]

Remember, he proposed that we should go ahead and register Muslims, that's a violation of first amendment freedom of association and religion. Just yesterday, he proposed opening up libel laws, pushing back on press freedom. Again, violation of first amendment freedoms. He is also in his rallies condoned roughing up protesters, wishing he could throw punches at protesters and said it was better than the good old days when people would have been carried out on stretchers. That's on condoning unlawful violence. Those three things are anti- constitutional.

SMERCONISH: So you say what should happen now is that the American publics, Rs and Ds, and Is -

ALLEN: That's right.

SMERCONISH: Need to go around Marco Rubio. You think the only way to defeat him is the field needs to clear and people support Rubio, even Democrats.

ALLEN: That's right. That's my view. I believe, we the people, those who are opposing Trump should stand up, put their hands up and vote where the vote is most meaningful in effecting opposition to Donald Trump and the most meaningful place to vote a put against Donald Trump is with Marco Rubio.

SMERCONISH: Are you prepared as a - I presume as a resident of Massachusetts, maybe I'm incorrect but are you prepared to re-register just to do that what you're saying?

ALLEN: The reason I wrote this is because I went to go re-register and discover that I missed the deadline. I wanted to make sure everybody else knew they had a deadline to meet in order to do it.

SMERCONISH: The party elders and might all come out against Donald Trump, people might do that which you're espousing and yet it occurs to me it would probably help him because then he would be able to stand there and say "look at who is now rallying against me" and that would embolden his base. Have you thought about that?

ALLEN: I am calling out to every citizen of conscience and yes, I called out the party elders because I take them to be citizens of conscience but I am also calling out every single voter in America to stop and think about the basic fundamentals of having a republic that requires protection for freedom of association, protection for freedom of religion, protection for freedom of speech, protection for lawfulness and consistent protection of lawfulness for everybody. Non-arbitrary application of lawfulness and these are not things that Donald Trump has in his very character and being.

I take for example, there to be a link between his policy proposals and his basic instincts. Look at his talking over Jeb Bush in South Carolina debate. Look at his talking over everybody else. That's actually if you stop and think about it, stealing other people's right to freedom of speech. It's in his character as well as in his proposals.

SMERCONISH: Quick final question, is part of your motivation that you look at the juggernaut that he has become and you say to yourself, my god, he could defeat Secretary Clinton, my candidate.

ALLEN: I've known he was a strong candidate from the beginning. I wrote an op-ed to that effect in September. He has a floor of durable committed supporters, 20, 25 percent in the Republican party that was never going to go away and is going to bring other people on top of that. We are a sufficiently divided nation now that is enough to put somebody over the top, it's enough to catapult even somebody who James Wilson and one of our founding fathers, I believe would call a vicious man into the presidency and that is just not something that we can afford to let happen.

SMERCONISH: Dr. Diane Allen, thank you for being here.

ALLEN: My pleasure, thanks for having me.

SMERCONISH: You can tweet me @smerconish with your thoughts and I'll read the best and worst later in the program.

Up next, to take on Trump, Marco Rubio actually tag teamed with his rival Ted Cruz. But how long can he survive while mud slinging against the master? Rubio's senior advisor joins us next.

(BEGIN VIDEO CLIP)

SEN. MARCO RUBIO (R-FL), PRESIDENTIAL CANDIDATE: Let me tell you something, last night during the debate, during one of the breaks, two of the breaks we went back stage, he was having a meltdown.

First he had this little makeup thing applying like makeup around his moustache, those sweat moustaches.

TRUMP: You had to see him back stage. He was putting on makeup with a trowel.

No, I don't want to say that. I will not say he was trying to cover up his ears. I will not.

(END VIDEO CLIP)

(COMMERCIAL BREAK)

[09:23:10]

SMERCONISH: Marco Rubio hope's that this week's debate was a game changer, after Trump accused him of being a robot and worst, he jumped into the mud. He attacked Trump for his business bankruptcy and his daddy's money and yesterday on the stump, the war raged on.

(BEGIN VIDEO CLIP)

RUBIO: Last night in the debate during one of the breaks, two of the breaks he went back stage. He was having a meltdown. First he had a little makeup thing applying like makeup around his moustache because he had a sweat moustaches, then, he asked for a full length mirror, I don't know why because the podium goes up to here but he wanted a full length mirror. Maybe to make sure his pants weren't wet. I don't know.

Then -

TRUMP: It's Rubio.

Unbelievable.

(END VIDEO CLIP)

SMERCONISH: Joining me now is Jason Roe, a senior adviser to Marco Rubio. Jason, thanks for being here.

Is the new plan, hey, we'll stoop to his level?

JASON ROE, SENIOR ADVISER TO MARCO RUBIO'S CAMPAIGN: I don't think it's about stooping but calling out this con man that has somehow convinced conservatives across the country that he is in any way a representative of our interest as Republicans, as conservatives, as Americans.

I think what we saw the other night in the debate is a guy who really doesn't have any grasp whatsoever on policy. Has absolutely nothing to offer other than slogans in terms of what he do and what his agenda is and I think as we've watched for six, eight months now, doesn't have the temperament to be president of the United States.

SMERCONISH: But is the way that you do that to say he peed his pants?

[09:25:00] ROE: Well, listen, I would say the overwhelming majority of the criticisms have been focused on substantive policy things. Marco had a little bit of fun at a rally at Donald Trump's expense but let's face it, Donald Trump has attacked every one whose been even mildly critical of him, and if he can't take a little ribbing back at him, then I guess that just demonstrates again that he's not temperamentally suited for this job.

Because I tell you the president of the United States gets a lot of criticism and if he's going to stand in the Oval Office and use that bully pulpit to attack everyone that disagrees with him, we're not going to move the country forward.

SMERCONISH: Yes, I guess I would respond by saying that the president does receive a lot of criticism and it does come with the office but the incivility that has been a hallmark of the way this president has been treat is something we ought to be getting away from, not encouraging.

Let me ask you this political question, It occurs to me and I'm sure you'll disagree what you're actually doing now is helping Ted Cruz because someone who today is on the Trump bandwagon and hears Marco Rubio going after Donald Trump doesn't necessarily come to Marco if they become disenchanted. They probably go to Cruz, no?

ROE: Well, no, I don't think that's the case. I think, you know, looking at, you know, maybe talking about it in the lexicon of Donald Trump's language, looking at the way this is shaping up, Marco Rubio is an appreciating asset whereas Ted Cruz is depreciating asset. We got a real opportunity here to elect a guy who has actually laid out a vision, who can unite the conservative movement and who can move our party forward.

Donald Trump as our nominee is going to be a pinata in the hands of democrats and Hillary Clinton. People that are angry, that are channelling their anger through Donald Trump right now, I think need to consider how angry they are going to be when we lose the White House in this election, when we lose the United States Senate, when we lose seats in Congress and we basically help the Democrats take over the entire federal government, and by the way, in addition to the Supreme Court vacancy that we have with Justice Scalia's passing, there are probably three more justices that are likely to retire in the next four to five years. So we're looking at four appointments in the hands of a liberal Democrat in the White House.

SMERCONISH: Jason, final question, Tuesday night does your guy win anywhere?

ROE: We feel very good. I mean, it's too early to tell in a lot of the polling, on kind of what's happened from the debate Thursday night on the stump yesterday, you know, we'll probably start to see polling that indicates how the race is shaping up.

But I think we feel great about the direction that things are heading and I think we're going to surprise a lot of people on Tuesday and I believe this has already become a two-person race but I think Tuesday is going to reassure everyone it's a two-person race between the future president of the United States Marco Rubio and the charlatan, Donald Trump.

SMERCONISH: Jason Roe, thank you for being here.

ROE: Thanks, Michael.

SMERCONISH: Tweet me your perspective @smerconish. I'll read some later in the program.

Up next, the GOP has pledged to stone wall any Supreme Court nominees of President Obama so the president had a pow-wow with Senate judiciary committee veteran Senator Orin Hatch when he joins us, I'll ask what would happen if the president nominated one of Hatch's old Senate colleagues, Vice President Joe Biden.

(COMMERCIAL BREAK)

[09:32:47] SMERCONIS: It's one of the most important decisions a president can make, naming a new Supreme Court justice. But GOP leaders on the Senate Judiciary Committee have already declared they won't even interview, much less hold hearings for, any nominee of President Obama.

This week, White House sources leaked the name of Nevada's GOP governor, Brian Sandoval, a moderate Republican and former judge of Mexican heritage. But before it got anywhere, Sandoval withdrew.

Was that whole transaction political shadow boxing, maybe on both sides?

Now comes news that President Obama reached out to the most important person in a position to change this stand off.

Joining me now is Senator Orrin Hatch.

Senator, thank you so much for being here.

Please tell us about the conversation you had with the president relative to the Scalia position with the court.

SEN. ORRIN HATCH (R), MEMBER OF THE SENATE JUDICIARY COMMITTEE: I'm happy to be with you again, Michael. You do a very good job.

Well, it was a private conversation in the Oval Office and he let me see and sit in Joe Biden's seat. So, it was kind of fun. But we had a very quiet and also very reflective chat. And needless to say, he was a little bit uptight about the Republican's feeling this seat should not be filled at this time.

SMERCONISH: The letter that you signed, the letter the 11 of you signed said that the American people need to decide, need to play a role in who will be the successor to Justice Scalia. Will you respond to the criticism -- will you respond to the criticism that says, well, wait a minute, the American people decided that twice elected Barack Obama? HATCH: The Republicans believe and I think even some Democrats out

there believe that it would be better to put this over to the next year, and that whoever is president, make this determination and get it out of the heated politics we've had over the last number of years.

SMERCONISH: But, Senator Hatch, if the argument is we live in a very unsettled time politically speaking, imagine a President Trump. Do you think there will be any more continuity in that kind of environment that would allow a seat like this to be filled?

HATCH: Well, it always worries me whoever is going to be president because I want the very best that can find to fill the seat. By the way, Justice Scalia was one of the all time great justices and I don't think he shouldn't be degraded because the president might somebody that really doesn't fill his shoes.

(CROSSTALK)

SMERCONISH: But, Senator, respectfully, you're not even giving the man the opportunity to put someone in front of you. As I understand what you're saying is --

HATCH: No, we are.

SMERCONISH: -- we're not even going to interview this man or woman the president would deem deserving of your consideration, you are, quote, "advice and consent".

HATCH: This is not something -- this is something that literally people who are very concerned about the court and do not want to politicize and one of those, you know, would choose to do it seems to me.

SMERCONISH: It seems like the language, advice and consent, the 11 of you are putting forth says here is our advice, we will consent to no one.

HATCH: No, that's certainly not true and frankly, it's not 11 of us, it's every Republican in the Senate feel the same way, except may be one or two who do not. And since we're not going to have hearings on it, why interview people in your office? That seems to me that's false situation right there.

SMERCONISH: Senator Hatch, I'm curious to know whether you would grant an interview to former United States senator, former chair of the Senate Judiciary Committee and current vice president of the United States, Joe Biden, if the president should put his name forth?

HATCH: Look, I've been with Joe out here in Utah. We're close friends. I think highly of him.

This is not a question about the person. This is a question about the system. This is a question about what we should or should not do, and I believe we should not put a name up no matter who it is in this very, very difficult time. SMERCONISH: But are you telling me that if the president puts forth

your friend Joe Biden and he knocks on the door for an interview, Orrin Hatch isn't opening it?

HATCH: He can always get through my door but won't be for an interview for the Supreme Court, and look why?

(CROSSTALK)

SMERCONISH: You're saying Mr. President, you have a year left on the clock and we don't want to hear what name you're putting forth?

HATCH: Don't tell me that Republicans are being mean here because they are not. We just don't believe it should be done by this president in this presidential year. As bollixed up as this presidential year is, we don't think we're likely to get a really tough Supreme Court justice.

But even then, we think it's a bad move to allow this president to have a justice with just a number of months left to go when we've got these kind of problems between both sides on judicial selection.

It isn't the person. That's not the situation. The next president they put up one of these people you mentioned. But --

SMERCONISH: It's very -- sir, I have to tell you, it's very hard for me to accept that perspective. It really is.

HATCH: I understand.

SMERCONISH: It's frustrating because I say, you know, there's got to be more respect shown for the office than to say we don't care who you send us.

HATCH: Well, you're saying that we got to accept anybody this president sends up --

SMERCONISH: No, I'm not. No, I'm not. I'm saying have the dignity to welcome --

HATCH: Yes, you are, you're saying --

SMERCONISH: -- the person into your office and hear them out.

HATCH: I would if we haven't made the decision that we shouldn't play a game here and let them know where we are and we're going to put it over until next year. They have just as much opportunity and chance of becoming president as we do and it gets out of what really is a very, very politicized arena right now.

SMERCONISH: Thank you, Senator. I really appreciate your time.

Still ahead, in the midst of the South Carolina primary and Super Tuesday, the final batch of Hillary's controversial e-mails are about to be released. I'll talk to the man at the forefront of that legal battle. (COMMERCIAL BREAK)

SMERCONISH: The State Department released another batch of Hillary Clinton e-mail yesterday. The final batch will be released on Monday.

But the real news came this week when Judicial Watch, a conservative legal watchdog group, succeeded in getting a federal judge to rule that top aides to Mrs. Clinton should be question under oath about her use of a private e-mail server. The judge wants a discovery proposal by April 12th, just about the time Clinton is hoping to wrap up the Democratic nomination.

Judicial Watch has been at the forefront of litigation over the e- mails having filed at least 20 lawsuits. Thomas Fitton is the head of Judicial Watch. Lanny Davis was a White House special counsel in the election administration.

I will start with Thomas.

Mr. Fitton, a federal judge appointed I should name by Bill Clinton saying this is about the public's right to know and then at least a reasonable suspicion has been raised access to records, government records was undermined. How so?

TOM FITTON, PRESIDENT, JUDICIAL WATCH: Well, the system was set up and people like Judicial Watch or congressional investigators or anyone else asking for records under law from Mrs. Clinton's State Department, either while she was there and afterwards didn't know about this system.

And the State Department was telling Judicial Watch and telling the courts they looked everywhere they reasonably could for records responsive to requests that we were making on Benghazi, on the job of her aide Huma Abedin, there's a controversy about her job specifically in this case we're investing and we're told, no, we looked everywhere this is it and it turns out there is this whole cache of e-mails and that's what got the court's attention, not only the court here but others in the District of Columbia.

So, it really up ended the whole Freedom of Information Act process, and that's why this discovery will take place to figure out why the system was set up, who knew about it and did the State Department support it, and where might other documents be?

Hillary Clinton only turned over half of the e-mails she created while she was at the State Department. Should that other half be turned over? Those questions will be resolved thanks to discovery.

SMERCONISH: Let me ask you this during, during her tenure from '09 through 2013 do you know of any Freedom of Information Act request put forth by anyone where something from her private e-mail server was then produced?

FITTON: No. There was nothing that I'm aware of that showed that she had this separate system in response to Freedom of Information Act request. SMERCONISH: OK. How should the system have worked if she didn't have

a private server but rather, was operating on a state.gov account, how would it have worked?

FITTON: The request would have gone to the State Department and officials in the state department would have searched the e-mail servers of Mrs. Clinton or e-mail accounts on the state.gov network.

SMERCONISH: When you file your proposal for discovery by April 12, will you include a request to take her deposition?

FITTON: Unlikely. It's initially that we'll initially need that. It may come to pass that we will, but the first folks will want to talk to are former and current officials that have known about the system and should have information that will help the court figure out where the documents are. We may not need to speak to Mrs. Clinton to figure that out.

SMERCONISH: Thomas Fitton, thank you for being here.

I want to switch now to Lanny Davis.

Lanny, isn't there an issue here of lack of transparency?

LANNY DAVIS, FORMER WHITE HOUSE SPECIAL COUNSEL, CLINTON ADMINISTRATION: Well, there is an issue of the rule of law, and it's before the courts, whether it's lack of transparency. As soon as Secretary Clinton got out of office, she is the only secretary to voluntarily disclose all of these e-mails and ask the State Department to fully put them out publicly over 25,000.

So, it wasn't the tradition before Secretary Clinton to do that, Michael, and you have to go back to Secretary Colin Powell and Secretary Rice who had recently people working for them post declared their e-mails they used that were private addresses contained classified information and somebody either representing Secretary Rice or Powell said this is absurd to do post facto declarations.

But to answer your question, yes, the Freedom of Information Act needs to be followed. The State Department and Judicial Watch are now litigating, another judge through out the Judicial Watch suit. Have great respect for this federal judge. Let's let the courts decide what is or isn't necessary to produce after review by the State Department.

SMERCONISH: What troubles me is the idea that if I, as a journalist, had filed a Freedom of Information Act request of Secretary Clinton during her tenure and if there were documents on her private email server, there would have been no way my response would have included those documents because the State Department FOIA people were out of the loop. There was no access they would have had. That's what I think is most problematic about this.

DAVIS: Well, let's at least state the facts and then the problematic side of it could be subjective judgment by you and I respect you greatly. But let's at least start with facts. Ninety percent of the e-mails

that Hillary Clinton received and forwarded, 90 percent of them went to state.gov addresses. So, if Freedom of Information Act requests to the state, not to the secretary, would have been by at least the 90 percent on the server as received by State Department people.

So, the 10 percent that you might not have known about because they were on their private server, Secretary Clinton that was a mistake, I shouldn't have used the private server.

But we are talking about 90 percent versus 10 percent. And again, to repeat this is a matter in the courts between the State Department and Judicial Watch --

SMERCONISH: I get it.

DAVIS: Secretary Clinton asked the state department to release everything all at once months ago.

SMERCONISH: Right. Lanny, I'm just -- you went to Yale Law School with her and it would not surprise me to learn she solicited Lanny Davis' advice and you wouldn't have been on a .dot-gov server. And perhaps I as a journalist would have a right to know what your counsel was.

Take my final 30 seconds and respond to that hypothetical.

DAVIS: My final 30 seconds, she never solicited my advice except the first day where she said where is the nearest legal services clinic. I said, Hillary, you need to get to the first semester of law school.

Let me close by saying I was out in neighborhoods in Columbia, South Carolina, yesterday and Nebraska asked me about this issue. They asked me about jobs.

My 10-year-old son Jeremy is at home about to celebrate his 11th birthday.

[09:50:00] And every young person also is worrying about their jobs. That's really the big issue before the country --

SMERCONISH: All right. I am all for Jeremy's birthday. Happy birthday, Jeremy. I served in the Bush 41 administration and remember the requests that used to come in and how seriously we needed to take them. To be continued.

Lanny Davis, thank you.

DAVIS: Thank you, Michael. Thanks for the plug for Jeremy.

SMERCONISH: For Jeremy, yes.

Up next, your best and worst tweets like this one.

(COMMERCIAL BREAK)

SMERCONISH: Hey, I like to say that if can you spell Smerconish, you can follow me on Twitter.

Here's some of what came in during the course of this hour of the program. Check this out.

"Smerconish, if primary brings out pro wrestling in the '60s, the only villain taking out trump is this guy, Firpo."

[09:55:01] I remember him. And I think that his name was Pampero Firpo if I'm not mistaken. And it was in the '70s, not the '60s.

Here is another one that came in this hour of the program. "Smerconish, crushing it on CNN with the haystacks Cal -- everybody loves the pro wrestling references including me. Kudos. Thank you for that.

Bruce, one more if we have time for it. Maybe not. A lot of -- there we go. New rule -- I love this.

"No senator in their last year can vote on any pending legislation nor can they introduce anything for consideration."

I love that point. Look, the Republicans on the Senate Judiciary Committee, I guess that they're on the mindset that President Obama should appoint Supreme Court justices only during President Obama's first, what, had 3/5 of his terms in office?

I'll see you next week.