cnn. that does it for us. we'll see you at 11:00 p.m. for another edition of "360." right now it's time for "cnn tonight" with don lemon. this presidents' day, it is war within the gop. >> cruz just said -- i think he's an unstable person. i really do. >> have you noticed how rattled donald gets when his numbers start going down? >> i thought it was a little strange that a front-running candidate would attack the president of the united states who did keep us safe while he was building a reality tv show. >> every time we call each other names and bicker, these debates get us at each other's throats, thelonger this goes on. >> it's just heating up. this is "cnn tonight." i'm don lemon. the rhetoric really heating up on the campaign trail.

jeb bush is rolling out the big guns. george w. and laura bush. but in the wake of the sudden death of justice antonin scalia, the big issue in this election may be the supreme court. and the democrats aren't losing any time getting the gop on that. >> well, how about obeying the constitution? and start holding hearings when president obama nominates the next supreme court justice? >> the senate has a duty to consider that. and to decide whether or not to confirm whoever the president nominates. >> there's a lot going on tonight. i want to begin with the gop at war and the debut of george w. bush on the campaign trail. jamie gangel, douglas brinkley joining me. how are you? >> great. >> great. president george w. bush joined

his brother on the campaign trail for the first time today. he took some veiled swipes at donald trump. let's watch. >> jeb is a man of humbled deep and genuine faith. faith that reveals itself through good works, not loud words. you can trust jeb bush to be measured and thoughtful on the world stage. our enemies and allies will know that when president jeb bush speaks, he will follow through on his words. there seems to be a lot of name calling going on. but i want to remind you what our good dad told me one time. labels are for soup cans. the presidency is a serious job that requires sound judgment and good ideas. >> jamie, what did you make of the former president taking aim at donald trump, and why now? >> maybe not so veiled, huh?

he went over and over and over about, look, this is -- we're down to the wire here. they are going to vote on saturday. and i don't think what donald trump said during the debate on saturday night was lost on former president bush. so he kept stressing that jeb was serious, not loud, not the theatrics. this is the moment to come. i will say, people have said, why did they wait so long. >> yeah. >> in fairness, if they had come out early in the campaign, we'd probably be criticizing jeb bush for not being able to stand up and do it on his own. so i think that, look, the timing is they needed them now. his mother came out. his brother came out. and i think common sense dictates we may see more of this as the week goes on.

one interesting point, don, that was the best speech we've seen jeb bush give out on the stump. so whether his brother got him fired up or whether he just -- nothing left to lose, going for it, it -- it certainly was a great event for them. >> let's go there. i was going to ask about donald trump. let's stay on jeb right now. you saw a different jeb. we have another jeb sound bite i want to play. you saw a different jeb out there tonight. take a look at this. >> if you are tired of the politics of division, if you want someone with a proven record, a solid conservative who acted on his conservative beliefs each and every day as governor, someone with 32 years of private sector experience, then you are looking at the nominee for the republican nomination, and i can beat hillary clinton. i can promise you that. >> so douglas, where has that jeb bush been?

>> he's been in hiding quite a bit. i think jeb bush had a very bad out of the gate start in the summer. jeb bush discombobulated him. that term low energy stayed on him. he bobbled questions about his brother early in the campaign. today you see a jeb bush that's got a little bit of momentum going. i thought it was a marvelous speech by george w. bush coming on presidents' day, fired up the crowds a little. and at least, if jeb bush goes down in flames in south carolina, or if his campaign starts failing he could feel his family got behind him. having laura bush there is not a bad idea either. she's very popular with the american people. and jeb's leading your newscast tonight, not trump or cruz, per se, and that's an accomplishment in its own right. >> do you think this could be a gam game-changer, tonight's speech? >> i think he may have been too far down in the polls. it's a long way to go. it's a lot of ground to make up between now and saturday for jeb

bush. he might be able to come in third and claim a victory by coming in third in south carolina with trump and cruz slugging it out in front of him. marco rubio seems to have faded from the discussion and kasich has, too. jeb may be feeling if he can get a third out of south carolina and move forward from there he may be doing okay. >> jamie, do you think south carolina, it's saturday. is there enough time for -- with the bush campaign to change things? >> you know, the bush campaign believes that this race is still fluid. i don't know if that's their dreaming and hoping or whether it really is. we saw marco rubio after a disastrous debate performance in new hampshire. his numbers did plummet. so there is some room. i think the other thing that was interesting today was governor nikki haley. everyone wants her endorsement. her phone has been ringing off

the hook. she has been undecided thus far. she has an 80% approval rating. you've interviewed her a couple of times. she's very popular. she met with former president bush. she and her family met with him and with former first lady laura bush today. president bush mentioned her in his speech. there is some love and some lobbying going on for nikki haley. and i'm not saying there is an endorsement coming. she said today she was still undecided, but if she picks jeb bush, that could give him a lift. >> that could be a game-changer. you are right. douglas, you said we weren't talking about donald trump. or we didn't lead with him but i'm going to ask you about trump because he hammered jeb bush about not using his last name for months. he was jeb exclamation point. today was no different. listen to this. >> i think the name bush would have been better than an exclamation point.

he's jeb bush. the exclamation point didn't work. now he's using bush. i think he should have used his name. i think it shows he wasn't proud of the family. i don't know exactly what it tells you. i would tell him, why don't you use the name bush? you are bush. use the name bush. >> it's a tightrope, when to bring the bushes out, his famous family out and when not to and using his last name. do you think, douglas, this will be a game-changer for him? will this help or hurt? >> the nikki haley thing is very interesting. i heard donald trump dissing on nikki haley. talking about people from syria moving to south carolina and that she's totally wrong. so the trump camp may be sensing governor haley's backing of jeb bush coming in the coming day or two. but as for the exclamation point of jeb, i think everybody thinks it was a mistake.

but hindsight is easy. that slogan worked for him in florida when he ran for governor. he tried it this summer but quickly became fodder for the late night comedians. colbert once had fun with him in a devastating way early in the campaign. now he's not running as jeb! but jeb bush and proud to have his brother at his back. not the brother who brought us 9/11 as trump would like it but the brother who gave us the patriot act, made america safer. both trump and bush are fighting over veterans in the state of south carolina. both used the words wounded warriors an awful lot, wanting to get those vet votes. >> a brother very popular in south carolina. douglas and jamie, thank you. as washington prepares to do battle over the supreme court, i'm going to talk to a man who knew justice scalia better than most people. i'm going to ask him who he thinks could be the next nominee

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supreme court and other federal buildings in the wake of the sudden death of justice scalia on saturday. washington is preparing to do battle over the replacement. now we want to bring in cnn senior legal analyst jeffrey toobin and the author of "making a case, the art of persuading judges." how are you doing, brian? you doing okay? >> i'm holding up. it's a difficult time. >> sorry for your loss. you collaborated with justice scalia but also were a close friend. talk about that friendship. what was he like? >> we were together 12 days in the last three weeks. we spent 14 hours a day together in singapore and hong kong. justice scalia was, i think, undoubtedly the most famous judge in the english speaking world. as we would walk through a mall in hong kong, he'd be recognized

several times. and he always wore it very lightly. if anything, he engaged in a little bit of self-mockery. but he was a humble man. and i found that in working on my two books with him. he was very deferential to my point of view, surprisingly. i hadn't expected that at all. ten years ago when we began our collaboration, i did not know the man well at all and thought he might be difficult. in fact it was the opposite. >> jeffrey toobin, you said scalia will be ranked as one of the most influential judges in american history. how did he change the highest court? >> he brought a school of interpretation called originalism. the idea that the constitution should be interpreted as it was understood in the 18th century. that in the 18th century, the authors didn't think anything about abortion or gay rights so

we shouldn't recognize gay rights or abortion rights either. that's a very influential school. it is not necessarily triumphant. he lost a lot of these big cases, but in terms of a system of belief about the constitution, that is really widely, if not universally believed, very few justices in history have brought one single handedly the way he did. >> people may have disagreed on some of his writings or whatever he ruled on. but they say it was -- the fact that he stood up for what he believed in and he had, you know, the courage to do that, they respected him for that. >> they did. frankly, all the justices stand up for what they believe in. i don't think he's distinctive in that regard. he's distinctive because he was a beautiful writer, a big personality and dominated oral arguments at the court. he left a huge impact because of everything he did.

>> he was a linchpin of the conservative majority. what does that mean for the court? >> that's means that there are four conservatives and four liberals. and that's why the fight over this seat is so intense. conservatives have basically dominated the court for two generations. not winning every case but certainly as a group. if president obama gets to have a fifth liberal put on the court, it could transform many, many things about how the court rules. >> go ahead, brian. >> lest we deceive your viewers, what's he believed in mostly was a method, and that was separation of powers and limited judicial power. and so a lot of people think that the u.s. supreme court justices get to decide what they believe in and make that the law. justice scalia strongly believed that his own personal preferences and policy preferences should not matter. and he did believe that the

constitution had a fixed meaning to be applied today to the modern world but that it did not morph in its meaning year by year. that we did not have a continuing constitutional convention in washington as the constitution changed its meaning without amendment. >> you knew him like most people didn't know him. you were close to him. can you tell us about justice scalia, the family man? what was that side of him like. >> well, he had -- he has nine children, 35 grandchildren. his nine children in all walks of life in the military, in the priesthood, in law, and an english professor. he had a varied family. and he was absolutely devoted to them. when he -- when we were in hong kong, in singapore, the thing he worried about every day most of all was talking to his beloved

wife maureen. he was so dedicated to her and so sorry that she didn't make the trip with us, but he was absolutely devoted as a family man. he was a very traditional man. >> have you had the opportunity to speak with family members? if so, how are they doing? >> i believe they are in -- doing the best they can. i have communicated only through e-mail. >> don, he was 79 years old, but so full of life and, you know, i think it's indicative. here he was going around asia just a couple of days ago. 79-year-olds, it's not usually a total shock when they die. it was a total shock when justice scalia died. >> jeffrey, what are you hearing about some of the candidates, possible nominees? >> about three names but again, this is in the realm of informed

speculation, but speculation. sri srinivasan, 48 years old. indian american. grew up in kansas. jane kelly. circuit court judge from iowa, an associate friend of chuck grassley. paul watford, a former prosecutor, african-american on the 9th circuit. all would be -- all received bipartisan support when they were nominated to the d.c. circuit, but none of these people are going to be confirmed by the republican senate. it's going to be interesting to see how the battle plays out, but the republicans in the senate are not giving this seat to barack obama. >> you wrote a book about "the nine." >> yes, i did. >> bryan garner, stick with me. when we come back, i want to talk about justice scalia's legacy and what he said about that in a candid interview with cnn.

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as has been discussed, justice antonin scalia revered the constitution and dedicated his life to interpreting it. he talked about that and his greatest achievements on the supreme court in a candid interview with piers morgan in 2012. here's some of that interview. >> you are a man that believed fundamentally that the law in america should be based rigidly on the letter of the constitution. that's what's you believe, isn't it? >> yes, give or take a little. rigidly, i would not say, but it should be based on the text of the constitution, reasonably interpreted. >> people that criticize you for this is a 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 which may put a different impression on a particular piece of text. why are you not prepared to accept that that means you can move with the times, to evolve it? >> 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 those things have to apply to new phenomena that didn't apply at the time. 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 text ualists or not originalists at least believe 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. >> as we sit here now, what would you say your greatest achievement has been as a supreme court justice? >> wow. i think, despite the fact that not everybody agrees with it, i think the court pays more attention to text than it used to when i first came on the court. i like to think that i've had something to do with that. i think the court uses much less legislative history than it used to in the past. in the '80s, two-thirds of the opinion would be discussion of the debates on the floor and committee reports and that doesn't happen anymore.

if you want to talk about individual -- >> on that point, the legislative history point, again, critics would say because you're such a constitutionalist and always go become to the way they framed the constitution, they debated all of that. that is in its way legislative history, isn't it? >> what is? >> the framing of the constitution. >> the federalist papers? >> what's the difference really? >> i don't use madison's notes as authoritative on the meaning of the constitution. i don't use that. i use the federalist papers but not because they were the writers of the federalist papers were present. one of them wasn't. john j. was not present at the framing. i use them because they were intelligent people of the tomb and, therefore, what they thought this language meant was likely what it meant. >> why do you have such faith in those politicians at that time? you know, i mean, these days, if

the current crop of politicians created some new constitution, people wouldn't have the faith that young, burning unflinching faith. why are you so convinced that these guys over 200 years ago were so right? >> you have to read the federalist papers to answer that question. i don't think anybody in the current congress could write even one of those numbers. these men were very, very thoughtful. i truly believe that there are times in history when the genius bursts forth at some part of the globe, like 2,000 b.c. in athens or florence for art. and i think one of those places was 18th century america for political science. madison said that he told the people assembled at the

convention. gentlemen, we are engaged in the new science of government. nobody had ever tried to design a government scientifically. they were brilliant men. >> do you wish we had a few of them now? >> i wish we had a few of them now. i do not favor tinkering with what they put together. >> i want to bring back justice scalia's friend and co-author bryan garner. bryan, it has to -- i don't know. what does it do when you sit and listen to that? >> well, it's moving and, you know, i was speaking to him just last wednesday, and so it's hardly -- he called me wednesday morning and he said to me, i didn't know what he was talking about. said brian, the world of tennis has lost a great competitor. and then he told me that he would never play tennis again.

he had hurt his right shoulder. and in fact, i had been helping him exercise his right shoulder. i told him that maybe i had been making it worse because it was a torn rotator cuff instead of a frozen shoulder that we thought it was. but he said, bryan, i will have to live without playing tennis for the rest of my life, but i think i can live with that. little did i know that the rest of his life would be 36 hours. >> so sorry about that. what is that like to hear him talk about his own legacy? >> well, i believe that he had it exactly right, that the courts in this country, not just the united states supreme court, but all the federal courts and the state courts pay much closer heed to statutory text and to

constitutional text than they once did. there was a period in which so-called consequentialism and purposivism were very much in vogue. let's not pay too much attention to the grammar here. let's not pay too much attention to the words and get caught up in the words. we can go around or behind the text, if necessary, to get to the best policy. justice scalia believed strongly that any good judge should not infrequently end up with a decision that the judge thought to be unwise policy. and, in fact, thurgood marshall said very much the same thing, that if the -- if congress wants a foolish policy, then they get a foolish policy. that's not to say absurd. if there's a truly absurd -- some sort of unconscious

absurdity, it's just caused by accident, then, of course, the courts can reform that. but if it's simply a policy that the judge thinks unwise, the judge should not be imbuing the statute essentially amending the statute by adding or subtracting words. >> bryan, we're going to talk more so stay with me, please. i want to talk about what justice scalia had to say about american politics. i've been claritin clear for 14 days. when your allergy symptoms start... ...doctors recommend taking one claritin

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justice scalia was a constitutional scholar who just didn't look to the past. he also had a lot to say about american politics today. here's more from his interview with cnn's piers morgan. >> let's turn to political fund-raising which, at the moment, under your interpretation, i believe, of the constitution, you should be allowed to raise money for a political party. the problem as i see it and many critics see it is that has a limitation to it. what you've now got are these superpacs funded by billionaires effectively trying to buy elections. that cannot be what the founding fathers intended. thomas jefferson didn't sit there constructing something that was going to be abused in that way. i do think it's been abused. don't you? >> i think thomas jefferson would have said the more speech, the better. that's what the first amendment is all about.

so long as they know where the speech is coming from. >> it's not speech. it's money. >> you can't separate speech from the money that facilitates the speech. >> can't you? >> it's utterly impossible. could you tell newspaper publishers you can only spend so much money in the publication of your newspaper? would they not sos they is abridging my speech? >> newspaper publishers aren't buying elections. >> the election of a president, as you know, is an incredibly important thing. we shouldn't be susceptible to the highest bidder. >> newspapers endorse political candidates all the time. they are almost in the business of doing that. >> yes. >> and are you going to limit the amount of money they can spend on it? surely not. >> do you think perhaps they should be? >> oh, i certainly think not. as i think the framers thought that the more speech, the

better. now you are entitled to know where the speech is coming from. you know, information as to who contributed what, that's something else. >> justice scalia, you have very strong opinions about this at the time. i know you do now. why are you so violently opposed to it? >> i wouldn't say violently. i'm a peaceful man. adamantly opposed. >> adamantly. >> basically because the theory that was expounded to impose that decision was a theory that does not make any sense. and that is, namely, the theory of substantive due process. there's a due process clause in the constitution which says that no person shall be deprived of life, liberty or property without due process. that is obviously a guarantee, not of life, not of liberty, not of property. you can be deprived of all of

them but not without due process. my court in recent years has invented what is called substantive due process by simply saying some liberties are so important that no process would sufice to take them away. and that was a theory use inside roe vs. wade. it's simply a lie. the world is divided into substance and procedure. >> should abortion be illegal in your eyes? >> should it be illegal? i don't have public views on what should be illegal and what shouldn't. my view is regardless of whether you think prohibiting abortion is good or whether you think prohibiting it is is bad, my only point is the constitution does not say anything about it. it leaves it up to democratic choice. some states prohibited it. some states didn't.

what roe vs. wade said was that no state can prohibit it. that is simply not in the constitution. it was one of those many things, most things in the world left to democratic choice. and the court does not do democracy a favor when it takes an issue out of democratic choice. >> what has been your hardest decision do you think? >> my hardest? >> yeah. >> you don't want to know. >> i do. >> it's the dullest case imaginable. there's no necessary correlation between the difficulty of a decision and its importance. some of the most insignificant cases have been the hardest. >> what has been the one -- >> it probably would be a patent case. you want me to describe it? really? >> no. what's been in your mind the most contentuous. what's the one most ask you about? >> contentious? well, i guess the one that, you know, created most waves of

disagreement was bush versus gore. that comes up all the time. my usual response is, get over it. >> get over the possible corruption of the american presidential system? justice scalia? >> look, my court didn't bring the case into the court. it was brought into the courts by al gore. he is the one who wanted courts to decide the question. richard nixon thought that he had lost the election because of chicanery in chicago. he chose not to bring it into the courts. so the only question in bush versus gore was whether the presidency would be decided by the florida supreme court or by the united states supreme court. that was the only question, and that's not a hard one. >> no regrets? >> no regretss at all, especially since it's clear it

would have ended up the same way either way. the press did extensive research into what would have happened if what al gore wanted done had been done county by county, and he would have lost anyway. >> interesting. back now with justice scalia's friend and co-author bryan garner. his absence is likely to impact some of the major decisions. how would he feel about that? >> i think he would feel very regretful about that. just the fact that there is now an incomplete court. but what you've just heard was a very good example of his deft analysis. and as smart as piers morgan may

be, he was no match for antonin scalia in that dialect that you just heard. >> you believe that no justices' vote was politically motivated? what would he say about the political fight over who would replace him? >> well, he was a deep believer in democracy. and the whole thing about citizens united, for example, is, the idea that merely pouring money into campaigns is manipulating -- completely manipulating elections and the people cannot be trusted to deal with the speech they hear is quite an argument i think, an anti-democratic argument. what would he think about the fight to -- that looms for replacing him? >> yes, sir. >> well, i think -- i think he

would probably listen to the kind of analysis that jeffrey toobin has given. and people are saying, well, the republicans are going to do this, and the president is going to do that. and the democrats are going to do this. and he would probably understand each side and say, yes, that probably is what's going to happen. >> justice scalia -- >> i think the prognostications about the stances that the two sides are going to take. those are probably correct, and -- but it's difficult to prognosticate and say, well, we're going to have a stalemate. but not all gridlock is bad. >> i want to ask you about justice scalia and justice ginsburg. self-described best buds. what drew them together? how did that happen? >> justice ginsburg is my oldest

friend on the court. i've known her longer than anyone else. she's just a wonderful person. you can see why anybody would be drawn to her. but i think their early days as judges on the d.c. circuit, they became very close. who is to say why two people become friends? but they are both extraordinary people. and i think it's a sterling example of how people can be devoted to each other, even though they have very different ideologies or views of the proper methods for judging. >> bryan garner, thank you. it's an honor to have you on. >> thank you, don. we have two unique two-night event on cnn this week. for the very first time, all six republican presidential candidates, all six of them will answer questions from the voters of south carolina. it's our live televised town hall moderated by anderson

cooper and seen only on cnn this wednesday and thursday night at 8:00 eastern. ben carson, marco rubio and ted cruz kick off the night on wednesday. then john kasich, jeb bush and donald trump field questions from voters thursday night. don't miss the cnn gop presidential town hall. a live two-night event wednesday and thursday at 8:00 on cnn. when we come right back, what will the sudden death of justice scalia do to the balance of power on the supreme court? and what about his replacement? even "turkey jerks." [turkey] gobble. [butcher] i'm sorry! (burke) covered march fourth,2014. talk to farmers. we've seen almost everything, so we know how to cover almost anything. ♪ we are farmers. bum-pa-dum, bum-bum-bum-bum ♪

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the crucial question in washington tonight is who will replace justice antonin scalia and what will happen to the balance of power on the highest court in the land. let's discuss with alan dershowitz, and george who was deputy attorney general under president george h.w. bush. thank you gentlemen. alan, to you first. before we get to the nitty-gritty, you knew justice

scalia. i imagine you disagreed on a whole host of issues. any stories you want to share with us. >> we never had a conversation that didn't include an argument except when we talked about his father. i knew his father, a professor at brooklyn college when i was a student there. he wrote he a letter that said some day before both of us become senile he'd like to sit down and persuade me that his vote in bush versus gore was correct. i'd written critically about it in "supreme injustice." he came and helped me teach my class in criminal law at harvard and debated in israel and in the united states. we have this wonderful feisty relationship. he wrote a blurb for my book "taking the stand" in which he said you aren't as bad as some of my right wing friends say. i'll miss him personally and professionally. >> are they going to go ahead or

could we see a delay in their schedule with just eight justices? >> the court will certainly move ahead. john roberts, i think, has shown conclusively that one of his most important objectives is protecting the court as an he' demonstrate that the court can move ahead. whether some cases are put off and submitted for reargument when the court is in full strength is probably a question that is worth asking, but we'll only know when the court makes that decision. >> allen, this for you. ted cruz and marco rubio are saying it should be the next president to nominate the next president. ted cruz first. >> one more liberal justice we will seek our constitutional -- at a level never before seen in the history of this country. we're one justice away from the

supreme court mandating abortion on demand with no limits up to the delivery. striking down every state restriction on abortion we have. we are one justice away from the supreme court effectively reading the second amendment out of the constitution. >> so with so many key cases on the docket this year. what happens to those? >> well, first of all, ted cruz who is was my student should study the constitution. the constitution says the president it doesn't say lame duck. it doesn't say -- it says the president shall nominate appoint supreme court justices. so cruz is saying that the president doesn't have that authority or congress should stop him from exercising that authority. the president has two options. he can try to get a liberal like

the two we previously appointed. they will be rejected, of course, then that can become a political issue in the campaign. he may pick that course. that would be a mistake. the second is to find a moderate. somebody who may be appointed by president bush or a republican in the past. somebody with moderate views. somebody who represents an ethnic group never before on the supreme court. make it hard for the republicans to turn that person down. i think that's the course that president obama will follow. i think that's the wise course and the constitutional course. >> so what do you think of that, george? what do you think should happen soon or should it wait for the next president? >> regardless of what i think will happen. i think it is going to wait for the next president. look, it's very easy to analyze this if we just reverse the situation and the majority leader is harry reid and the. -- president is the republican and there's a slot to be filled this

late in the second term. harry reid would never let that vote take place. if it ever did come to a vote, he would be rejected. >> do you agree, alan? >> i agree with that. i think there's hypocrisy on both sides. i think the democrats have made their position much harder because they've done similar things in the past, and i think neither party should try to impose their will on who gets nominated except through the advice and consent of the senate. and so because one side has been hypocritical doesn't mean the other side should be. i agree with you. predictable which this is what will happen. i think the president will make it harder on the republicans if he were to nominate the person i described. a moderate who was perhaps appointed and confirmed eed republicans in the past. i agree with you. i think the cynicism in washington, what is going on today with the hypocrisy on both sides makes it hard for the

constitution to be followed. that's a great tragedy. >> speaking of the hypocrisy on both sides. let's listen to chuck schumer the last time something like this happened. >> we cannot afford to see justice stephens be replaced. given the track record of this president and the experience of hearings with respect to the supreme court, at least, i will recommend to my colleagues that we should not confirm any bush nominee to the supreme court except in extraordinary circumstances. >> that was 2007. what do you make of that, george? >> i think it illustrates the point that we do agree on. i think what we don't agree on is i wouldn't term it hypocrisy. i would term it politics. there's a principled reason

behind it. the republicans are saying we're close to a important presidential election. in fact a presidential election perhaps unlike any other in the last hundred years and the people ought to have a voice in who is selected through the president that they decide to elect. >> are they taking a chance? i wonder if republicans are taking the chance because let's say a democrat gets into the white house and, you know, in november. are they taking a chance that they will nominate someone way more liberal than they would have gotten through this time? >> of course. it fend -- depends on who is elected in the senate. do you want to preserve your daughter's right to have an abortion. vote for the democrats. this is going to be the first election in moderate times, certainly since the new deal, where a supreme court appointment may be a central point in the election of president. and that's unusual, and, you know, the people may well get to

decide. of course, if the president really to appoint the moderate and kind of split the difference, i think it would help bring the country together. but unlikely it's going to happen. unlikely the republicans would allow it to happen. we live in a partisan age and it affected the supreme court. >> thank you very much. we have a unique two night event on cnn this week for the first time in campaign. all six republican candidates answer questions from the voters in south carolina. it's moderated by anderson cooper. this wednesday and thursday night beginning at 8:00. live two night event wednesday and thursday beginning at 8:00 p.m. here on cnn. when we come back the battle in washington over the supreme court. who is going to replace him? what will it mean in november?

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president's day the race for the white house is turning into a war. one that can tear the gop apart. this is "cnn tonight." i'm don lemon. two days to go until the gop town hall. republicans are taking aim at each other. all of washington preparing to do battle over the supreme court. what will all of this mean