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Attorney Alan Dershowitz Challenges Ted Cruz to a Debate on Supreme Court; The O.J. Simpson Trial Currently a Miniseries on FX; Five Deputies Disciplined for Failing to Immediately Arrest Trump Supporter Who Attacked Protester; Male Media Commentator to Clinton: Smile; Way Forward for Sanders?. Aired 11p-12a ET
Aired March 16, 2016 - 23:00 ET
THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.
[23:01:43] DON LEMON, CNN HOST: What's wrong with this picture? Does Hillary Clinton need to smile more? This is "CNN Tonight." I'm Don Lemon. One TV host tweeting that Clinton should smile following her Super Tuesday victories, but that's got a lot of people up in arms, including Samantha B, who tweeted "is this any way to treat a presidential candidate?"
Plus, the other thing people are talking about tonight, "The People v. O.J. Simpson." It is a hit series. Is this hit series, on FX, taking liberties with the story of the trial of the century?
I want to begin with the news in the battle for the Supreme Court. President Barack Obama setting up a showdown today with the pick for -- his pick for Judge Merrick Garland to fill the vacant seat of the late Justice Antonin Scalia. Can the President call the Senate's bluff or will Republicans refuse to consider his nominee?
Here to discuss Alan Dershowitz, his latest book "Taking the Stand, My Life in The Law"; also, Brian Garner, Justice Scalia's co-author of "Making Your Case, the Art of Persuading Judges"; and, CNN Senior Legal Analyst Jeffrey Toobin. His latest book is "The Run of His Life: The People v. O.J. Simpson." Three prolific authors with us, among other things; some very accomplished gentlemen. Good evening to all of you.
Jeffrey Toobin, I want to start with you. The President made his pick for the Supreme Court, Garland Merrick, why him and does he stand a chance at the nomination?
JEFFREY TOOBIN, CNN SENIOR LEGAL ANALYST: Well he is an impeccably qualified judge. He has been 18 years on the second most important court in the country, has a reputation as a moderate; he has excellent credentials. He's a public spirited person. Under normal circumstances I think he would stand a very good chance at confirmation. These are not those circumstances. The republicans have said very, explicitly they will not give him a vote, and you know what I think that means?
TOOBIN: They will not give him a vote.
LEMON: They will not give him a vote. So it wasn't just theatre? The President felt he had an obligation to nominate someone and this had to happen?
TOOBIN: Absolutely; he's President of the United States. He has almost a year left in his term. There have been other people confirmed in the last year of a president's term. But, this seat is too important to the Republicans. There are four Democrats, four Republicans; this seat holds the balance. They're willing to take some political heat to keep a Democrat out of that seat.
LEMON: Brian, I want to play a little bit of the remarks Judge Garland made after he was nominated. Listen to this.
(BEGIN VIDEO CLIP)
JUDGE MERRICK GARLAND, CHIEF JUDGE, U.S. COURT OF APPEALS FOR D.C.: This is the greatest honor of my life, other than Lynn agreeing to marry me 28 years ago. It's also the greatest gift I've ever received, except -- and there's another caveat -- the birth of our daughters Jessie and Becky. As my
parents taught me, by both words and deeds, a life of public service is as much a gift to the person who serves as it is to those he is serving. And for me there could be no higher public service than serving as a member of the United States Supreme Court.
(END VIDEO CLIP)
LEMON: Brian, he's a smart man. He knows he's caught between a rock and a hard place. Why would someone of his stature and reputation agree to be nominated, knowing -- given the circumstances?
BRIAN GARNER, COAUTHOR WITH ANTONIN SCALIA, "MAKING YOUR CASE", via satellite: Well, he is 63 years old. This may well be his last time for serious consideration. He is universally admired. He is an excellent writer, with solid reasoning and occasionally inspired prose. And because he [23:05:02] is so admired, I think it makes the Republican position somewhat more difficult; but it is a political problem that the republicans have, not a legal one. The Constitution says nothing about timing.
LEMON: Alan, doesn't that sound like the kind of person who should be on the Supreme Court?
ALAN DERSHOWITZ, ATTORNEY & AUTHOR, "TAKING THE STAND, MY LIFE IN THE LAW", via satellite: Absolutely; and I want to use your show to throw out a challenge to my former student, Ted Cruz. He claims to be the constitutional candidate. I want to challenge him either to debate me on your show or just to come on your show and explain how much he, as a constitutional scholar, can justify the Senate not performing its constitutional duty.
The Constitution provides that the president shall nominate, and with the advice and consent of the senate; and, clearly, when you go back to the founding generation, contemplates that the senate has an obligation to either consent or refuse to consent. So I want to hear from Ted Cruz, who has argued in front of Judge Garland, who cannot look me in the eye and tell me he's not one of the most qualified people ever to be nominated to the Supreme Court, explain why he is not going to perform his constitutional duty, as the constitutional candidate, and vote this nomination up and down.
What he's going to say is, look, the democrats have done the same thing, and they have. A plague on both their houses. They're wrong. President Obama was wrong. Vice President Biden was wrong. It's time for the people to reclaim the Constitution and to say this does not belong to the Democrats or the Republicans. You both politicized the judiciary. It's time to depoliticize the judiciary and act on this superb nomination.
LEMON: And if he accepts that challenge, we know this show is a place where that should play out.
LEMON: Jeffrey Toobin, go ahead; I know you want to --
TOOBIN: I just think that - I mean, Alan is right about what the constitution says, but it also recognizes this is a political process. The check for the senate not confirming someone is for Democrats to use their failure to act as a political cudgel against the Republicans.
TOOBIN: So I'm not sure it's really a question of the constitution. I think it's a question about political power, which the Republicans have in the Senate.
LEMON: But aren't they playing with fire, Jeffrey -
DERSHOWITZ: Well it's not a question --
LEMON: -- because what happens if Hillary Clinton does win the election? They could get someone who is way more liberal and -
TOOBIN: And two decades younger; but they're taking the chance that, you know, that maybe a Republican will win this presidential election and they'd prefer that possibility to -
LEMON: Go on; is that Alan or Brian?
DERSHOWITZ: Jeffrey, where I disagree with you is, I do think it's a constitutional issue. It's not enforceable constitutional issue, except through politics that is; nobody can bring a lawsuit making the senate act; but I think that you can use, as a political issue, the fact that constitutionalists like Cruz and others who claim to love the constitution, are violating, if not the letter, certainly the spirit of the constitution. That's a fair political issue to make, and to make it in constitutional terms, not in political terms. LEMON: Brian, if Merrick Garland were confirmed which way would he move?
GARNER: Oh, there's no doubt he would move it to the left of - in replacing Justice Scalia. He's a very strong judge, but he is moderate. He would - he's a textualist. Today he sounded like a textualist. He sounded, from the steps of the White House, somewhat like Justice Scalia. He believes in interpreting the law and he doesn't believe in making the law, as a judge. Those are all good things; but he's a pragmatist. It's no sleight of him, I think, to say that he would move the court to the left.
LEMON: Do you think that the Republicans would rather have a Trump nominee, Brian?
GARNER: I don't know. It's a big -- if you're talking about the Republicans, well, the Republicans who have been voting for Donald Trump, absolutely; but the Republican establishment, I think they have a big quandary. I think what's likely to happen, if Hillary Clinton were to win, would be that Judge Garland would be given hearings and approved before the Inaugural.
TOOBIN: I don't think -- I don't agree with Brian about that. I think -- there really isn't enough time between November and January to do such a controversial act. The Republicans are so opposed to President Obama --
LEMON: Especially when they said it shouldn't happen, --
LEMON: -- the next president should pick the person -
LEMON: -- and then all of a sudden you reverse course.
DERSHOWITZ: I don't know. I don't know. I think it would be very smart of the republicans to say a 62 or 63-year-old moderate, now, instead of Hillary Clinton appointing somebody to the left of that, because I think he's going to be much like Justice Kennedy. I think he's going to be a swing vote. I don't think he's an ideologue. He's been very, very tough on crime and law enforcement, really to the right on those issues. So I think the Republicans are getting a bargain here and they ought to grab it as quick as they can, and confirm this nomination. They're not going to do it, but that's what they ought to do.
LEMON: Brian, you spoke to Justice Scalia ten days, just ten days before he died and he talked to you about how political judicial appointments have become. What did he say to you?
[23:10:04] GARNER: Well, I wouldn't purport to speak for Justice Scalia in our private conversation, but he said publicly, when we were on the dais together in Hong Kong, that he very much regretted the politicization of judicial appointments; and to a great degree that has resulted from judges injecting themselves more into political questions and becoming more political them services. Once judges do that, and start making laws as opposed to interpreting the law, then it becomes a very political process. Judges are essentially discovering new rights and amending the Constitution them services every couple of years. Then it becomes extremely political.
DERSHOWITZ: You sound like you're talking about Justice Scalia. He invented a right to private ownership of guns. He invented a right to have chads counted equally under the Equal Protection Clause. He invented rights to strike down Obamacare. I mean, Justice Scalia, who I liked very much, was one of the most activist judges. He said he believed in a dead constitution, but he not only believed in a living constitution but it had to live in his direction.
So I think both the right and the left, on the court, have created this problem. Remember, Justice Scalia was almost unanimously approved, or almost unanimously approved. It was the next appointment, the Bork appointment, which created this controversy, because Bork was very much a judicial activist on the right.
LEMON: Go ahead, Brian.
GARNER: Alan, you're playing with words. You really are; you're making black appear white, I'm afraid.
DERSHOWITZ: Why? Heller is not creating a new right? How can you say -
GARNER: No, I mean -
DERSHOWITZ: -- it's not creating a new right? For 150 years -
GARNER: The Second Amendment is right there.
DERSHOWITZ: -- everybody said the Second Amendment -- but every interpreted it for 150 years as not having a personal right.
GARNER: No; my own personal belief is that the Second Amendment was a mistake, but Justice Scalia simply interpreted it according to the best indications of original meaning.
LEMON: And, Jeffrey Toobin, I have to say, you wrote the book on the Court, called "The Nine", and you don't have a very good poker face. What are you thinking as --
TOOBIN: I'm just thinking that, you know, interpreting the Constitution has always been a political act. We always want judges to be somehow divorced from politics, but my view is that deciding does the Constitution protect a woman's right to choose abortion, may a university consider race in admissions, those are political issues as much as they are legal issues.
LEMON: I knew you wanted to jump in on this, that's why I said that. Brian Garner, thank you very much. When we come right back, the "trial of the century" returns as a TV
miniseries, "The People v. O.J. Simpson". Alan, you were on the defense team and Jeff you wrote the book. Let's talk about it, next.
[23:16:14] LEMON: O.J. Simpson's murder trial was dubbed "the trial of the century" and Americans are reliving it in this miniseries that's out: "The People v. O.J. Simpson" American Crime Story. Back with me now, Alan Dershowitz, who was part of the O.J. Simpson defense team; and, Jeffrey Toobin. The miniseries is based on his book about the trial: "The Run of His Life, The People v. O.J. Simpson."
I am obsessed. Jeffrey knows I'm obsessed because I called him and he sent me the link, or he got FX to send me the link, so I get to watch the episodes in advance, but I didn't see last night because I was traveling. So, Jeffrey, when you look at this, right, and everyone's obsessed with it. Everywhere I go people are talking about it. You're watching this and you see the police, you see the treatment of African-American men, you see what happened with the jury and many say it was a manipulation of the African-American and the jury. Are you surprised now that, in particular, this still has ramifications to this day?
TOOBIN: Well it is kind of remarkable for events 21 years ago, a book I wrote 20 years ago, has such contemporary relevance. For this series to come out in the wake of Ferguson, and all those other cases, about the relationships between African-Americans and the police, makes it feel very topical but it's also one of the great American stories: the drama; the characters; the setting; the celebrities; all of which make it incredibly compelling television.
LEMON: Yes; when you are looking at this many people are saying, wait, he had a glove on under the glove? I'm like, yes.
TOOBIN: Yes, he did.
DERSHOWITZ: I was there when that happened. I was there when it happened. I was there when he took the glove off, took the latex glove off. In the room afterward, it was the dumbest thing any prosecutor had ever done, because he could have gotten O.J. Simpson to try on the glove outside the presence of the jury first to see if it fit. But Darden was so arrogant that he didn't take advantage of that aspect of California law and he had him try it on.
He was two feet away from me when he did it and that solved another problem for us, because he walked up to the jury and basically said it's too small. At that point we didn't have to put him on the witness stand and have him subject to cross-examination. So it was one of the great blunders.
The other blunder, which I don't think is covered on this TV show, is that Officer Van Adder almost certainly poured blood of O.J. and one of the victims on a sock that was found in front of O.J.'s bed. The sock had on it EDTA, which is not found in the body. It's an anti- coagulant, and the mirror images on all four sides of the sock proved, to the jury's satisfaction at least, that the blood had been poured while the sock was laying flat and not while it was being worn.
And jurors after were interviewed and basically said, look, if we thought one piece of evidence was tampered with by the police, how can we say the trust the other evidence?
LEMON: Everyone wonders how could they lose with DNA evidence, and you just explained one reason that that happened. So, I want to play a clip from the show featuring you, Alan, along with the rest of the defense team.
(BEGIN VIDEO CLIP)
EVAN HANDLER PORTRAYING ALAN DERSHOWITZ: The first week culminates with Simpson trying to make a run for it, while under your supervision.
JOHN TRAVOLTA PORTRAYING ROBERT SHAPIRO: Careful.
HANDLER: Leaving behind a letter that sounds like an admission of guilt, that you guys, for some mystifying reason read aloud on television.
UNIDENTIIFED MALE: Bob thought it was a good idea.
TRAVOLTA: Why did you say that? You don't know what it was like that day. You weren't there.
HANDLER: Of course, and I'm here to help; not to judge.
TRAVOLTA: Oh, you are here to judge. What was that? What was all that?
HANDLER: You have to move fast. Your client, his goodwill, all his popularity and accomplishments, it's a depreciating asset.
TRAVOLTA: What do you mean?
HANDLER: Right now he's sort of like this handsome, gifted, Greek god laid low. it's a tragedy, but he's still a Greek god. The longer here sits in [23:20:02] that cell, the more the public sees him in a jumpsuit and cuffs, the more mortal he becomes. That's the clock we're fighting
DAVID SCHWIMMER PORTRAYING ROBERT KARDASHIAN: Excuse me, he's never going being "The Juice."
(END VIDEO CLIP)
LEMON: Is there a show on right now?
TOOBIN: By the way, can we just say that's Evan Handler, the wonderful actor who plays Alan.
LEMON: Alan, what do you think of that guy? DERSHOWITZ: I like Evan Handler; he's terrific. I'm a little stereotyped. I think they have me eating a bagel every time I'm on television.
LEMON: I'm glad you said it.
DERSHOWITZ: That scene
LEMON: How realistic is it though.
DERSHOWITZ: That scene never took place. I never had that conversation. That wasn't my point of view. My job was basically to find what appellate issues would be on appeal, number one, to strategize to make sure that we didn't put on an affirmative case that was not credible and to focus on the evidence. I was the one who found the sock and obsessed about the sock and focused on the sock but I would never have said anything like that.
He's a Greek god? That was not my approach or my role in the case but it makes good fiction.
TOOBIN: And -- but I think that the point that the defense made, and whether it was Alan who said that at that meeting, the first point to make was this was not a documentary, this is a dramatization. No one claims that these words were said in just that way. But the defense did recognize that, unlike in most criminal cases where the defense always wants to delay, getting O.J. on trial while his image was still intact was helpful to the defense.
DERSHOWITZ: No, I agree; but have I have a question for Jeffrey.
TOOBIN: Yes, sir.
DERSHOWITZ: I want to know how you found out, or how the TV program found out, that there was a lie detector test that he failed, when the only four people in the universe were knew it were his two lawyers, Bob Shapiro and Bob Kardashian, the lie detector tester and O.J. Simpson? How does that fact come out without somebody having behaved unethically?
TOOBIN: It was in my book. I mean, that was definitely in the book.
DERSHOWITZ: I know, but how did you -
TOOBIN: You know, Alan, I'm not going to give up my sources.
DERSHOWITZ: Of course not.
TOOBIN: But, you know, it was part of the story and it's something that I think people find very interesting, and it's certainly a dramatic scene in "American Crime Story."
DERSHOWITZ: Of course it's dramatic.
TOOBIN: I also think that part of being a journalist is you get people tell you things that sometimes they probably shouldn't.
DERSHOWITZ: But they shouldn't tell you things when it involves lawyer/client privilege communications, Jeffrey.
TOOBIN: It happens all the time.
DERSHOWITZ: I told you things, but I told you things that I wanted to tell you because they were in public or soon to be in public. But the idea of disclosing the fact that he failed a lie detector test, if, in fact, that's true, is such a core violation of lawyer/client privilege that I think the really interesting issue is to find out how that came out, or how does the TV show have conversations between Cochran, who's now dead, O.J. Simpson, who is now in prison. Just the two of them in jail, --
TOOBIN: Johnnie Cochran -
DERSHOWITZ: -- how do we know that?
TOOBIN: Johnnie Cochran wrote a whole book about --
DERSHOWITZ: I know, but that wasn't in it.
TOOBIN: -- about his representation. Shapiro wrote a book. You wrote a book. I wrote a book.
DERSHOWITZ: I did too.
TOOBIN: I mean, there's a lot of - there are a lot of books about this case. It's not that hard to triangulate -
LEMON: I have to say that by you taking such issue with it, you're confirming with it because most people would say it could be editorial license.
DERSHOWITZ: I don't even know whether it happened. This is the first I ever heard of that was in the TV show and in Jeffrey's book.
LEMON: I had heard of that before, and I don't know if it's --
TOOBIN: It's in my book 20 years ago.
DERSHOWITZ: No, I remember; and your book had a lot of inside sources, a lot of inside information.
LEMON: Jeffrey, there's something new in this series that you didn't have at the time of the book, and that the info -- it's information on what was inside of the Bronco. explain that.
TOOBIN: Right; well, that's actually, -- which was fascinating to me because I didn't -- under the California Freedom of Information Law, eventually 911 tapes are released. And after I published my book, but before "American Crime Story" came out, the 911 tapes were released. So you had this window into what was going on between A.C. Cowling and O.J. It answers the question which a lot of people had. It's like, why didn't the cops just stop the car? The answer was, A.C. was telling them if you stop the car, O.J. is going to kill himself.
LEMON: Right. Right. So, Alan, so let's talk about these. Can we talk about these actors?
LEMON: I love the actor who is playing you.
DERSHOWITZ: Me too.
LEMON: I have to say some people disagree with me, I think John Travolta is brilliant. You cannot take your eyes off of Travolta. He is Robert Shapiro.
TOOBIN: You know, like most people of our generation, I grew up watching John Travolta but I'd never met him before. When I first went on the set, you know, it took very little time for me to say to myself, oh, that's what a movie star is like.
LEMON: He's a movie star.
TOOBIN: Yes, and you just can't take your eyes off him in real life or on camera and --
LEMON: Courtney Vance is very good. He is Johnnie Cochran.
TOOBIN: Courtney Vance -
DERSHOWITZ: But it's -
TOOBIN: I - I'm sorry, Alan; go ahead. I didn't mean to interrupt.
[23:25:02] DERSHOWITZ: Marcia Clark is fantastic. She - I really think she's Marcia Clark. Judge Ito, --
LEMON: Sarah Paulson.
DERSHOWITZ: -- the person who plays him is fantastic. I don't agree about Bob Shapiro. Bob Shapiro is a good lawyer, a serious lawyer. They make him out in a very different way in this, in a very negative way, I think. Also, I think Johnnie Cochran and O.J. Simpson were both a lot calmer in real life, talking to each other. The kind of shouting wasn't as apparent, but I guess you have to take liberties. Look, when they made a movie about me, "Reversal of Fortune," they had me throwing a telephone and breaking it on the floor. When I complained to my son, who was the producer of the movie, he said, look, we had to show passion and we had to do it in two seconds. So we had to show you throwing the phone on the floor. That is the kind of liberty you have to take in making a film like this.
LEMON: Alan, it's a movie; come on.
TOOBIN: The movie suggests we need an Alan Dershowitz film festival, like all the movies that feature Alan Dershowitz should be on - [Laughter]
DERSHOWITZ: -- and all the books written by Jeffrey Toobin in the last -- no time for anything else.
LEMON: Do you think this is going to change minds, when it comes to, you know, guilt or innocence? There are still people who very staunchly believe O.J. Simpson was framed and he is not guilty.
TOOBIN: One of the distinctions between the book and the series is that my book is very explicit about my belief that O.J. is guilty.
TOOBIN: The series takes not as direct a position. I think you can draw your own conclusions pretty obviously but that's different. One of the things I realized about the O.J. Simpson case also, long ago, is I don't try to convince anybody. It's like, if people believe like they believe in their religion.
LEMON: I always asked, what's the reason? Why frame O.J. Simpson, if there is a legitimate killer you can find?
TOOBIN: Ask a defense attorney that question.
DERSHOWITZ: Okay, but you said he was either framed or guilty; but, of course, theoretically it's possible that he was guilty and was framed -
DERSHOWITZ: -- that is, that he was guilty, at least the police absolutely believed he was guilty, but they thought he'd get away with it because he had good lawyers and because the glove might be suppressed. So they improved on a piece of evidence they found, framing somebody they believed was guilty. That is certainly a possibility. I'm not here to say he's guilt or not guilty, that's not the role of a defense lawyer; but, I'm here to say that theoretically, a person could be both guilty and framed and that's at least one possibility in this case.
LEMON: This gave me so much joy to do this.
TOOBIN: And you still have three more episodes, Tuesday nights at 10:00 on FX.
LEMON: I want more. Can you guys do episodes on the stealing of -
TOOBIN: I'm telling you, it's -
LEMON: -- on the stealing of his memorabilia?
TOOBIN: I have I never been involved in a project anything like this, where people are just so anxious. The crazy thing is, everyone knows how it ends.
LEMON: It's still amazing, amazing -- I'm telling you, it's great television. Congratulations to both of you.
TOOBIN: Thank you.
LEMON: It's great television.
TOOBIN: Thank you.
LEMON: All righty; so you know what I'm doing. Watching "The People v. O.J. Simpson." Up next, a TV host who thinks Hillary Clinton should smile more. Her supporters are not happy about that.
[23:31:58] LEMON: We have news tonight on the Donald Trump rally last week that saw a protester allegedly attacked by a 78-year-old Trump supporter. Not allegedly, we saw it, attacked by Trump supporter.
Five sheriff deputies were disciplined today for failing to immediately arrest the Trump supporter, John McGraw. He was eventually charged with assault, disorderly conduct and communicating threats. The sheriff's office had considered charging Trump with inciting a riot, but quickly decided against that.
Now, I want to turn to Hillary Clinton and those tweets from a male commentator suggesting that she should smile more.
A lot of women are angry about that tonight. So, let's discus with political strategist Margaret Hoover and Angela Rye Thank you for -- you both for joining me here tonight.
By all accounts of Hillary Clinton and her campaign had a huge day yesterday, but according to MSNBC's Joe Scarborough, she wasn't happy enough. He tweeted "Smile, you just had a big night." are you offended by that Margaret?
MARGARET HOOVER, CNN POLITICAL COMMENTATOR: You talking to me?
HOOVER: Are you talking to me? Look, I'm not offended by it. But here's what we all know about women in politics. There is a double standard. There's no getting around it. And that double standard can cut positively and negatively.
It cuts both ways. And the most successful women politicians, most successful females in public life and , frankly, for anybody to whom there is a double standard are able to capitalize on how it makes you -- how it's better and then try to help make us better when it's not. I made the same mistake. I will say. And I am a woman. And during the ...
LEMON: How so?
HOOVER: ... the Republican presidential debate at the Reagan campaign or during -- at Reagan Library when Carly Fiorina was on the stage taking it to Donald Trump, doing an incredible job of taking it to Donald Trump.
I remember saying, Carly Fiorina is having a great debate. And I tweeted, "I just wish she would smile more." And I got excoriated. I mean, lots reasons -- there's a lot of people saying, would you say the same thing about a man? And the truth is, it really caused me to take a step back and realized I wouldn't.
LEMON: I would though.
HOOVER: I mean, Donald trump should smile more? Does he ever smile enough? He should smile more. We don't say that about Donald Trump.
LEMON: OK. Angela, let me read this and then we can go on. Clinton supporters not pleased by a comedian. Kate Spencer shared a picture of herself when @JoeNBC tells us women to smile and comedian tweeted back this. She said, @Joe calling all ladies to hashtag smile for Joe. And they are -- right?
Angela, are you glad to see that women around the world responding in this way when you see all these women doing this?
ANGELA RYE, CNN POLITICAL STRATEGIST: Let me be honest with you. I think Joe definitely deserves to be trolled for all the times that so many of us are just walking down the street, minding our own business, concentrating on what we don't like about either the Trump campaign or President Obama's SCOTUS pick.
You have the right to have your concentration, face your mean mug face. You have the right to do whatever the hell you want to with your face. So, I really don't understand why this is a thing, particularly, when this country is dealing with such serious issues.
It is super annoying to me, the smile thing in particular, because I think, even when I'm listening to you Don, I have a stank face on, it's not intentional, it's my concentration face.
[23:35:03] So, it's really annoying when I get tweets from guys like, "Smile, baby."
LEMON: Is it your RBM which we won't ...
LEMON: You know what that means. I won't say resting you know what face. But let me ...
RYE: Yeah, I know what you're saying. I got you, Don. I'm going get you on Twitter after this.
LEMON: I have one, too, though. But listen ...
RYE: No, you don't.
RYE: Let me see it. LEMON: But people also talk about, seriously, Ted Cruz's face. They
compare him to one of the Addams with the grandpa, right? On the Addams family and that sort of thing. They compare the speaker of the house to Eddie Munster. And I hear people openly doing that. So, why is it different with women?
HOOVER: Because we know, you and I, we, all three of us know exactly why it's different with women. I mean ...
HOOVER: ... the double standard is that, you know, look, this is a -- we're on television, right? It's a cosmetic medium. People have various deicidal sense that it is softer on the eyes, it is more appealing to look at a woman who is happy, who is smiling, all these things that you wouldn't actually think of -- for a man.
I mean remember when Sarah Palin was John McCain's vice presidential nominee and a cover of Newsweek, they had her in a running outfit with her legs all over Newseek. Whether you like Sarah Palin or not, I mean, that was -- it's more dehumanizing, right? Because you're seeing her as for her body and not who she is and what's she contributing.
To Hillary Clinton, won, she has an extraordinary night. I mean, not all Republicans ...
LEMON: Didn't ladies have a good time with Paul Ryan and his workout pictures and who the shot in his ...
HOOVER: It's not the same.
LEMON: ... you know, abs or whatever. All right. OK. Let's -- I'm just playing devil's advocate here. Don't beat me up. But to your point, it wasn't just male pundents who were doing I had to say about that last that.
At least three criticized her for shouting, right? Brit Hume asked, what Hillary is -- what's Hillary mad at? Howard Kurt says, a more conversational tone would be better. And then Glen thrashed says that she is calling for love and kindness by shouting.
So, let's listen to Hillary Clinton last time and then we'll talk about it
(BEGIN VIDEO CLIP)
CLINTON: For all of our challenges, I've never had more faith in our future. And if we work together, if we go forward in this campaign, if we win in November, I know our future will be brighter tomorrow than yesterday.
(END VIDEO CLIP)
LEMON: Okay. So, should she not speak loudly at rallies? Do you think, Angela? RYE: Yeah. I think that's a tougher one. When you're in this -- that setting, like you could hear -- like the crowd is roaring so she has to speak over them. I understand what folks are saying.
I actually -- to Margaret's point, I've tweeted something and got hammered by Hill's folks for saying, I wish that she wasn't yelling, And the only reason why I say that is because, particularly, dealing with Hillary, she has this issue of coming across as defensive.
So, when she comes across as defensive, she looks like she's protecting something. When it looks like she's protecting something, she's guarded. If she's guarded, then it goes back to the whole trustworthiness thing.
HOOVER: But the ...
RYE: So, from a strategic standpoint, I don't love that. I understand it. But I get it.
LEMON: OK. Margaret, hold on. I want to play this, and then we'll talk. She defended herself last night. Listen.
(BEGIN VIDEO CLIP)
CLINTON: I'm always being told that when I talk to you, I should talk in a very calm and measured voice. And I should not get carried away with my intense feelings about what is going on in the country. So I do try to remind myself that. And try to lower the volume when I remember. But I am so worried about our country ...
(END VIDEO CLIP)
LEMON: So, that was on Sunday. But go ahead, Margaret.
HOOVER: I mean, that is an extraordinarily humanizing moment actually because it just demonstrates that like she does, she isn't arch and shrill all the time and as Republicans would like to paint her. And, yeah, it looks like first woman president. She's going to be placing a lot -- first female nominee probably of any major party.
LEMON: Stop yelling, ladies.
HOOVER: It is our tendency, right? Always -- much more with men than with women. Just to criticize their style over their substance.
LEMON: Yeah. That is true. That's absolute -- that is true. And women have to deal with people talking about their hair and their dress and their make-up, on and on and on. And we can wear the same suit and just a different tie and it's all fine, nobody cares. Five different ties, five new days of the week, same suit, nobody gives a ...
HOOVER: Not you, Don.
LEMON: Oh, of course not. I have to get my dress on. Thank you.
When we come right back, Hillary Clinton explaining her lead over Bernie Sanders, but is it too soon to count him out?
[23:43:35] LEMON: In the wake of her Super Tuesday victories, Hillary Clinton has nearly twice as many delegates as Bernie Sanders. Is it the beginning of the end for the senator from Vermont?
Joining me now, CNN contributor Bakari Sellers, Republican strategist Tara Setmayer and some other guy is here on set. Charles Blow is here, "New York Times" op-ed columnist and CNN contributor as well. Charles, I want to start with you. Does Bernie Sanders have a path to the nomination you think at this point?
CHARLES BLOW, CNN CONTRIBUTOR: Well, I mean what we have to wait to see is how he can do in the big states outstanding, right? So California is still a bit of an odd ball to me. It does have a large Hispanic population, which Hillary has done well with, at least in Florida. That's a different set of, Hispanics. People like the big Hispanics as being one group of people, it's not.
So Florida will be interesting. And what Nevada showed us is that Bernie was very competitive with kind Mexican immigrants. So if he could be competitive or not I don't know it does not have as large of a black population. So there are more Asians in California than black people and so that may you know how they will play out in California, I just don't know how that will play.
But if Bernie can make a stand in California and he can make a stand -- some sort of stand on the east coast in New York and Pennsylvania ...
LEMON: You see her, she's sitting there next to you going ...
BLOW: I'm trying to throw the man some ...
[23:45:01] TARA SETMAYER, CNN POLITICAL COMMENTATOR: I know, you're trying hard. No, he does not and but what he does bring to this election is he's forcing Hillary -- he's exposing Hillary for certain weaknesses within her own party, right?
So you see her polling more towards the left on certain issues, immigration being one of them we saw during Univision CNN debate how she took a really, really liberal position, open borders basically on immigration, which could come back to hurt her in the general election.
And so Bernie Sanders will stay in this as long as he has money. And he does have a movement -- a legitimate movement going on. The progressive movement that she need to -- she need those folks so she still want to come out and vote for her. Bur I think you're going to find something interesting with the Democrats. They keep talking about us, Republicans, and our convention is going to be crazy and how, you know, everything.
Look, I don't think a lot of the Bernie folks realize that it's rigged with super delegates for Hillary Clinton. When they find out ...
LEMON: But, Tara, rigged, that's a wrong word.
LEMON: Is there a path for Bernie Sanders? I mean honestly, a legitimate path at this point?
BAKARI SELLERS, CNN CONTRIBUTOR: No, I mean -- does he have a legitimate path? No. Is his path narrowing and nearly shut, the answer is probably yes. However, would never be one to push Bernie Sanders out of the race because I think his voice, his message is one that's very important and his group of voters need to be engaged and it's very important as well.
And the fact is simply this, I mean if Bernie Sanders is not in this race, if he is not exchanging ideas substantively with Hillary Clinton, then mainstream media, CNN included, and just going simply cover Donald Trump and the message and the voices of the Democratic Party will be hushed out for a few months.
But I do have to push back real quick about super delegates. Is super delegates or not some gimmick to rig the process and its stretch. In fact never in the history of the Democratic primary process have super delegates gone against the primary voters. Never, and if they were supposed to stop some insurgent candidate, they would have stopped that skinny guy with a funny name from Hawaii back in 2008 and they did not.
BLOW: But here is the thing about super delegates. I understand your point, Bakari. But here is the thing about super delegates that is true. They do tip the hat ...
BLOW: ... before any votes are cast. Right, so if they telegraph to the public this is who the establish wants. And that's up in tight.
LEMON: Put it up on the screen. The number of that ...
BLOW: And that has an impact.
LEMON: To Charles' point, when you see that Charles, right? Go on.
BLOW: Right, after seeing that they -- before they had any earned delegates, she had 400 plus super delegates. And that ...
BLOW: I'm saying that telegraphs to the general public that says you may disagree with us but we sage democratic operatives believe that this is the person that we would prefer.
LEMON: The proof is in the pudding and when you look at those numbers you say, my gosh, looks like Hillary Clinton has it clinched.
SELLERS: Listen I mean it sounds good in bury but let's just put -- let's just talk facts. In August of 2007, Hillary Clinton had 53 percent of the super delegates that have pledged their support to a particular candidate or another. And that didn't shake out at the end of the election season and the reason being is because Barack Obama started winning.
If Bernie Sanders wants to lost super delegates, one he has to stop saying that he simply ran as Democrat so that he could get media, but assume he has to start winning states that he's running in.
BLOW: But here's the fallacy of the argument, Bakari, it doesn't mean they get the fact that they keep their hand in at the beginning. They were just wrong about what the democratic base wanted.
SELLERS: I can give you that. I can give you that.
BLOW: All I'm saying is that fact that they do it in beginning. This means that they tips their hands and this what we would like. And then in the basis that's what we would like and they go otherwise and they are kind of obliged to navigate.
LEMON: I also want to talk about that but Hillary Clinton had the opportunity to go after those super delegates before Bernie Sanders even realize he was going to run for president.
SETMAYER: That's right.
LEMON: So there is an advantage there. We'll talk about that and more coming up. Everybody stay with me.
If this race does come down to Donald Trump versus Hillary Clinton, will black voters be the key to this election?
[23:52:52] LEMON: All right, I'm back now with my panel. So, Bakari, is the playing field really level? Because if Hillary Clinton has run for president before, knows he may run again, she has a chance to work on those super delegates sometimes years before someone like a Bernie Sanders even has an idea he's going to run for president?
SELLERS: I mean, I just don't -- I don't understand the push back on saying that somehow this is a rigged process. I mean, the rules were established before the game began. This is not something or somehow that the rules just came to fruition halfway through the race.
In the fact that the matter is and I'll say it again, I men if the rules were rigged, if this game was somehow rigged by the DNC or anybody else, you would not have a president named Barack Hussein Obama. Bernie Sanders if he wants to woe super delegates needs to embrace the Democratic Party. And he's shunned that so far but if he embraces the Democratic Party and moves forward in win states like California, in Washington, New York, Pennsylvania and Maryland that maybe very difficult to do then super delegates have every right to change their mind and good luck to him.
LEMON: OK. Now, let's talk about, let's move on and talk about black voters. Hillary Clinton has a dominance when it comes to black voters in this campaign. Is it too late for Bernie Sanders to catch up on that, you think?
SETMAYER: I mean Charles and I were talking about this before. Where? You know the states where that could have happened have already passed. You know, the south, we've already voted. You know, Illinois, Chicago, Michigan, Detroit. Like those -- the opportunity for getting a large black vote for Bernie Sanders moving forward, I don't really see where the opportunity is for that.
But is interesting to see that, you know, Bernie Sanders after the black lives matter protesters ambushed his campaign, he realized, oh, wait a minute, I actually need to pay attention to these issues and he pivoted, and he saw that he got black folks on his campaign, he is a black surrogate in different places.
LEMON: Hillary Clinton did as well. I mean she's already have
SETMAYER: She's already established there with that but for Bernie Sanders he needed to do and what else he did to attract more black voters was talk about crime reform and, you know, criminal justice reform in things like that.
LEMON: I want to get this in because people are saying now Hillary Clinton is stealing his message.
[23:55:01] SNL did as much. Listen.
(BEGIN VIDEO CLIP)
CLINTON: You're fired up, you're angry. And I'm angry, too, because the top 10 percent of the top 10 percent of the top 1 percent control 90 percent of the wealth in this country. And I've always said that. So, thank you Millennials for lending your support to the biggest outsider Jew in the race, Hillary Rodham Clinton. There's a lot of work to be done and that's why I am sick and tired of hearing about my own damn e-mails.
(END VIDEO CLIP)
LEMON: Has she caught to this message, Bakari?
SETMAYER: It was brilliant and true.
SELLERS: No, I thought it was funny. But look, I think it does highlight something very important, very essential.
LEMON: I got 20 seconds for you.
SELLERS: I don't -- I think that without Bernie Sanders, the Democratic Party may have missed that vein of energy that's alive and well in our progressive wing of the Democratic Party.
I'm very happy he ran, I'm very happy he's pushing those issues and we're having a substantive debate where Tara and some of the people on the other side, I'm not sure what they were talking about over there.
SETMAYER: Don't blame me. Don't blame me for Trump.
LEMON: All righty, that'll be the last word on that. That was brilliant though SNL, very funny. Thank you everyone. We'll be right back
LEMON: Thanks for watching. That's it for us tonight. I'll see your right back here tomorrow night. "AC 360" starts right now.