Iran, terrorism overshadow President Obama's pivot to domestic policies

Written by Shannon Bream / Published January 18, 2015 / Fox News Sunday

Special Guests: Sen. Ron Johnson, Sen. Ben Cardin, Ted Olson, Tony Perkins, Tom Davis and Martin Frost

This is a rush transcript from "Fox News Sunday," January 18, 2015. This copy may not be in its final form and may be updated.

SHANNON BREAM, FOX NEWS ANCHOR: I'm Shannon Bream, in for Chris Wallace.

President Obama pushes his domestic agenda ahead of Tuesday's State of the Union Address. But what's (ph) abroad continues to mount. And the president draws a line in the sand over Iran.

(BEGIN VIDEOTAPE)

BARACK OBAMA, PRESIDENT OF THE UNITED STATES: We have a chance to resolve the nuclear issue peacefully. My main message to Congress is -- just hold your fire.

BREAM: We'll discuss the latest standoff between the White House and Congress with two leading senators. Ron Johnson, chair of the Homeland Security Committee, and Ben Cardin, a member of the Foreign Relations Committee.

Then, the Supreme Court takes up same-sex marriage.

PROTESTERS: Right here! Right here! Right now! Right now!

BREAM: We debate the hot button issue with two leading advocates. Ted Olson who won Bush versus Gore and the case to overturn California's ban on same sex marriage, and Tony Perkins, president of the Family Research Council.

Plus, Mitt Romney and Jeb Bush steal the 2016 spotlight.

Our Sunday panel weighs in on how two of the GOP's biggest names could shake up the race for the White House.

All, right now, on "Fox News Sunday."

(END VIDEOTAPE)

BREAM: And hello again from Fox News in Washington.

President Obama prepares to deliver his seventh State of the Union Address this week, his first before a Republican led Congress. After hitting the campaign trail to push a reboot of his domestic agenda, unveiling proposals to fight cybercrime, help people go to college and give workers extended paid family leave. But last week's terror attacks in France and president's sharp censure of Congress over new sanctions against Iran have casted a shadow of the president's efforts to pivot to his domestic policy.

Joining us now to discuss Iran, the rising threat of Islamic terror and the president's handling of all these issues: from Wisconsin, Senator Ron Johnson, chairman of the Homeland Security Committee, and from Maryland, Senator Ben Cardin, a member of the Foreign Relations Committee.

Gentlemen, welcome to you both.

SEN. BEN CARDIN (D-MD), FOREIGN RELATIONS COMMITTEE: Thank you.

SEN. RON JOHNSON (R-WI), CHAIRMAN, HOMELAND SECURITY COMMITTEE: Good morning, Shannon.

BREAM: All right. Mr. Chairman, I'll start with you. What is your take right now? Do you believe there are lone wolves or sleeper cells here in the U.S. motivated by radical ideology that are either capable of and/or planning attacks on the U.S. homeland?

JOHNSON: I'm not aware of any specific cells, any sleeper cells, but when you see what's happening in Europe and you see how widespread that is from France to Belgium to Germany. I think you have to assume that is certainly a risk that we do have to consider and we have to do everything we can to make sure our intelligence agencies are working cooperatively with other foreign intelligence agencies and our agencies here in America are also fully communicating so we don't have a stovepipes which really with 9/11 a dozen (ph) years ago.

BREAM: And, Senator Cardin, of course, one of the main concerns have been that there are those who travel on Western passports freely in and out of areas that have been known to host terror training camps and places where that ideology is growing, what can we do about that potential loophole?

CARDIN: Well, as we saw in France, I think we have to be very concerned about foreign fighters who hold Western passports, that have been to Syria, who have fought with ISIL and are now in Europe and could travel to the United States without a visa and in some cases these are Americans who we know have been associated with these extreme groups.

It's really important that our intelligence community concentrate on those who are at the highest risk to the United States. We have to share that information between our European partners in the United States and so we know exactly where these individuals are and we can be on the highest alert.

BREAM: All right. Senator Johnson, your colleague mentioned Syria. Of course, that's an issue of growing concern. I want to put up a map showing what appears to be almost a doubling of the territory controlled by ISIS and that essentially began, airstrikes with coalition forces in that area. We also have the complication of Bashar al Assad still operating in that area and there are many reports that his forces and those loyal to him are actually fighting against the forces that we're counting on to fight against ISIS.

What does this administration need to do with regard to Syria?

JOHNSON: Well, what we need to do is we need to accomplish the goal that President Obama stated -- degrade and ultimately defeat ISIS, and the sooner the better.

The problem is we're not seeing the kind of leadership out of President Obama to accomplish that goal. You know, we had a mini- debate on authorization of use of military force. The chief -- you know, the commander-in-chief wouldn't bring forward the language in terms of the authorization he needed.

We need to define what he means by defeat. He needs to define a strategy for actually accomplishing that goal. And he's got to come to Congress asking for the authority to accomplish that -- you know, to employ that strategy and accomplish that goal.

BREAM: Yes, and Senator Cardin, to that point, we know the Defense Department is reporting there could be 1,000 or more U.S. trainers that are going to head overseas to that region and going to be there to train Syrian opposition forces. We already have 2,000 personnel, U.S. personnel on the ground in Iraq. We're told that number could go as high as 3,400 later this year.

All along, though, the administration has said no boots on the ground -- a very specific, you know, language that they have been using there.

I want to play a little bit of what Secretary of State John Kerry said when he was testifying before you at the Senate Foreign Relations Committee last December.

(BEGIN VIDEO CLIP)

JOHN KERRY, SECRETARY OF STATE: The president has been crystal clear that his policy is that U.S. military forces will not be deployed to conduct ground combat against ISIS.

(END VIDEO CLIP)

BREAM: OK. So, a strategy, troops in, troops out. Senator Cardin, at what point do you think the president has an obligation to come to you for that authorization for use of military force with regard to ISIS?

CARDIN: No, I think he should come to us for the use of force and I've been pretty vocal about the fact that Congress has a responsibility to clarify exactly what the president's authority is.

But I want to disagree with Senator Johnson on regards to the president's strategy. I think the president is right. This is a complicated situation. In Iraq, we think a stable government that includes moderate Sunnis is critically important to cut off the support for ISIL. So, we're working on that.

We do have greater ground capacity in Iraq to deal with the growth of ISIL than we do in Syria. In Syria, we're doing a training mission and we started that training mission. We're giving air support. But I agree with the president, I don't want to see us involved in a protracted ground campaign where we saw in Iraq that was ineffective as far as the ultimate security of that country. I think it's important that ground support to be done by those in the countries themselves.

BREAM: All right. So, Senator Johnson, I know you voted against in committee last year that discussion about authorization. What was wrong with it for you and what specifics do you need see for the administration, from them, so that you can move forward with this conversation?

JOHNSON: Well, the authorization that was voted on was very limited. And, you know, I'm not going to vote for an authorization for use of military force and put the finest among us at risk unless the commander-in-chief is fully committed to success of the goal. You just don't do that.

And, Shannon, here's the problems. As long as ISIS is not losing, they are perceived as winning and if they are perceived as winning, they are extremely good at recruiting off the Internet, using social media. They're going to continue to inspire the types of attacks we've seen carried out in Paris, in Ottawa, in Sydney, Fort Hood, Texas.

This is not a threat that's going away. It's not receding. It's growing. It's metastasizing. So, a key point of trying to protect America, to keep America safe and secure is we have to defeat ISIS. We can't let them continue threatening the rest of the world for years.

BREAM: And speaking of what inspires these groups, the administration said this week, again, that Guantanamo Bay has been an inspiration for terror groups. So, Senator Cardin, I want to pivot to that question.

Five more releases this week. These were men from Yemen who have all kinds of accusations against them. They are being released to areas like Oman, which, of course, shares a border with Yemen. We're told that the Kouachi brothers in Paris had traveled in that area, possibly gotten training, terror training in Yemen and then, of course, returned home.

So, is this the time right now to be releasing detainees like the ones we saw released just days ago?

CARDIN: It may not be the time to release these detainees, but it's certainly past time to close Guantanamo Bay. The cost to the American taxpayers, those funds can be put to much better use in protecting the security of our country.

It's millions of dollars per inmate that we're spending to maintain Guantanamo Bay, where we could, if Congress would permit, transfer some to the United States. We know how to keep them safe from the public. Or we could bring them to justice or we could transfer them to other countries where they could handle them. But to continue Guantanamo Bay is not only expensive but it's also an iconic symbol to the world of a past that we want to move away from.

One last point if I might on the use of force. The president's operating on the use of force against ISIL based upon 2000 and 2001 authorizations from Congress. Circumstances have changed dramatically since those days. It's critically important that Congress exercise its responsibility and pass an authorization for the use of military force for the president.

BREAM: And what I continue to hear from folks on both side of the aisle on the Hill is that they need to hear from the administration, those specifics. So, we'll watch to see if that is coming in the days and weeks ahead as both sides are asking for it now.

I want to play a bite from Josh Earnest this week talking about Guantanamo Bay and, Senator Johnson, then give you a chance to respond. Here's what he said.

(BEGIN VIDEO CLIP)

JOSH EARNEST, WHITE HOUSE SPOKESMAN: The prison at Guantanamo Bay continues to inspire violent acts around the globe. So, it's not as if we can avoid violence by just keeping the prison open and keeping them all locked up.

(END VIDEO CLIP)

BREAM: All right. So, Senator Johnson, Senator Cardin says we know how to handle these people here. You can transfer them to U.S. prisons.

So far, Congress in a bipartisan way has done a good job of blocking the administration from doing that. So, what do you do with these people?

JOHNSON: Well, the people at Guantanamo Bay are evil people and they will, many of them will return to battle. One of the first lines of defense, one of the most important things we have to do is we have to an effective intelligence gathering capability. And one of the ways you do that is you capture these unlawful combatants and you detain them and over a long period of time you interrogate them. That's how you really develop the intelligence to try to foil future plots.

And the fact that we're going to try to close Guantanamo, the fact that we don't have any place to put terrorists we capture is really degrading our ability to gather that type of intelligence to keep America safe and secure. So, this is no time to be transferring these individuals that are all high-risk now. That's what's left. We've released literally hundreds of prisoners from Guantanamo. The people there are the worst of the worst and they should not be released.

BREAM: OK, another area of contention between the Hill and the White House are the ongoing negotiations with Iran over its nuclear program. It's something that we've heard a lot.

Both of you signed, Senators Johnson and Cardin, have signed on at various points to legislation that would enact tougher sanctions if this deal doesn't work out. Well, the president this week is basically saying, stay in your lane, hold your fire for this particular issue and saying that you're going to be responsible if things go south with this deal, because of the provocation regarding sanctions.

Here's what he said on Friday. (BEGIN VIDEO CLIP)

BARACK OBAMA, PRESIDENT OF THE UNITED STATES: Well, I've consistently said we leave all options on the table. But Congress should be aware if this diplomatic solution fails, then the risks and likelihood that this ends up being at some point a military confrontation is heightened. And Congress will have to own that as well.

(END VIDEO CLIP)

BREAM: Senator Cardin, is that a fair assessment? Are you willing to take that risk?

CARDIN: Well, I think there's no disagreement between the overwhelming majority in Congress and the president that if Iran does not agree to give up its nuclear weapons, we are not only re-impose the relief that they have received, but there'd be much tougher sanctions imposed, and we certainly want to work with our coalition partners to make sure that these sanctions are enforced internationally.

So, I think the only issue now is the timing. We hope that negotiations will go satisfactorily and Iran will not become a nuclear weapons state. But if they move in that direction, we're going to pass tougher sanctions. The question is when do we do it and that's the issue and discussions taking place on Capitol Hill.

BREAM: Senator Johnson, quickly, a final word to you here. The president has said that he's going to veto it. So, can you overcome that?

JOHNSON: First of all, I have no faith this administration, this president has the negotiating capacity, the ability to do a good deal with Iran. I mean, I think these negotiations were lost right from the get go when we lessened sanctions and we basically allowed Iran to continue to enrich uranium, contrary to all the U.N. resolutions.

So, I do not see a good deal coming out of this administration and a bad deal is worse than no deal at all. I think imposing additional sanctions is the only way to bring Iran to the negotiating table in good faith.

BREAM: Senator Johnson, Senator Cardin, thank you both for joining us today.

CARDIN: Thank you.

JOHNSON: Have a good day.

BREAM: You as well.

Up next, does releasing detainees from Guantanamo Bay make us safer? Our Sunday debates the push to close that detention facility.

Plus, what would you like to ask the panel about Gitmo? Just go to our Facebook or Twitter @FoxNewsSunday. We may use your question on the air.

(COMMERCIAL BREAK)

(BEGIN VIDEO CLIP)

EARNEST: There is a unanimous recommendation from his national security team that steps can be put in place to ensure that when these individuals are transferred, that we can significantly mitigate any threat they have to the U.S. or our interests around the world.

SEN. LINDSEY GRAHAM (R-SC), ARMED SERVICES COMMITTEE: The only reason most of these people have not planned another 9/11 at Guantanamo Bay is because they have been in jail. If you let them out of jail, they're going to be on the ground planning another 9/11.

(END VIDEO CLIP)

BREAM: White House spokesman Josh Earnest and Republican Senator Lindsey Graham clashing over the potential threat posed by prisoners released from the prison at Guantanamo Bay.

Time now for our Sunday group: syndicated columnist George Will, former Democratic Senator Evan Bayh, Kimberley Strassel from "The Wall Street Journal", and FOX News political analyst Juan Williams.

Welcome to you all.

Before we get into the discussion on Guantanamo Bay, I want to show you a couple of polls how Americans are feeling about this. Should it be open, should it be closed? Fifty-six percent say keep it open, 32 percent say close it. And when we talk about the president transferring out detainees, the question whether he's exceeding his authority doing that, 54 percent say yes, 37 percent say no.

George, what does that say to you about the administration's move from here?

GEORGE WILL, SYNDICATED COLUMNIST: Well, the administration has an uphill climb to convince the public and what happened in Paris didn't help the atmosphere of all this.

But the administration's two arguments are passing strange. One is that it's expensive. Whatever it costs the rounding error on the G.M. bailout, it's nothing in terms of the federal budget.

And then there's the idea that Gitmo is a recruiting tool for terrorists. As I recall the USS Cole was attacked before Gitmo was opened. The World Trade Center attacked twice before Gitmo was opened. There's no empirical evidence let a lot plausible assumption that says people are becoming terrorists because of Gitmo.

BREAM: We asked viewers what they wanted to ask you the panel about this. And so, this is what we got from social media. Two related questions on Facebook. Kelly Bailey wrote, "Why on Earth can't Congress step in and put an end to this president overstepping his bounds? The American people do not trust Washington, D.C. at all. Does anybody want to make a bet at the end of his presidency, he pardons each and every prisoner there?"

And on Twitter from Naomi M, we got, "Is there any way to stop Obama from releasing these terrorists? He has no regard for public opinion or Congress."

Senator Bayh, you've been in the middle of these tug-of-wars before. We're going to have a group of GOP senators introduce legislation this week attempting to block releases from Gitmo. Do they get anywhere with that?

EVAN BAYH, FORMER U.S. SENATOR (D-IN): They may get somewhere, Shannon, they might even get a majority. Whether they'll get enough to break a filibuster in the Senate, which tends to block everything, is another question.

My question is the president will keep enough Democrats in line to prevent that. Or if it passes, he'll have enough to sustain a veto.

So, I think the real question here is, this is a well-intended debate but I tend to side with George. The root causes of alienation that lead to terrorism in the Middle East are economic, political, much deeper. Gitmo tends to be a symbol. And I don't think really will have much impact. It's hard for me to believe that ISIS or al Qaeda or their recruits will think, we'll lay off on the Americans simply because they are closing Guantanamo Bay. They'll just simply find another excuse.

BREAM: And we talked with our first two guest, Senators Johnson and Cardin about the growing threat in Syria and how that continues to bubble up as a player as folks are training there, folks are traveling there, returning to their countries.

Kimberley, how do you think that impacts our conversation about maybe missed opportunities for this administration in Syria?

KIMBERLEY STRASSEL, THE WALL STREET JOURNAL: Well, it's remarkable that they are doing this at the time they have. Remember the history here. The president campaigned, "I'm closing this." In 2009, Congress said no and barred him from moving prisoners to the United States and trying them here. It smoldered since then. They picked up the pace at exactly this moment where we have this enormous question about all these people using Syria and Afghanistan and Iraq as a terrorist sanctuary.

And we know from the director of national intelligence that 30 percent, and that's probably a low ball number of those we have released from Gitmo, have gone back to violence. So, there's no question about what's happening and the idea that we're actually going to actively feed this group of people to go out and cause more chaos is remarkable.

BREAM: Yes. And the administration took issue with those numbers this week. But whether as Ed Henry it's 8 percent or 9 percent recidivism or 30 --

STRASSEL: Even one person.

BREAM: It only took two guys in Paris --

STRASSEL: Right.

BREAM: -- at "Charlie Hebdo" to do what they did there.

Juan, I want to put up another poll and get your chance to react. We asked, is Obama prepared to do whatever it takes to defeat Islamic extremist? Yes, he is, 38 percent, 55 percent say no.

He's losing the public relations battle on this.

JUAN WILLIAMS, FOX NEWS POLITICAL ANALYST: I think that clearly, you have people who say and I think this is historically the case, that Democrats are sort of a mama party, Shannon, and the Republicans are the daddy party, and Republicans are the one who will get out there, Dick Cheney and the like and truly take to it the terrorists. And I think that sentiment remains, especially when you hear the kind of criticism against closing Guantanamo Bay.

The Supreme Court has ruled this is an affront to American constitutional law. That you can't keep people for an uncontrolled amount of time without charging them with crimes, without taking them to court. This is just not legal. It's not American.

But, given the amount of fear that we have in our society, people say, hey, don't let those guys go, if it's one person as you said, the White House says 6 percent or 30 percent as Kimberley was saying. So people have a sense, we got to fight them at every edge.

And when you hear from this White House the refusal to call terrorism Islamic, then again, the right, the base especially on the Republican Party, says this president is weak on fighting terror. I think the record is to the contrary. I think this is a guy, a president who uses drones. I think we have done well in terms -- we're the only country going after ISIS right now. All these Europeans and the concern about President Obama not standing in the front of that rally last week, I think it's the United States that puts treasure and blood on the line to fight the terrorists.

BREAM: We do have some coalition forces working with us although at a much lower rate than we are in places like Syria and Iraq. There's bipartisan success in keeping transfers of these Gitmo detainees from coming here to U.S. soil and federal prisons.

Somewhere else we're seeing bipartisan unifications is on these sanctions with regard to Iran. We heard this week there was a dust up of sorts as only there would be in Washington between a president and Democratic Senator Bob Menendez. The president talking to them privately, Senate Democrats, and saying basically -- hold your fire on this we don't need to you move forward on this. You'll undermine what I want to do.

And apparently, Senator Menendez stood up and said he was personally offended by the president's suggestion, that he's been working on this for 20 years.

Where do they go from here?

EVAN BAYH, FORMER U.S. SENATOR: My guess is Senator Menendez was first offended by the actions with regard to Cuba. He's been a long time opponent of the Castro regime, probably felt he hadn't been consulted enough on that issue. So, he was irritated to begin with. And then this comes along.

And what this really is about, Shannon, is a fundamental difference of opinion about how you view the Iranian regime. People like Bob Menendez and I think a majority in the Senate will conclude that they are a radical revolutionary regime that respects only power and force and that the threat of additional sanctions is, in fact, going to be essential to any hope of getting an agreement. Some other people possibly the administration feel no they are rational regime that will make a cost-benefit analysis and we can get an agreement that will be enforceable.

So, therein lies the fundamental difference. Bob Menendez has a different view of the Iranian regime than the president of the United States.

BREAM: George?

GEORGE WILL, SYNDICATED COLUMNIST: Except the president went out of his way to be offensive. This is his want (ph), he cannot credit the good motives and decency of people that disagree with him. So, in this closed meeting, according to people who were there, he said, take the long view don't just listen to your donors.

And, of course, at that point people said, well, who are you to talk?

So, the president says, furthermore, he said if we pass these sanction, we will be blamed if the talks collapse on or around the June 30th deadline. It sounds to me he's planning for a collapse and looking for his alibi.

STRASSEL: I think this was a mistake on the president's part too, because he's already facing domestic policy-wise, he's going to struggle to get a lot of Democrats to come on. I mean, Republicans will struggle to get Democrats.

Foreign policy, there's some bipartisan unity out there, and especially on this issue of Iran sanctions and needling Senator Menendez does not help his case.

BREAM: And I want to make sure very quickly, because the president's agenda, and they have been rolling out all sort of things ahead of the State of the Union, kind of getting loss because there are so many international issues going. But, Juan, overnight, we get from the White House plan to raise taxes on those making more than $500,000, to get rid of some of the inheritance tax loopholes, and there are good things attached to that that we would all agree, things like cuts for middle class families and help with child and tax credits and those kinds of things.

But listen, he knows this isn't going to get through the House and Senate. So, is this just him making the GOP go on defense and look like they're advocating for just a bunch of rich people?

WILLIAMS: Yes.

(LAUGHTER)

BREAM: I mean, is that the whole purpose of it?

WILLIAMS: No, no. I mean, look, the politics of the moment is I think working class is intent -- you see this on both sides. You see Mitt Romney as he tries to re-launch his efforts, focusing on trying to do more for the middle class in the country, the president talking about more in terms of everything, from leave for people to doing more with community colleges and now, this tax break. And it is strongly focused, again, on saying that Democrats care about working people and the middle class.

I think you're going to see from the Republicans in the Senate, Senator McConnell doing the same thing with XL gas pipeline, with trying cut down on the number of hours that you qualify for Obamacare. Both parties now in a strong contest and I think that's what you'll see in the State of the Union.

BREAM: All right. Well, we got to leave it there. Much more to discuss, though, so the panel -- we're going to take a break, but we'll see you later on in the program.

All right. What do you think about the president's threat to veto Iran's sanctions and that dustup with Senator Menendez? Let us know on Facebook or Twitter @FoxNewsSunday and please use the #fns.

Up next, the battle over same-sex marriage in this country. Will a review by the Supreme Court settle this debate for good? We have advocates from both sides join us next.

(COMMERCIAL BREAK)

BREAM: The Supreme Court announced Friday it will take up same- sex marriage cases from four states. In a decision that could ultimately bring legal same-sex marriage to all 50 states. As our highest court prepares to rule on this divisive issue, we want to discuss what the Constitution says if anything about the right to same-sex marriage with two top advocates. Leading conservative lawyer Ted Olson who scored a big victory of the Supreme Court for same-sex couples looking to marry in California and Tony Perkins, president of the Family Research Council. Gentlemen, welcome back to "Fox News Sunday." Good to see you both.

TED OLSON, FORMER SOLICITOR GENERAL: Good morning.

BREAM: All right, so when the Supreme Court takes the case they set up a specific question they want the advocates to answer. So, I want to read those and then get your reaction. These are the two questions they've posed. Does the 14th Amendment require a state to license a marriage between two people of the same-sex? The second question, does the 14th Amendment require a state to recognize a marriage between two people of the same-sex when their marriage was lawfully licensed and performed out of state. Ted, very specific phrasing. What does it say to you about how they are going to tackle this case?

OLSON: Well, those -- the reason that those two questions were asked by the Supreme Court is because those were the issues in the states from which the four states was Kentucky, Michigan, Tennessee and Ohio. Those cases came up to the court from those states, some of those states prohibited recognition of marriages that were lawful in other states. Some of them prohibited marriage between anyone other than a man and a woman. So those were the two basic questions the court was presented with. And it wanted to make it clear, it wanted to hear from the litigants as to those two questions and not a lot of other stuff.

BREAM: Butt the phrasing in that first question, does that say enough to you saying the 14 Amendment require a state to license a marriage versus saying that the 14th amendment give couples, same-sex couples the right to marry? I mean it's a bit of a nuance, but it is kind of the red flag for some of us who watch the ...

OLSON: Well, I didn't put too much weight on that. Because the issues that have come up through these four other federal appeals courts that have decided that states can't prohibit marriage between persons of the same-sex and it gets involved in whether states are engaged in the marriage business by providing licenses and then providing laws that give benefits to people that are married. I wouldn't put too much significance on the way the question was phrased.

BREAM: Yeah, and normally case gets an hour. They are giving two and a half hours to this one. So, it will be interesting. All right, Tony I want to look at where same-sex marriage is now legal across the country, 36 states and here in the District of Columbia. More than 70 percent of Americans now live in places where same-sex marriage is legal. Have you lost the fight?

TONY PERKINS, FAMILY RESEARCH COUNCIL: Well keep in mind, Shannon that only three states have the voters actually voted. Two- thirds of the states people live in states where the voters of the legislatures have affirmed the natural definition of marriage. So, we're hopeful that the court will side with the American people on this. The majority of voters who have been very clear in the last two decades that marriage is a unit between a man and a woman. And it will side with the American voters and not with the handful of judges. I mean most people don't want lawyers and judges running the country.

BREAM: But sadly they do in many cases. No offense. All right, let's look at Justice Anthony Kennedy because everyone is going to be watching him. He has had a number of opinions and decisions that have been very friendly to same-sex relationships. He talked about the dignity of those relationships and the children being raised in those homes, but he's also said a lot about states and their rights to define marriage. I want to read you from his 2013 opinion. This was striking down DOMA, the federal ban on benefits in recognition to same-sex couples who are legally married in their states. He said this, in talking about New York making its own decision to permit same-sex marriage, he said "these actions were without a doubt a proper exercise of its sovereign authority within our federal system, all in the way that the framers of the Constitution intended." And at last year in a case that involved a measure passed by voters in Michigan with respect to banning racial and gender preferences in public hiring in education, he wrote this. "It is the right to speak and debate and learn and then as a matter of political will to actual lawful electoral process. The respondents in this case, the people who are challenging the Michigan measure said "They insist that a difficult question of public policy must be taken from the reach of the voters and thus removed from the realm of public discussion, dialogue and debate in an election campaign."

Ted, Tony brings this up. And in numerous states voters did go to the polls. So, why is this discussion, this language from Justice Kennedy different in the context of same sex marriage?

OLSON: Well, in the first place I'd like to make one point with respect to what Tony -- Tony Perkins said just a moment ago. There's ten states where the legislature or the people have voted to authorize same-sex marriage. So that's quite a number in and of itself. But the Supreme Court again and again has said that its responsibility to decide when the Constitution trumps the will of the people. Justice Kennedy held for the court striking down a Colorado measure a number of years ago that discriminated against gays and lesbians. He voted for the court and wrote the opinion for the court striking laws in Texas and laws throughout the United States that prohibited private same-sex conduct in the privacy of the home and he voted, wrote the opinion for the court in the decision striking down the legislatures overwhelming decision to enact the Defense of Marriage Act.

So, ultimately, the reason we have a constitution, the reason we have separation of powers, the reason we have the 14th Amendment is to provide the courts with the opportunity to override the will of the people when the will of the people leads to discrimination against a segment of our society.

PERKINS: But the difference here is that this is not recognized as a fundamental right. This is not deeply rooted in our history. We are talking about something that's unprecedented. In less than two decades we've had state after state go to the polls and people express themselves. This is not how we reach broad social consensus over major issues like this. I mean, as evidenced by what's going to take place here this week, the 42nd anniversary of Roe v. Wade. The court said it was going to decide this issue in 1973. It has not. It will not decide this issue if it imposes a one size fits all scheme of marriage on the American people.

OLSON: I want to say one thing about that. The United States Supreme Court 15 times over the last 120 years has said that marriage is a fundamental right.

PERKINS: Marriage. But not same sex marriage. OLSON: Never once in any of those cases did it say that it had to be between a man and a woman. 15 times it said it was a matter of privacy, liberty, association, dignity and respect for the individual. That's what the Constitution is all about.

BREAM: Well, let me ask you about this Roe v. Wade point. Because Justice Ginsburg has said publicly that it went too far too fast meaning legalizing abortion across the board instead of allowing it to play out state by state. Many are making the same argument with regard to same-sex marriage saying that if you get a sweeping decision here, it's actually not going to help you, it could hurt. Because it seems that Justice Ginsburg is suggesting that prolife forces were mobilized and motivated by Roe v. Wade.

OLSON: Well, in the first place, in 1967 the Supreme Court struck down laws prohibiting interracial marriages, striking down the laws in 16 states. Today we don't even understand that we could possibly have prohibited same -- marriage between people of different races. The president's mother and father couldn't have been married in Virginia, they would have been guilty of a felony. Overwhelmingly now young people particularly support the right of individuals to get married to the person that they love. The American people now are 55 to 60 percent in support of same-sex marriage. People recognize that this is an important right, it hurts gay and lesbian people to discriminate against them and it does no harm to heterosexual marriage to allow those people to marry the person that they love.

BREAM: Let me ask you, though, Tony, because I talked to you, and I'm sure you've talked to some civil rights leaders who don't like the comparison. They don't feel it's appropriate for them. Not some of them.

PERKINS: No, because it's suspicious argument. I mean because there you had a manmade barrier keeping the races apart. Here you have judges attacking a natural bridge that brings the sexes together. And if we take down the states right to define marriage for public policy purposes, I mean if two people who love each other can get married, I guess, Ted is OK with the story out of "New York" magazine this week that an 18-year-old daughter wants to marry her biological father. I mean are you OK with that?

OLSON: Are you all of a sudden interested in what you read in "New York" magazine? For how -- ...

PERKINS: It was on Fox, too.

OLSON: I mean it's very easy to say the sky is going to fall. We're talking about ...

PERKINS: We're talking about ...

OLSON: We're now talking about something that's permitted in 36 states or 37 depending on South Dakota last week and the District of Columbia. No harm whatsoever has been done to heterosexual marriage as a result. PERKINS: That is not true. Religious liberty has been placed on a collision course with sexual license because of a handful of unelected judges and lawyers. The American people have a right to speak on this. They have. The court should respect the voice of the people.

BREAM: Well, it will be five votes at least and we'll see which way they go. Gentlemen, good to have you both here. Thank you so much.

OLSON: Thank you.

BREAM: All right, when we come back, two former governors shake up the GOP race for the presidential nomination. What will their potential candidacies mean for Republican loyalties and for donors? We'll invite our Sunday group back to hash that out. But first, a light moment as the president reacts to news of a potential Romney tripeat (ph).

(BEGIN VIDEO CLIP)

UNIDENTIFIED MALE: If I may, Mr. President, I would really like to hear your reaction to the news that Mitt Romney is thinking about running for president again.

BARACK OBAMA, PRESIDENT OF THE UNITED STATES OF AMERICA: On your last question ...

(LAUGHTER)

OBAMA: I have no comment.

(LAUGHTER)

(END VIDEO CLIP)

(COMMERCIAL BREAK)

(BEGIN VIDEO CLIP)

JEB BUSH (R), FORMER FLORIDA GOVERNOR: At some point we need to unify behind our candidate and I believe that the best candidate is Mitt Romney.

MITT ROMNEY (R), FORMER PRESIDENTIAL NOMINEE: And me, I'm giving some serious consideration to the future. But this I know. We can win in 2016 as a party.

(END VIDEO CLIP)

BREAM: A lot of people thought they could have won in 2012. Well, that first bite was Jeb Bush in 2012 calling Mitt Romney the best candidate in the presidential field. Mitt Romney then this week keeping the door wide-open for a third presidential bid making the prospect of a head-to-head match-up between the two GOP heavy weights. That's much more possible and interesting. We're back now with the panel to talk 2016.

All right. Juan, you are probably not going to vote for either of those individuals, but what do you make, you know, once Jeb Bush sort of got out there with his announcement, it seems like it's sort of sped up everybody else's timeline about whether they are in or out.

JUAN WILLIAMS, FOX NEWS POLITICAL ANALYST: No question about it. And so, the game begins. And it's, you know, not only gentlemen start your engines, but I think it's now at the point where it's a primary campaign about money. And about donors. And I think that's the real conflict here. So, you have to separate out people who are at the top tier. And when it comes to top tier ability to raise money on the Republican side right now it's Jeb Bush and Mitt Romney. The question for donors and this week I talked to some donors on the Republican side, they don't feel any passion or reason for Mitt Romney to get back in the game. Friday night, San Diego Republican National Committee winter meeting, he made the case that he now has a new narrative. He thinks that with a strong foreign policy hand, to say the Obama administration has been weak as we were discussing in the first panel, and more effort in terms of speaking to the middle class about upward mobility that Mitt Romney can be the best Republican candidate for '16. I'm not sure other Republicans, especially the (INAUDIBLE) agree.

BREAM: Well, and neither do some of the people who could possibly be his competitors in 2016. Here are a couple of them weighing in on a possible tripeat.

(BEGIN VIDEO CLIP)

RAND PAUL (R) KENTUCKY SENATOR: I do think, though, that the same old, same old has been tried and if we try the same thing again we might get the same result.

SCOTT WALKER (R) WISCONSIN GOVERNOR: If we're going to be up against particularly Hillary Clinton we have got to offer a new fresh approach and ideally, that one that comes from the states.

(END VIDEO CLIP)

BREAM: All right, Kimberley, we see there Senator Rand Paul and Wisconsin Governor Scott Walker, potentially throwing their hats in the ring as well. So, of course, they are not going to have open arms, essentially, for Mitt Romney returning.

KIMBERLEY STRASSEL, THE WALL STREET JOURNAL: So, they are hitting on some of the themes that you are hearing. Look, Romney is out there and he's making his case for why he should do this again. And there are some compelling reasons he'll say this is the third time at the rodeo, I understand the mechanics of presidential race, I'll have donors behind me. Maybe the voters have some buyer's remorse, because they went for Obama. Should have gone for me. But the fundamental problem for Mitt Romney when he ran both in 2008 and 2012 is he lack a compelling narrative, a compelling reason for why he was in the race. And a particular anchor on him as well was this question of income inequality and class warfare. And Republicans understand that Democrats are gearing up to make that their number one issue in 2016. And that's what has Republicans worried. Just when you listen to Mitt Romney it's still not clear he has a way to navigate that question. He has any answers for that question. And that is what you see so much push back on him doing another run.

BREAM: George, you have a new piece out and you break down a lot of the mechanics, the electoral votes where Republicans are and some questions about whether this is a good idea or not for Mitt Romney to try again.

GEORGE WILL, SYNDICATED COLUMNIST: It's very hard -- there's unanimity in American politics, particularly among fractious Republicans, but Mitt Romney this week, did so.

(LAUGHTER)

WILL: So far, so far as I can tell, there's no one expressing the desire, this pent up desire for another Romney campaign. Is the field weak? He doesn't have that excuse. This is probably the strongest most diverse Republican field since 1856 when there was first a Republican field (ph). Is the party weak? They control 31 governors. Seven of the ten largest states have Republican governors. They control both legislative chambers and the governorship in 23 states, 251 electoral votes. The Republican Party is geared up for a very strong showing in 2016 and they do not need to look backwards.

BREAM: I have to confess that I didn't think New Jersey Governor Chris Christie was going to get in and he's certainly not in, but he's doing important meetings with important donors and (INAUDIBLE) people. He gave his State of the State address this week in New Jersey and he talked about a lot of places outside of New Jersey. He talked about how he's talked with people and they have anxiety and they are worried about jobs and those kinds of things. Here's a bit more of what he said in his State of the State address.

(BEGIN VIDEO CLIP)

CHRIS CHRISTIE (R) NEW JERSEY GOVERNOR: I saw it on the streets of Chicago and felt it in the suburbs of Maryland. I heard it from farmers in Kansas and from teachers in Colorado. I felt it from veterans in Maine and from workers in Arkansas.

(END VIDEO CLIP)

BREAM: Senator, those places aren't inside New Jersey.

EVAN BAYH, FORMER U.S. SENATOR (D-IN): You're an astute student of geography.

BREAM: I'm not great at geography, but I do know that much.

BAYH: Yeah, well, look -- it looks like Governor Christie is going to run, and he, Governor Walker possibly Marco Rubio who's a very talented young man, they are the ones who are most affected by the Romney-Bush challenge. Because they are really all auditioning to be this more establishment type of candidate. Simultaneously you have a contest going on to be the more movement candidate. That may be Senator Cruz and Mike Huckabee, possibly Rick Santorum. Rand Paul who I had a bet would be the last man standing there. And so, the real question here is this is shaping up as George mentioned, this is shaping up as a very close competitive presidential election. I think with a slight advantage to the Democrats because of the bias in the Electoral College, the improving economy and some demographic changes.

If the Republicans don't blow it, however, by getting way, way too far to the right and by having a very nasty protracted nominating process, you are looking at a 51-49 type election. So, the question is, can they go through a very talented rambunctious field or are still trying to observe Ronald Reagan's 11TH commandment, and that is you run with a positive vision about the future without running down the other Republicans, because one of them is going to be held in standard there.

BREAM: Right. And seemingly to quell a little bit of, control a little bit this week, we see the nine specific debates that are going to be sanctioned by the RNC and the tightened up calendar. That may be aimed at that. Let's talk a little bit about the Democratic side. Hillary Clinton, people are still split. I mean it seems like she's in, but I hear one from a lot of people saying, I'm not sure she's actually going to run. The previous head of the RNC acknowledging this week they've got research opposition teams staked out in Little Rock. They are working on it. Do you think she -- runs, and if she is a lock as a nominee. If she does.

WILLIAMS: I think she's running. I don't see any indication she's not running. I think all of the contrary indications are people who are very enthusiastic about Elizabeth Warren are ready now. There are people running ads, raising money for Elizabeth Warren. But Elizabeth Warren, even in this morning, the papers said she's not running. And no is the answer, she wants to be the outsider. But again, we come back to this clear theme, Republican or Democrat, this is a populace campaign about appealing to working class folks and the question about Hillary Clinton is was she the New York senator from Wall Street and if so, can -- does that mean that she really can't be an effective candidate who would stir up the Democratic base and much what we're asking about, who is the Republican, Rand Paul, Ted Cruz whoever that can stir up the Republican base?

BREAM: Well, I want to put up those ads so people can see them and know what we are talking about here. These full page ads in New Hampshire saying to Elizabeth Warren, we know you say you're not running but we really need you. You could see their quote. "Please run for president." Kimberley, you know, there's an interesting piece in the "Washington Post" today talking about maybe she's truly not running, but she does want to keep the heat on Hillary Clinton when it comes to issues like Wall Street and these kinds of things.

STRASSEL: What we know is when people say they are not running for president they are still debating running for president. And Elizabeth Warren knows she has everything on her side at the moment. She will sit back. This movement is building. They are running ads for her. There's this pent up belief, the small progressive side of the party. They are sending side of the party, they need someone like Elizabeth Warren to come in. And so, she will sit there and she'll wait until at some point, she'll probably say look, I need it. I have to come and do this. So, I would not count her out at all. There's a real passion for someone like that in the party at the moment.

(CROSSTALK)

BAYH: Two things, Shannon. I think really, what Senator Warren is trying to do is to influence the dialogue and debate.

STRASSEL: She already has.

BAYH: And she has. And so, the question for Mrs. Clinton is can she capture the passion of the progressives, but even more importantly, can she do enough to avoid a Ralph Nader like independent candidacy on the left?

BREAM: All right. We're out of time. We could talk about this for ages. But we only have two years to go.

(L)

BREAM: Less than two years now. All right, thanks panel. We'll see you next week.

Up next, our power players of the week. 16 Congress's partisan divide.

(COMMERCIAL BREAK)

BREAM: With the 114TH Congress under way some say our government is more divided than ever. Two former members are working to address that problem. Joining us now former congressman Tom Davis, a Republican and Martin Frost, a Democrat to discuss their new book "The Partisan Divide: Congress in Crisis." Gentlemen, welcome back to Fox News. And good to see you.

TOM DAVIS: Thank you. Good to see you.

BREAM: Congressman Frost, why did you decide to put this book together? I mean there is gridlock on the Hill like nobody's business, but is there any way to fix it?

MARTIN FROST (D) FORMER TEXAS CONGRESSMAN: Well, that we have some suggestions to fix it. But we really thought that the public needs to understand how we got to this point. Also, we hope that this will be a book for young people, college students, high school students to learn about our government. Our government faces an enormous problem, lack of confidence in our congress. We think there are some changes that can be made to it, so that Congress can work together across party lines.

BREAM: Yeah, and Congressman Davis, I mean obviously Congress, unfortunately is the lowest rated when you talk about approval across the board, the Hill, the White House, the Supreme Court. Why is Congress always now in the single digits pretty much?

DAVIS: Well, they are not getting anything done. So, it's absolute gridlock. We devolved into a parliamentary system in the balance of power structure and it just hasn't worked.

BREAM: Well, and you know, you think about the minority party. I know you all write about it. You used to have a very different role. I mean sometimes people just talk about obstructionism these days, and that's how it works. But there used to be more of a roll for that party.

FROST: Minority party used to be an actual partner, a minority partner with the majority party and trying to solve the problems of the country. What we have now is that the whole action in most congressional districts is in a primary, and people -- well, not too many people lose their primary, they are always worried that they might lose to someone to the extreme in the primary so if they ever consider talking to the other side then they can't do that because they will get a primary challenge with a lot of money and a small turnout election. We suggested going to bipartisan commissions to draw congressional lines to minimize that.

BREAM: Well, and everybody says or the old thing was that politics was local, but I know that you all think that so much of it has been nationalized, so that people who need to be in their district are doing things they are worried about what the national party is saying and what line they need to take.

DAVIS: We have a chapter in the book saying all politics is no longer local. And we use some illustrations of this. And (INAUDIBLE), but the real problem here is we're sitting there and members are worried about the primaries in November. To 80 percent of the members it's just a constitutional formality.

FROST: Also, you have the problem of money in politics. We think there ought to be full disclosure. You let you have these C4 dark organizations that can spend millions and millions of dollars, not have to disclose their donors. You can't change the system. The Supreme Court is not going to limit the amount of money people can give, but you could require full disclosure, and we think that would help the system.

BREAM: Transparency. It's always a good thing.

Are there people that you see now on the Hill in the Senate or the House that you think would be good compromises, or people that can work across the aisle?

DAVIS: Well, I think the leaders want to go there. They are institutionalists. They are on both sides. But their members won't follow. Their members get pulled the other way: primary -- campaign finance reform coupled with Citizens United has moved the money away from the parties, basically out to the wings and these have tremendous influence and the both parties have just moved right and left.

FROST: And I can tell you in my own state of Texas there're a lot of I think fairly reasonable Republicans who would love to try and work across party lines, but they are scared that they are going to get a primary challenger from the far right in a low turnout primary, so they are paralyzed and they can't move. I think there're a lot of good people in Congress that would like to do this. Somehow we have got to change the system so that makes it possible for people to talk to each other.

BREAM: And you talk about the fact, too, that Congress in some respect has abandoned its role in the balance of checks and balances of power.

DAVIS: They do. And just take a look at earmarks, for example. First 150 years of the republic Congress which has the power of the purse would earmark -- or designate projects. They've completely abandoned that given that over to the executive branch by failing to get their budgets in on time and do continuing resolutions. That has transferred power to the administration to move money around in (INAUDIBLE)

FROST: Good example is the immigration reform. The Republicans now are saying oh, this is terrible what the president did with the executive order, but they refused to take up the issue so they just kind of handed the issue to the president. This is like the situation with the person who kills his parents and throws himself on the mercy of the court because he's now an orphan. It doesn't make any sense.

DAVIS: Court power as well. They are just punting on that instead of taking and just letting the president pick up ...

BREAM: Why do you think that is?

DAVIS: Well, because they are risk adverse, number one. I think, members like to get re-elected. These are very difficult votes. Members don't like to take cut votes. They like to cut ribbons.

BREAM: Open schools.

DAVIS: Exactly. And now, with the primary being the main focus for both Democrats and Republicans they focus on their primary voters who are a thin ideological slice of the electorate. The voters at large who tend to be more independent are left out.

FROST: We suggested a national primary day, which would increase turn out, the media would focus on what's going on. More turn out makes -- possible for more moderate people to be elected.

BREAM: Congressman Davis and Frost, good to see you both. Thank you so much. The book is in stores now. "The Partisan Divide." Check it out -- a very interesting read, very educational, too. That's it for today. Have a great week. We'll see you next "Fox News Sunday."

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Sunday December 11, 2016

Coming up this week: President-elect Donald Trump sits down exclusively with Fox News Sunday in his first Sunday show interview since winning the election. Chris will travel to New York City to speak with Mr. Trump about the transition and then go on the road with the President-elect as the conversation continues on "Trump Force One." Fox News Sunday airs at 2P/10P/2A on Fox News Channel & check your local listings.