This is a rush transcript from "The Kelly File," February 15, 2016. This copy may not be in its final form and may be updated.
SANDRA SMITH, GUEST HOST: Breaking tonight. Republican front-runner Donald Trump opens up a new line of attack in a move that some have suggested could tear the GOP apart.
Welcome to "The Kelly File" everyone, I'm Sandra Smith in for Megyn Kelly tonight. It all started Saturday night at the final debate before South Carolina's primary, Donald Trump launching an all-out assault not only on his fellow candidates but on the reputation of the last Republican president. George W. Bush. Take a listen.
(BEGIN VIDEO CLIP)
DONALD TRUMP, R-PRESIDENTIAL CANDIDATE: Obviously the war in Iraq was a big fat mistake. George Bush made a mistake. We can make mistakes but that one was a beauty. We should have never been in Iraq. We have destabilized the Middle East.
UNIDENTIFIED MALE: But so, I mean, you still think he should be impeached?
UNIDENTIFIED MALE: I think it's my turn, isn't it.
TRUMP: You call it whatever you want. You call it whatever you want. I want to tell you. They lied.
UNIDENTIFIED MALE: OK.
TRUMP: They say there were weapons of mass destruction. There were none. And they knew there were none.
(END VIDEO CLIP)
SMITH: The next day the Washington Post headline reading, "Debate rips open GOP wounds and party risks tearing itself apart." "The Post" noting the series of deeply personal ferocious attacks the candidates lobbed at one another as well as suggestions by Mr. Trump that President Bush deceived the American people. Some are now likening his remarks to a democratic talking point. But Mr. Trump wasn't done repeating his attacks against George W. Bush on the Sunday shows and, again, today in South Carolina.
(BEGIN VIDEO CLIP)
TRUMP: The World Trade Center came down during the, you know, reign of George Bush. Right? I mean, it came down. I'm sorry. But we weren't safe. The World Trade Center came down. You obviously had the war which was a big mistake. I mean, I think few people would say the war in Iraq was a positive. You had him on the aircraft carrier saying all sorts of wonderful things how the world was essentially over. Guess what? Not over. And you know, the war with Iraq is a disaster.
(END VIDEO CLIP)
SMITH: All right. So, those comments coming just hours before President Bush hit the campaign trail on behalf of his brother, Jeb, in South Carolina. And the former president had a few choice words about what it takes to be commander-in-chief. In moments former Bush senior adviser Karl Rove is here to react.
Plus, we'll ask two Iraq war veterans, Pete Hegseth and Carl Higbie what they think about Mr. Trump's comments.
But we begin with Trace Gallagher reporting first from our West Coast Newsroom on the former president's campaign event. Trace, good evening.
TRACE GALLAGHER, FOX NEWS CORRESPONDENT: Sandra, good evening. For seven years the former president has avoided politics like the plague and while he has done some private fund-raisers for his brother, this is the first public appearance of the campaign for George W. Bush. And he's beginning a very friendly territory, both George W. and his father won their respective South Carolina primaries and according to a private poll conducted by a former chair of the South Carolina GOP, W's approval rating among South Carolina Republicans is at 84 percent.
Bloomberg puts his national approval ratings among Republicans at 77 percent. The numbers are even higher among military members which is why some experts say attacking the former President's strategy in the war on terror can easily backfire. Confidants of George W. say he's campaigning for his brother because he believes Jeb can rebound by pulling off a surprise in a key early state like South Carolina. Watch.
(BEGIN VIDEO CLIP)
FMR. PRESIDENT GEORGE W. BUSH: Presidency is a serious job that requires sound judgment. And good ideas. And there's no doubt in my mind that Jeb Bush has the experience and character to be a great president.
(END VIDEO CLIP)
GALLAGHER: And those close to the former president tell our cousin publication the New York Post that George W. Bush is captivated by the 2016 campaign and he's also amazed that so far Republicans prioritized Donald Trump's anger over Jeb Bush's qualifications. Listen again.
(BEGIN VIDEO CLIP)
GEORGE W. BUSH: Americans are angry and frustrated. But we do not need someone in the Oval Office who mirrors and inflames our anger and frustration.
We need someone who can fix the problems that cause our anger and frustration and that's Jeb Bush.
(END VIDEO CLIP)
GALLAGHER: At one point the crowd chanted they miss George W. Bush. The former president is now hoping to keep that love in the family. Sandra?
SMITH: All right, Trace Gallagher, thank you.
My next guest served in the Bush White House and has in-depth knowledge of what President Bush did and did not know.
Karl Rove is a FOX News contributor and served as senior adviser and deputy chief of staff to President George W. Bush.
Good evening, Karl. What do you make of Donald Trump in that press conference today doubling down on his criticism of the former president and us being in Iraq and the war in general?
KARL ROVE, FOX NEWS CONTRIBUTOR: Let's take those three things that he said today and earlier. He said the CIA warned of 9/11, the Bush lied about WMD and then claimed he said loud and clear -- Trump said that he said loud and clear, do not go into Iraq. All three of those things are absolutely wrong. Let's start 9/11. George Tenet, he said, knew in advance there would be an attack. Well, he's obviously not read George Tenet's book called, "At the Center of the Storm." If Donald Trump had any passing knowledge of what George Tenet said, he would not have said what he said.
On page 160, George Tenet says that they received on September 10th yet another bit of chatter indicating a potential attack on the United States. It sounded very much like all the other warnings we received in June, July, August, and early September. Frightening but without specificity. The entire government was on high alert but they didn't know what was coming. And so the idea that somebody could have stopped 9/11 based on the kind of information that we had available on the time is simply nonsense and Trump's quoting supposedly George Tenet in saying that he knew in advance of the attack is simply baloney.
SMITH: OK. So, you're clearly, Karl -- you're clearly refuting the claims that Donald Trump made today. Where do you think that he's going with this? Why do you think, particular in the state of South Carolina, where we know as that poll just pointed out that George W. Bush's favorability rating among South Carolinians is about 84 percent? Why there, why now?
ROVE: Well, look, it's hard to explain why he does what he does. He's probably trying to hold on to a quarter of the vote, the third of the vote that he's got in the state and he may say, OK, fine, 80 percent of Republicans like Bush, 65 or 70 percent think I'm completely insane on this issue but I'm trying to hold on to 25 or 30 percent. But by perpetuating these myths, I mean, you know, it's just amazing to me that he gets away with this stuff.
ROVE: Say, for example --
SMITH: But you say he's getting away with it, Karl. But I want to talk about what this means for the party because we just pointed out this "Washington Post" piece today. The debate ripped open GOP wounds and party risks tearing itself apart. Do you believe that's happening?
ROVE: Well, I look at it slightly differently. It is going to be difficult for anybody to unite the party they get the nomination. If it's ABT Anybody But Trump -- anybody but Trump is going to have difficulty because there's going to be some element of the party, 15 or 20 percent that say, Donald Trump was right. Bush lied about WMD. We had a National Commission headed by a respected jurist and a former democratic U.S. Senator who investigated that issue including who -- there was no effort to mislead the American people about the intelligence. We had a British Royal commission that studied the same commission. And the left wingers say that kind of stuff. But Donald Trump by bringing it up is going to take some element of the Republican Party. And if he loses the nomination, it's going to be difficult for us to get those people back into the fold.
ROVE: And if he wins the nomination, advocates who supported George W. Bush, you think they're going to be enthusiastic about the guy who said that he lied?
SMITH: All right. Well, Jeb has got his brother out there. The former president, we have got to leave it there, Karl. But from your take and your knowledge of Inside the George W. Bush White House, now he's got his brother on the campaign trail, will this be effective in turning around Jeb's campaign?
ROVE: Well, look, it will be helpful. But even, the former president, you know, he had lots of endorsements shortly before we lost the New Hampshire primary about 18 points. So, it's not necessarily just positive. But I would say one more thing, it's not just Bush versus Trump. You saw the other night in the debate three other candidates came to the defense of George W. Bush. It was Marco Rubio gave one of the most powerful supports of Bush saying that he and his family were grateful every day that George W. Bush was president on the night of September 11th, not Al Gore.
And Donald Trump is making -- he makes the claim that he said loud and clear, do not go into Iraq, that's complete baloney, it is a lie. There's not a single statement he makes before 14 months after the beginning of the war in which he said, do not go into the war, in fact, he said in January on CNN that Bush was doing a great job and, quote, "Either Bush has got to do something or not do something about going into Iraq and even after the war began," he was supportive of it. It's just baloney. Baloney.
SMITH: All right. All right. Karl Rove, thank you.
All right. So how is Mr. Trump's language on Iraq viewed by the Americans who actually fought in that war? We're going to bring in two veterans now. Pete Hegseth is an Afghanistan and Iraq war veteran and FOX News contributor. And Carl Higbie is a former Navy SEAL. And by the way, a Donald Trump supporter.
CARL HIGBIE, FORMER NAVY SEAL: I am.
SMITH: So, I got to ask you, after everything we've just heard, why do you -- and I point out your credentials, you've served from 2003 until 2012. Former Navy SEAL, you did two deployments in Iraq. Why do you think Donald Trump is the best guy for the job to lead this country and lead the military?
HIGBIE: Well, we need to look at first four things. I have immeasurable respect for George W. Bush but Jeb is not his brother. That's fundamental fact. I look at a guy like Donald Trump who has consistently -- he has set a goal, surrounded himself by the right people and then performed and then accomplished the goal which is I see just the same thing. I mean, was it a mistake to go into Iraq? We can armchair quarterback all we want. But the fact of the matter is, Donald Trump will set goals. Systemic goals to disassemble ISIS, to destroy them and take them off the face of the earth. I don't think Jeb has the fundamental -- to do that.
SMITH: What about the challenge that he doesn't have the experience? Hegseth, I've heard that from you before.
PETE HEGSETH, AFGHANISTAN AND IRAQ WAR VETERAN: Well, absolutely. The fourth point you forgot is he trashes everybody that he doesn't agree with. In this case he's trashing the Iraq war and veterans alongside it who fought valiantly for it. Using talking points from MoveOn.org. And Nancy Pelosi and Harry Reid, when you and I both know having serve their -- than the Iraq surge, we turned that war around, won the war, handed it to Barack Obama and he failed and left it to fall to ISIS and then Donald Trump has the audacity in a Republican event to stand up and say, it's George W. Bush's fault that 9/11 happened. Iraq war is a disaster because of him. Every veteran of Iraq should be offended by that statement. I don't know why vets keep backing him on those statements when he just throws it out there.
HIGBIE: I back him because I think he's going to take the lawyers off the battlefield. And look, I have --
HEGSETH: A lot of candidates have said that, by the way.
HIGBIE: Well, Donald Trump is the only one I believe will do it. I have a lot of respect for George W. Bush but his hearts and mind mission was not conducive to winning the war. I don't think that we were winning the war.
HEGSETH: The surge won the war. In fact, Joe Biden said in 2011 this war is won, we can leave, it's going to be a success for the Obama administration. Why isn't Donald Trump talking about that? Why is he litigating 9/11 and the Iraq war shooting inside the tent at this Republican debate? It's not helpful.
SMITH: All right. So, Pete, let's go back to the fact Karl Rove was just refuting these claims that Donald Trump says that he was raising a red flag saying, we shouldn't do this in 2003, in 2004, he's saying it simply wasn't true. I heard you under your breath say, that's true.
SMITH: You are a big believer that Donald Trump is waving saying he was saying this is a bad idea, but he never --
HEGSETH: In his book in 2000, he talked about how he believed that they probably had nuclear weapons, weapons of mass destruction. Eventually some is going to have to do something about it. There's no public utterance he ever made against the war in Iraq, a year after he started talk about how he thought it was a bad idea. And that's fine. A lot of people shared that perspective. There's a lot of sunshine patriots, when it's tough, if you stick with it, you can have a good outcome and that's what happens.
SMITH: So, are you unique in that you are a war veteran and you support Donald Trump or are there others in the military community that you speak with that support him as well?
HIGBIE: An overwhelming number of my friends support Donald Trump. I think what they see is they see a conviction behind a man. You saw W. speak today with Jeb. And it was two completely different people. I would re-elect George W. Bush in a heartbeat. But, you know, obviously can't --
SMITH: Why not Jeb?
HIGBIE: Because Jeb is not his brother. Jeb is definitively not his brother.
SMITH: What about him, though?
HIGBIE: He's a noodle. He's soft.
HEGSETH: But that's not a pro-Trump argument. That's an anti-Jeb Bush argument.
HIGBIE: OK. So, my pro-Trump is that, I see someone like Donald Trump who has set goals, met them and then continued to strive forward. I think he has the conviction to fight this war as it needs --
HEGSETH: How do you build -- how do you build a bigger stronger army that no one would mess with without increasing defense spending? How do you defeat ISIS while doing -- exactly what Obama said by writing off having ground troops you can need to? Those aren't necessary clear point --
SMITH: So, what is -- what is the biggest quality that you look for in a president?
HEGSETH: Listen, what I love about Donald Trump is that he fights political correctness. That it tells it like it is. That it's all good. What I look for -- I want a commander-in-chief, I want somebody who understand these issues, who's going to rebuild the military. I think there's a lot of Republicans --
SMITH: Who's that guy?
HEGSETH: I think Marco Rubio, Ted Cruz, folks like that are focused on talking about those types of things with a level of knowledge. Certainly Marco Rubio showed in that last debate that he understands foreign policy, wants to rebuild the military. He's been fighting for the VA. Donald Trump talks about vets all the time. It's always in a terminology of victimhood. Feeling bad -- Marco Rubio fought for V.A. accountability for a long time. So I appreciate that Donald Trump --
SMITH: So talk real quick though Karl, I do want to point out this piece in the "Weekly Standard," veterans shouldn't trust Trump. And in it, they point out his mocking of a prison of war, a war hero, John McCain and this is at the very beginning of his campaign, how everyone so easily has gotten over that and forgotten that.
HIGBIE: Well, I think, you know, what it was is John McCain is a senator in the state where we had the worst V.A. scandal in history and nothing was done. Nobody was fired. Nothing was caught for it.
HEGSETH: I was there. I worked on that. He fought --
HIGBIE: Call it a bottom-line, OK? Call it a talking point for everyone. Nothing got done. Nobody got fired. You've been on TV yourself saying that. And to one more point also, the people who think that the military is not as strong as it was are wrong, they're absolutely wrong. And the fact of the matter is, the U.S. military is strong because of the people that are in it right now.
HEGSETH: Like this guy. Absolutely.
HIGBIE: To Pete's point, we're strong because of the people are in it. You know, you can downsize us 10 percent, whatever, we are still just as strong as we were.
SMITH: What does a military, a U.S. military look like under Donald Trump as president?
HIGBIE: I think we see ISIS gone in two years, put 250,000 boots on the ground. I know people that's not a popular comment. We do it as necessary. We set the threshold, if you do this, we will do this. And then we follow through. The red line in the sand that Obama failed at, Donald Trump will not fail that. He will set the red line, he will met those criteria and he will destroy ISIS.
HEGSETH: I think there's a lot of Republicans on the state that would say that and that would set those lines as well.
SMITH: All right. Thank you to both of you, Karl and Pete, great to have both of you. And thank you for your service as always.
All right. Well, ahead we're getting new and personal stories about a man hailed as the most important conservative voice on the modern U.S. Supreme Court.
James Rosen is here on the life and legacy of Justice Antonin Scalia. Then, two lawyers who worked closely with the legal legend are here to share behind the scenes stories, some you have not heard.
Plus, Mark Hannah and Rich Lowry on what promises to be a messy political battle ahead over Justice Scalia's potential successor.
And later, New York's former Governor Eliot Spitzer, he's back in hot water after a woman accuses him of choking her at one of the big apple's most famed hotels.
SMITH: Developing tonight, new reaction still pouring in two days after the death of one of the most influential legal minds in American history. Supreme Court Justice Antonin Scalia died Saturday at the age of 79. Mr. Scalia was nominated to serve on the highest court in the nation by President Ronald Reagan in 1986. In the 30 years that followed, Justice Scalia defined himself as one of the most powerful and reliable conservative voices the modern court ever saw. We're joined tonight by two men who knew him well. Personally.
Ed Whelan, clerked for Justice Scalia and is president of the Ethics and Public Policy Center. And Thomas Dupree is a former deputy assistant attorney general who argued cases before Justice Scalia.
We begin with Chief Washington Correspondent James Rosen for more on the life and legacy of this legal giant.
JAMES ROSEN, FOX NEWS CHIEF WASHINGTON CORRESPONDENT: Sandra, good evening. With the death of Justice Scalia, the Supreme Court has lost not only one of its most brilliant legal minds and consistently conservative voices, but a true character, down to earth and bursting with mischievous wit. A distinguishing feature of Scalia's jurisprudence was that he had a well thought out theory for how judges are supposed to go about the business of interpreting statutes and on behalf of this theory, Scalia was a tireless evangelist. He called it textualism. And the theory holds that when judges decide what a law means, they should really only consider the text of the statute itself not the legislative intent behind the law or foreign court rulings on similar subjects and so on.
This in turn Fed Justice Scalia's contempt to the idea but the constitution is a living, breathing document, and accordion like instrument that can helpfully expand and contract according to the needs of the day. That way Scalia thought lies tyranny. When the bill of rights and amendments can be interpreted to mean something different in every generation simply depending on who happens to get elected. If Scalia's vision of the law never fully prevailed on the court, that was because he never sat on the bench as part of a reliable conservative majority. But that never stopped Scalia from having fun on the job. He was usually the liveliest of the justices who were given to peppering the attorneys during oral arguments. And he brought to that past time a certain instinct for mischief in one case where the issue at hand had to do with accommodations for disabled golfers and how far that should be taken in competitive situations.
Justice Scalia post the question of whether if this accommodation were granted henceforth little leaguers meeting certain standards would be granted a fourth strike at the plate. He was also a creature of habit. Legend had it that Scalia dined at the old A.V. Restaurante, an Italian place on New York Avenue every day for 40-odd years. I was privileged to be his guest for lunch at the A.V., just the two of us on a couple of occasions. And because we were off the record Scalia spoke on those occasions freely about the people and events of our times. And if you didn't keep it prominently in mind that you were seated across from one of the great legal minds of our times, you could be lulled into imaging that you were dining with Paul Sorvino, who are an avuncular, Italian uncle. He made me eat vegetables off of his plate, yes. He was ordered his lunch for me, insisting that I eat a dish that I really could not abide, and on one occasion, the justice cave me a ride back to FOX News in his car with me as his passenger. I can tell you, he was not immune to a bit of road rage -- Sandra.
SMITH: All right. James Rosen, thank you. Here with more, Ed Whelan and Thomas Dupree. Gentleman, good evening to both of you.
ED WHELAN, FORMER CLERK TO JUSTICE SCALIA: Good evening.
THOMAS DUPREE, FORMER DEPUTY ASSISTANT ATTORNEY GENERAL: Good evening, Sandra.
SMITH: Ed, care to share any of the stories? I mean, "The Wall Street Journal" just did a piece, "Justice Scalia's Legacy Have Last." And then a Boston University law professor, he ranked justices according to the laughter that they elicited in oral arguments and it concluded Justice Scalia won the competition by a landslide.
WHELAN: Well, he had so many wonderful qualities from his deep faith to his pervasive sense of joy to a certain mischief. He was a delight to be around. He of course worked us clerks hard and was very intimidating to give him our work product but we were always amazed to see how he would refashion it to make it distinctively his own. Such a good man. And, you know, he appreciates the good qualities in other people. We know his famous friendships of people who did not share his ideology. He believes so much in the vigorous argument that he was happy to have as friends people who didn't agree with him and he appreciated the good qualities that they had nonetheless. Just a wonderful man to be around.
SMITH: Thomas, how will you remember him?
DUPREE: Well, I remember him in preparing for arguments in the Supreme Court. You always had to be ready for the questions from Justice Scalia. Because he could cut you to the quick. As Ed said, he'd just immense intelligence, just absolutely wonderful delightful temperament. He was a true intellectual force, he was transformative on the court both through the power of his written opinions which were beautiful, but also behind the scenes in terms of the rigor of his analysis and the way that he saw the law. He truly understood that when judges deviate from the text, from the text of the constitution, from the text of our laws, that's very dangerous. It's an opportunity for mischief because it enables the judges to basically write their own political preferences into the law. He was very cautious about that.
SMITH: Ed, what do you think his legacy will be?
WHELAN: I think so long as future generations of lawyers and law students are reading opinions, they will savor Justice Scalia's opinions, including his dissents. Of course his dissents are some of the most, colorful, delightful reading you will find. I think what's remarkable is, you look back to his second year on the court, his wonderful solar dissent in Morrison versus Olson. The independent counsel statute, where he said this wolf comes as a wolf. That opinion now is widely regarded across the ideological spectrum as wise and right and I think that when we get past the political hot buttons of the day, people will recognize that the deeper wisdom embedded in so many of his dissents.
SMITH: Thomas, as we listen to everything that you two have to say about him tonight, both on a personal and a professional basis, you wonder what the process to replace him is going to look like.
DUPREE: Well, first of all he's irreplaceable. I think pretty much everyone will agree with that. And it will be interesting to see what happens. Certainly the President was very aggressive. Surprisingly aggressive in coming out within hours of the news saying that he was determined to appoint a successor and get him or her on the bench as soon as possible. I think right now, frankly, it's a gut check for the Senate. We'll see if the President follows through with what he promised. We'll see if the Senate permits that nominee to move forward through a hearing and vote. But it's certainly going to be very interesting times over the next few months.
SMITH: All right. So, Ed and Thomas, thank you both for joining us tonight and sharing your stories.
WHELAN: Thank you.
DUPREE: Thank you.
SMITH: Ahead, President Obama says, he will nominate a new justice to take Antonin Scalia's place on the bench. But Republicans believe the next president should make that pick.
Mark Hannah and Rich Lowry on the growing political fight the defined the country's future. And after the Republican contenders traded some of their strongest barbs at the weekend's debate, Dr. Ben Carson is here with a call for civility in the presidential race ahead of the South Carolina primary.
(BEGIN VIDEO CLIP)
DR. BEN CARON (R), PRESIDENTIAL CANDIDATE: And anybody up here is going to be much better than what's going to come on the other side. And what happened tonight with Justice Scalia tells you that we cannot afford to lose this election and we cannot be tearing each other down.
(CHEERS AND APPLAUSE)
UNIDENTIFIED MALE: Dr. Carson, I -- let me ask you --
SANDRA SMITH, FOX NEWS REPORTER: Breaking tonight, the political fight to pick the next Supreme Court justice is on. The republican leader of the Senate, Mitch McConnell saying he will not consider a high court replacement until a new president is elected. But President Obama is vowing to nominate someone and soon. Democratic senator and member of the judiciary committee, Chuck Schumer saying it is the duty of the GOP to consider that person.
(BEGIN VIDEO CLIP)
SEN. CHUCK SCHUMER, D-N.Y.: The job first and foremost is for the president to nominate and for the Senate to hold hearings and go through the process. You know, the constitution -- Ted Cruz holds the constitution you know when he walks through the halls of congress. Let him show me the clause that says the president's only president for three years. Does this mean we don't hold hearings on anything?
(END VIDEO CLIP)
SMITH: But Senator Schumer was singing a different tune back in 2007 when republican President George W. Bush was in office. Listen to this.
(BEGIN VIDEO CLIP)
SCHUMER: Given the track record of this president and the experience of obfuscation at hearings with respect to the Supreme Court at least, I will recommend to my colleagues that we should not confirm any Bush nominee to the Supreme Court except in extraordinary circumstances. They must prove --
SCHUMER: -- they must prove by actions not words that they are in the mainstream rather than we have to prove that they are not.
(END VIDEO CLIP)
SMITH: Mark Hannah is a former campaign aide for the Obama and Kerry presidential campaigns and partner in the Truman National Security Project and Rich Lowery is a "National Review" editor and Fox News contributor. Mark, I'll start with you first. A lot of people say it's a little hypocritical for Chuck Schumer to say what he is now considering what he said in 2007, your response.
MARK HANNAH, FORMER CAMPAIGN AIDE FOR OBAMA: You mean Senator Schumer was opposed to George Bush, his nominees back then. No, look, of course there's going to be bluster from either side. Democrats when George Bush was president, republicans when Barack Obama is president, but as long as it just remains that bluster -- Senator Mitch McConnell back when George Bush was president said it was outrageous that democrats wouldn't let the nominee go forward so, Bush actually both times he got an opening on the Supreme Court, democrats passed his --
SMITH: All right, but Rich, is this just bluster? Is it bluster? Is there anything to this?
RICH LOWERY, NATIONAL REVIEW EDITOR: No. I hope it's not just bluster. Look, the senate republicans are not going to let President Obama remake the Supreme Court on his way outside the door, and they shouldn't. And if you look at that Chuck Schumer quote from '07, he was preparing the ground for opposing any new Bush nominations 18 months before President Bush left office. So the democrats, they can cry, they can whine, they can make fallacious constitutional arguments, they can say or do whatever they want, the answer from the republicans in the Senate should be no, no, no.
HANNAH: Senator, can I jump in real quick? Look, there's going to be hypocrisy on both sides of the political branches of government. You can take McConnell's statements back in 2007 and they're inconsistent with what he's doing now but let's think about this. What would, you know, Justice Scalia who fought his entire life for an originalist interpretation, a literal interpretation of the constitution.
Article 2 section 2 of the constitution says in no ambiguous terms that the President, the power to nominate the Supreme Court justice is vested in the President and the Senate advises and consents. Justice Scalia was a man who put patriotism and his principles ahead of politics and personality. I think, as much as he disagreed with Obama, he would want if he were alive today that President Obama nominate his successor --
LOWERY: Oh, please, Mark.
HANNAH: -- because he's a man of principles.
LOWERY: That is so -- please, that's pathetic.
HANNAH: Why not?
LOWERY: Don't use Justice Scalia's memory in that way.
HANNAH: I'm using the constitution.
LOWERY: Let's discuss the constitution. The president has the power to nominate. He can nominate anyone he wants at any time he wants. No one disputes that. But Senate has the power to consent and to block, in this case, the Senate should block --
HANNAH: It doesn't say block in the constitution.
LOWERY: It's an election -- but that's the way it works -- that's the way it works.
SMITH: Okay. So where does this -- so, Rich, paint the picture for us. Where does this go in this election year and the last year of President Obama's term in office?
LOWERY: Well, it should go nowhere. I mean, democrats are going to argue some terrible thing, but the country will survive a couple of 4-4 Supreme Court decisions, then this will all in effect be decided in a general election. And if Mark is very confident about how November is going to turn out, he shouldn't have any problem with this whatsoever because if democrats sweep the Senate and sweep the presidency, Bernie Sanders gets to make the nomination on January 2017.
SMITH: Well Mark, without a doubt -- without a doubt, this has changed the scope of the election. The passing of Justice Scalia.
HANNAH: Oh, absolutely. It brings into stark relief the stakes of who the next president will be because there will be other Supreme Court justices that are rotating out. In this moment, though, in the past 115 years we've had six times where a president has successfully nominated and the Senate has confirmed a Supreme Court justice. So to block justice --
LOWERY: But it's almost --
HANNAH: Justice Scalia's replacement, when there are 340 days left of this presidency is downright unprecedented.
LOWERY: It's almost...
HANNAH: Rich, just let me finish my point.
LOWERY: Oh, sure. Go ahead. HANNAH: The most it has taken is 125 days to confirm any Supreme Court justice nominee.
SMITH: All right, so Rich, Mark's making a point there's plenty of time until President Obama --
LOWERY: There's plenty of time.
SMITH: Rich, last word to you.
LOWERY: Sure. But almost all those cases is when the President and the Senate are the same party. When they're of opposing parties, like in 1988 as an example, when one was confirmed, but only after Bork (ph) was rejected, and you have to go back to 1880. So, there is no constitutional avocation (ph) on the part of the Senate to act. This is a president who has trampled on Congress' prerogatives again and again and legislated unilaterally, which is why both his immigration order and his Clean Power plan have been blocked by the court. The Senate owes him nothing --
HANNAH: Justice Scalia would be ashamed of what you're saying right now.
LOWERY: -- and he should get nothing.
SMITH: Well, in Justice Scalia's words, he said he doesn't want to be replaced by anybody who will undo his lifetime of work.
HANNAH: But he did encourage the nomination of Elena Kagan.
SMITH: It's going to be a --
LOWERY: It's because he knew it was going to be a --
SMITH: It's going to be a tough process and there's going to be a lot of fighting like we're seeing right now. All right, thank you to both of you tonight.
HANNAH: Thanks Sandra.
SMITH: All right, coming up, new trouble for New York's former love gov, Eliot Spitzer, after a woman accuses him of physical assault at the famed New York Plaza Hotel. And the race is getting uglier ahead of the South Carolina primary as candidates trade some serious barbs just five days out. Dr. Ben Carson is here with a personal call for civility and what we can expect going forward in the race for the White House.
BEN CARSON, R-PRESIDENTIAL CANDIDATE: You know, so many people said to me, you need to scream and jump up and down like everybody else. Is that really what you want? What we just saw? I don't think so. And, you know, I -- when I got into this race, I decided to look under the hood of the engine of what runs Washington, D.C. and my first inclination was to run away, but I didn't do it because I'm thinking about our children and the fact that we are the United States of America. We cannot afford to lose this election and we cannot be tearing each other down.
SMITH: That was Ben Carson at Saturday's Republican presidential debate bemoaning what he feels is the highly contentious state of today's politics, a message he reiterated Sunday morning in e-mail to supporters saying "the cancer of divisiveness is corroding our politics and the soul of our nation and if we don't fix it, nothing else matters."
Joining me now is republican presidential candidate, Dr. Ben Carson. Good evening to you, sir.
CARSON: Good evening.
SMITH: So how's it going? What was the point of this e-mail that you sent out to supporters?
CARSON: Well, you know, I want us to stop fighting each other and really we have some very substantial problems going on in this country. You know, we're about to go off a fiscal cliff. You know, the people who are coming behind us, you know, we're destroying their future. We're failing to take a leadership role on the world stage. We're alienating our friends.
SMITH: But when you say, Dr. Carson, when you say in that e-mail that the debate was ugly, it was vicious and not worthy of the American people, to whom are you referring was so vicious and ugly in that debate?
CARSON: Well, standing on the stage calling each other liars, screaming at each other. You know, in 2012, the republicans tore each other apart and I believe that was one of the reasons that President Obama was able to win a second term with a record that no one could have won on because, you know, we find a way somehow to let them win. We've got to begin to learn from these things. The issues that face America are so substantial and if we don't talk about, why can't we get to the issue of things like the fiscal gap so that people understand ---
SMITH: But Dr. Carson you just -- and I'm sorry to interrupt you, but you just lead (ph) off with the reason for the e-mail you wrote to supporters. You're saying that things are a mess, we're about to go off a fiscal cliff, it's messy, we're facing Isis. Every day this is a threat, at home and abroad and people say they want you to jump up and down. They want you to be more energetic.
And a lot of people say that's what they like about the front-runner, Donald Trump, that he showed that passion, he shows that energy. But you're looking at that as ugly and divisive. But isn't that just passion and them showing -- go ahead.
CARSON: There's a difference between passion and, you know, trying to tear your opponent down. There's a big difference between that. So, you know, you can be very passionate about something, and but remember, when we put these things out there, the democrats are going to use those in a general election.
They're just going to show those sound bites. They barely have to do anything if we tear ourselves apart. Somehow we've got to start learning and every single time it seems like the republicans find a way to snatch defeat out of the jaws of victory.
SMITH: All right. Dr. Carson, you say you're going to stay focused on the big picture. As you continue your campaign, we're looking ahead to South Carolina. Are you changing anything?
CARSON: Well, I don't think I need to change anything. Now, people are switching very quickly here in South Carolina and I'm looking for some big things. You know, so many people have developed their impression of me from the media or the lack of media. And once they get a chance to actually hear what I have to say, they change their minds.
Once they get a chance to go to my website, bencarson.com, and read the policies, they change their minds because they realize that this is a serious issue that we're dealing with. We can't have politics as usual. We can't have the same people as usual who claim not to be politicians but who really are.
SMITH: All right. Dr. Ben Carson, thank you for joining us tonight. Great to have you.
CARSON: Okay. Thank you, Sandra.
SMITH: All right, well, this election cycle has been dominated by a crop of unorthodox presidential contenders like we've never seen before. Or have we? Joining me now is so-called outsider from 2012, Herman Cain as your Fox News contributor and the author of "The Right Problems: What the President, Congress and every candidate should be working on." Mr. Cain, good evening and thank you for being here.
HERMAN CAIN, FOX NEWS CONTRIBUTOR AND AUTHOR: Thank you, Sandra. Happy to be with you.
SMITH: All right, so you know a little bit about what it feels like and what it's like in general to run as an outsider. What are these candidates feeling right now?
CAIN: Well, I happen to believe that two outsiders are leading most of the polls, Donald Trump and Ted Cruz because Cruz is considered to be an outsider, because Main Street USA is sick and tired of business as usual in Washington, D.C. They don't fix anything, and they don't work on the right problems as you mentioned which is the name of my book, so nothing gets solved. So, people are extremely frustrated on Main Street.
They are looking past all of the noise that some of the pundits like to focus on. They are looking for three things. They're looking for a leader, a fighter, and a winner. Now, you used the word passion. I agree with that. Sometimes that passion comes across as that person being a fighter and that is a good thing. I agree with Dr. Carson. He has nailed what part of the problem is for the republicans and he's also nailed that it needs to stop.
But unfortunately, too many of the political professionals advise their candidates to do that type of going after the throat of each other instead of that civility that he talked about.
SMITH: All right, so knowing what you know from your bid as an outsider, what would you tell those outsiders that are running right now and do you support any of them?
CAIN: I support several of them and I've made my support known four months ago so this is not new. Three of the people that I identified four months ago were Trump, Cruz, and Rubio and they're still leading in the polls by different amounts. Here's what I would advise them to do that would get the people on Main Street's attention.
Put bold ideas and bold solutions on the table. Whenever you attack because of some of this padded stuff or this personal stuff, pivot to that bold idea. I identified nine of them in my new book along with solutions, many of them agree with these. They're not that far apart. Ideologically they just simply need to talk more about it.
SMITH: But Herman, what do you make of the -- what do you make of this in- fighting though within the GOP and the idea that this could tear the party apart?
CAIN: I do agree that it could tear the party apart. I happen to believe that if the best sort of attacks -- those sort of attacks that cause three million people to stay home in the last presidential election and Mitt Romney lost. Now, I happen to believe that Barack Obama's people probably had some better tactics that was a part of it, but when three million people stay home, something is wrong.
And what's wrong is they get so turned off that they don't get energized and they don't go to vote. These outsiders are not just attracting the base of conservatives and republicans, they are attracting a lot of people who had given up, tuned out because of the type of things that we're now seeing amongst the republicans.
SMITH: All right. We have to leave it there, but at this point in the election do you believe an outsider will be elected?
CAIN: I believe an outsider will be elected at this point in the election. Yes.
SMITH: All right, Herman Cain, good to get your perspective sir. Thank you.
CAIN: Thank you, Sandra.
SMITH: Coming up, police have new questions for disgraced former New York governor Eliot Spitzer after a woman accuses him of choking her at one of Manhattan's ritziest hotels. You do not want to miss this report, next.
SMITH: Developing tonight, police are investigating allegations of assault at one of New York's most extravagant hotels involving former New York governor Eliot Spitzer. His political career as you may remember was cut short in 2008 by a prostitution scandal. Trace Gallagher is live with this story. Good evening.
TRACE GALLAGHER, FOX NEW REPORTER: Hey, Sandra. It happened inside one of the Plaza Hotel's Edwardian suites which runs about a thousand bucks a night. A 25-year-old Russian woman claiming to be Eliot Spitzer's girlfriend called 911 to say she had cut her own wrist. When police arrived Spitzer answered the door saying everything was fine. But after further investigation, police found broken glass and blood and took the woman to a hospital where she reportedly claimed that when she told Spitzer she was going back to Russia, he choked her, threw her to the ground and threatened her.
The former governor apparently showed up at the hospital the next morning wearing a skull cap saying his name was George. Police are still investigating but the 25-year-old decided not to press charges and has since hopped a flight back to Russia. And Spitzer's attorney says the woman has written an e-mail admitting there was no assault. Of course, Eliot Spitzer's political career came crashing down in 2008 when he was linked to a prostitution scandal and became known as the love gov and client number nine who wore black socks during his encounters.
One of the prostitutes, 22-year-old Ashley Dupres was paid more than $4,000 per visit. Another escort alleges that Spitzer once chocked her during a role playing tryst. The former governor's wife stood by her husband at first. They are now divorced.
SMITH: All right. Trace Gallagher, thank you very for bringing us that story. We'll be right back.
SMITH: Who says Monday nights aren't fun. Go to facebook.com/thekellyfile. Tell us what you think about the show. Tweet me at @sandrasmithfox. That's it for tonight. I'm Sandra Smith, and this is "The Kelly File."
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