Eugene Scalia speaks out on father's death; Vets discuss fallout over Trump's 9/11 remarks

On 'The Kelly File,' eldest son reflects on the Supreme Court justice's life


This is a rush transcript from "The Kelly File," February 16, 2016. This copy may not be in its final form and may be updated.

MEGYN KELLY, HOST:  Breaking tonight, the raging political firestorm over choosing the next Supreme Court justice gets hotter as President Obama weighs in on the fight.  

Good evening and welcome to "The Kelly File," everyone, I'm Megyn Kelly.  Just hours ago, President Obama stepping to the microphones and for the first time personally addressing the death of Supreme Court icon Justice Antonin Scalia.  The president saying that he will nominate someone to replace the late Justice Scalia, saying the nominee will not necessarily be a moderate.  The president also lashing out at critics, berating Republicans who say they will not even consider the President's potential nominee.  Mr. Obama telling GOP senators to do their jobs and rise above day-to-day politics.  


PRESIDENT BARACK OBAMA:  The constitution is pretty clear about what is supposed to happen now.  When there is a vacancy on the Supreme Court, the president of the United States is to nominate someone.  The Senate is to consider that nomination.  There's no unwritten law that says that it can only be done on off years.  That's not in the constitutional text.  I'm amused when I hear people who claim to be strict interpreters of the constitution suddenly reading into it a whole series of provisions that are not there.  


KELLY:  However, we heard a very different message from Barack Obama and his Democratic colleagues when George W. Bush was president.  We'll bring you that piece of history in a moment.  

Also tonight, we take a closer look at the life and legacy of one of the greatest legal minds in modern American history, Justice Antonin Scalia.  

We are joined tonight by a man that new Justice Scalia as a colleague, judge and friend.  Judge Ken Starr is here and then in his first interview since his father's passing, Antonin Scalia's son, Eugene Scalia, is with us tonight.  

But we begin with Republican Senator Jeff Sessions, who is a senior member of the Judiciary Committee which is responsible for considering the President's Supreme Court nomination.  Great to see you, Senator.  So, Barack Obama back when it was Justice Alito, Samuel Alito being proposed to the U.S. Supreme Court had a very different view of what he now says this whole process of confirming nominees, and what he said back then as he filibustered that nomination.  It wasn't just a no vote, it was a filibuster trying to decline a vote on this justice.  It was very different from what we heard today, which was today he said Supreme Court nominations are different, and we all understand they're different and they have to be treated with the respect they deserve.  Your thought.  

SEN. JEFF SESSIONS, R-ALA., JUDICIARY COMMITTEE:  Well, he's been totally hypocritical and inconsistent on that.  Justice Alito is a fabulous judge, he did a great job at the judiciary hearing and he filibustered and tried to deny him having a vote.  There is no doubt that by following what Mitch McConnell, our leader, Republican leader has said, we are not going to bring this nominee up this year.  He's doing exactly what Harry Reid would do if he were in the majority at this time.  I've seen these fights, I've seen them go on for quite a long time.  

Mitch McConnell used to serve on the Judiciary Committee.  He understands this completely.  So we're just not going to move this nominee because it's going to allow the next president to fill this seat.  It's a decisive seat on the court.  We've lost a great conservative, brilliant justice that will be impossible really to replace, but so I think the American people will be able to elect someone and that person will get to make the nomination.   

KELLY:  You know, Mitch McConnell sounded very different on this issue too.  There is hypocrisy on both sides but when you look at folks like Chuck Schumer who has completely reversed himself on the appropriateness of confirming Supreme Court nominees in an election year, he didn't want it to happen within 18 months of the presidential election, never mind 11 months where we are now.  And then listen to Senator Pat Leahy, here he is first in 2006, he's a colleague of yours in the Senate, he's a Democrat, and then listen to him today.  Watch.  


SEN. PAT LEAHY, D-VT.:  The Thurman rule in memory of Strom Thurmond, he put this in when the Republicans were in the minority which said in a presidential election year after spring no judges would go through except by the consent of both the Republican and Democratic leader.  We will
institute the Thurman rule.   


SESSIONS:  Well, there is no such thing as the Thurman rule.  The fact of the matter is a Supreme Court justice, let's have a vote.   

KELLY:  I mean, Senator, this is ridiculous, it's ridiculous.  So to those who are home saying, I don't know, I don't trust any of these politicians but when there's a vacancy on the U.S. Supreme Court, it's almost a year before we get the next president, why wouldn't you Republicans allow the president a hearing and give this person at least an up or down vote, what say you?

SESSIONS:  Well, I think it's the -- the President has had two confirmations to the Supreme Court, two very activist judges in my opinion that don't allow -- don't maintain their fidelity to the words of our constitution and laws and I don't think he's entitled to have a third one at this late date.  As a matter of fact, the tradition is not to confirm someone in the last year and as Pat Leahy, when he chaired the committee, has chaired the judiciary committee for many years, he just refused time and again to move nominees.  They never got a hearing, they never got voted on, many withdrew as time went by and they couldn't get a hearing.  So he's certainly -- so what we're talking about in this case is so important that the American people should be the one to decide which direction the Supreme Court will go.   

KELLY:  Senator Sessions, I've got to go but I have to ask you very quickly, in the presidential race on the GOP side, are you endorsing anybody yet?

SESSIONS:  I have not endorsed anybody yet.  I am watching it with great
interest.  It is an exciting event for sure.   

KELLY:  As are we.  All the best to you, sir.   

SESSIONS:  Thank you.   

KELLY:  Well, within one hour of the news that Justice Scalia had died, a man who served our country faithfully for decades some far left journalists took to twitter celebrating and mocking his death as his family is still in mourning.  

Trace Gallagher has that from our West Coast Newsroom tonight.  Trace.   

TRACE GALLAGHER, FOX NEWS CORRESPONDENT:  Megyn, to many on the right, Justice Scalia was a hero, a conservative stalwart who supported gun rights, the death penalty and tough immigration legislation.  His opposition to gay rights, abortion and ObamaCare made him a villain on the Left.  And though his passing was treated respectfully by most of the media, even death couldn't conjure respect in some far Left journalists. Rolling Stone's David Ehrlich posted this tweet, quote, "So, if the news about Scalia is true, how long do we have to wait until we can openly not be sad about it?"  

The managing editor for The New Yorker Magazine Silvia Killingsworth tweeted, quote, "Wish I could be a fly on the wall for Scalia's chat with the devil.  Died in a ranch in Texas, God bless America."  The writer Glenn Greenwald wrote, quoting again, "Don't even try to enforce the inapplicable don't speak ill of the dead rule for the highly polarizing, deeply consequential Antonin Scalia."  And the senior style editor for said this, quote, "The devil is back in hell!  Yay!"  

And while critics are not surprised by the tasteless tweets of those they consider  the fringe, they were surprised by this headline in one of the country's most influential newspapers, "The Washington Post" that boldly reads "Supreme Court Conservative Dismayed Liberals."  On that our senior political analyst Brit Hume weighed in with this tweet quoting, "Remarkable Sunday headline morning after news of Scalia death.  Just remarkable."  Others called it a helpful guide to how The Washington Post views the
world -- Megyn.   

KELLY:  Trace, thank you.

Joining us now with some perspective on Justice Scalia's legacy and the impact of his death on the court, Judge Ken Starr, president and chancellor of Baylor University in Waco, Texas, and member of the faculty of Baylor Law School.  

Judge Starr has argued 36 cases before the U.S. Supreme Court including before Justice Scalia as U.S. solicitor general.  He also served as a U.S. Circuit Judge for the District of Columbia and he is the author of "First Among Equals: The Supreme Court in American Life."  Judge, great to see you.  Thank you so much for being here tonight.   

Thank you, Megyn.   

KELLY:  I don't want to dwell on the hate that we just had recounted there, I'd rather go to the love and somebody who gets it.  Who is associate Justice Ruth Bader Ginsburg who could not have been more opposed to Justice Scalia ideologically.  I mean, right, they were on totally opposite sides of the spectrum but she came out and wrote the following just as one example.  "He was a jurist of captivating brilliance and wit with a rare talent to make even the most sober judge laugh.  It was my great good fortune to have known him as a working colleague and treasured friend."  
Your thoughts.  

STARR:  This is a great tradition on the judiciary that you can disagree, you can disagree pretty vehemently and you can like one another.  You can even love one another as friends and that's the way it was with Ruth Ginsburg and Alito Scalia.  And those of us who admired the core has celebrated that.  So, it's so unfortunate, it's tragic to see the ugliness and the death of civility yet again.  But the court is very strong and it will survive this, but we're going to be in for some very rough sledding.  But in terms of Justice Scalia's legacy, so much has wisely been said that he was a great friend of the constitutional structure.  He believed in we, the people.  He felt that we, the people should govern through the elective process and so he was very respectful of legislation.  

KELLY:  Uh-hm.

STARR:  At the same time, he was very protective of individual rights and I think this is being lost in the conversation.  He was one of the most vigorous proponents of freedom of speech.  He was a great advocate in the favor of our freedom as free people to not be subjected to unreasonable searches and seizures and the right of confrontation in the Sixth Amendment.  He was a very zealous protector of fundamental constitutional rights.   

KELLY:  That's the thing is when our report that you just heard from our reporters talked about how he was against abortion or against gay marriage, that's not quite right.  He was against judges legislating from the bench on those issues.   

STARR:  Exactly right.  He wanted there to be a great national debate, and frankly a debate within the states that marriage, for example, traditionally entrusted to the states.  So whatever his individual views were, he tried to set those aside and really to follow what he viewed as the overriding message of our constitution.   

KELLY:  Yes.   

STARR:  Which is let we, the people, decide.   

KELLY:  He didn't like judges wearing robes sitting from the bench trying to understand how people in Middle America see these issues, and he wanted those issues returned to them.  So let me ask you as somebody who's obviously knows much more about the Supreme Court than any of us, what is likely to happen now?  How do you see this battle shaping up?  First of all, do you think the Republicans are in the right to refuse to consider a nominee?  And second of all, what do you think is likely to happen with all the cases pending before this high court over the next 11 or so months?

STARR:  Well, it would be great if everyone could get together and say here is a consensus nominee.  Maybe a generation ago that could have happened.  But since the nomination of Robert Bork, it's been very, very ugly and so it's rare for someone like Scalia --  

KELLY:  Which is something the Democrats did to the Republican nominee of President Reagan.   

STARR:  Well, that's exactly right.  And so it's very unfortunate.  So failing that, then, it's a matter of power.  And what we're seeing is the President is exercising his power and now we see the Senate exercising their authority, their power to say we're simply not going to do this.  
Now, I will add this.  I think it will be unfortunate for the court for a nomination and a confirmation hearing to be caught up in presidential politics.  That's one person's view.  I think the court as an institution will be better, even though it's a little rough sledding when you've got eight members of the court and not all nine.  Yes.  There will be some decided judgments, four to four, affirmances, that's really unfortunate.  

KELLY:  Yes.

STARR:  But when you consider the alternative -- the alternative in light of the polarization of America and what we're seeing in the presidential campaigns is really very ugly.   

KELLY:  Judge Starr, it's great to see you.  Thank you for coming here tonight.   

STARR:  Good to see you, Megyn.  Thank you.

KELLY:  Also tonight, somber new pictures from inside the U.S. Supreme Court right here.  You can see the section of the bench directly in front of the late justice's chair draped with black wool, part of a tradition dating back nearly 150 years.  On Friday the justice's body will lie in repose in the Supreme Court's great hall.  It is a solemn honor for a man who is remembered for loving life and laughter.  

Here now in his first interview since his father's passing, Justice Scalia's oldest son, Eugene Scalia, a respected attorney in his own right.  Eugene, thank you so much for being here.  Our condolences on the loss of your father.   

SCALIA:  Thank you.  Thank you, Megyn.  Thank you for having me.   

KELLY:  How do you think you and your family will remember him and how do you think he would want us all to remember him?

SCALIA:  As I think you've heard others say, he had such a breadth of character.  He was one at the same time an extraordinary, intelligent person obviously, but very funny.  He loved opera on the one hand and hunting on the other.  We certainly in our family, the children and my mother, remember his humor, his warmth, his example.  He was my father.  

KELLY:  This is the two of you.   

SCALIA:  That's right.  That's a picture of my law school graduation.  And some in our family age more gracefully than others, but that's right, my graduation from law school which was obviously a very important moment for me to have my father there with me.  In terms of how others might remember him, you've had Senator Sessions and Judge Starr talk about his legacy as a judge, which is very important to our family.  He had a very strong view of the role of the court and role of the constitution.  

KELLY:  Uh-hm.

SCALIA:  The court's importance, but also its limited role and hopefully that's a lesson that he will bequeath to the country.  

KELLY:  Uh-hm.

SCALIA:  I hope you don't consider me selfish in saying that we like to
think that part of his legacy is us.   

KELLY:  His nine children.   

SCALIA:  His nine children.  And he was very proud, as my mother is very
proud of their 36 grandchildren.   

KELLY:  He had a great sense of humor and we talked a bit about, you know, Ruth Bader Ginsburg and how much she loved them even though they were so very different.  They had sat on a lower court together and she used to talk about how she would react when she read his dissents, you know, which were just always so biting and awesome and strong and fun to read and she'd talk about how as annoyed as you might be about his zinging dissent, he's so utterly charming, so amusing, so sometimes outrageous, you can't help but say, I'm glad that he's my friend or he's my colleague.  Do you think, you know, knowing your dad as you did, do you think he would, do you think he'd be caring what others are saying about him, and do you think he'd be caring about the nasty press or any of these remarks we've gone through?

SCALIA:  I think he got used to that.  So, let me say, first of all, that what has really struck my family and me and meant so much is all the wonderful things that have been said about our father over the last few days, including by Justice Ginsburg, who was a very close friend, among others.  It's meant a great deal to us.  You know, what we've suffered is what everybody suffers eventually, losing a parent, but to have so many people saying so many wonderful things is a special blessing.  We certainly appreciate that.  And the prayers as well.  In terms of what people are saying about his jurisprudence, like I said, he kind of got used to grief on that.  And what he cared about was the opinions that he wrote and joined.  And getting it right as a judge.  

KELLY:  Uh-hm.

SCALIA:  And that's what mattered.  And I don't mean to be disrespectful in saying that whether people agreed with him or not in the media or elsewhere
wasn't really important to him.   

KELLY:  Eugene, I'll tell you a funny story before I let you go.  I was a young reporter covering the Supreme Court and I idealized him as a brilliant legal mind.  You know, we of course read all of his opinions and decisions when we were in law school.  And I saw him as Chief Justice Rehnquist's funeral that I was covering for FOX News.  And he was walking right over to me and I thought, oh my God, this is him, I'm actually going to meet him.  Maybe he's seen my coverage, maybe he knows me from FOX News, maybe he's going to say that I get it.  Right?  And he comes right up to me and he says, Miss, would you please take a picture of me and this man right here, here's my camera.  


Oh, wait, this isn't that moment at all.  But you were the lucky one, his son, and yourself a brilliant lawyer.  In fact people say that Gene may even be smarter than Antonin Scalia was, which is saying something.  Thank you for spending the time with us tonight.  

SCALIA:  Thank you.  Thank you, Megyn.  

KELLY:  All the best to you and your family.  You see that, I mean, think about that.  Think about that Ginsburg-Scalia relationship and what message that could send to our country.  Look how they did it.  Scalia used to say if you can't get along with a colleague despite the fact that you have these deep disagreements, get another job.  And you know, you could take that, you could extrapolate that to a lot of situations in our country
today.  Good for them, a true public servant.   

And while this court fight is already a hot issue in the campaign trail, the focus today was Iraq and Donald Trump's allegation that President George W. Bush knowingly lied about the war and knew in advance about 9/11.  

Up next, a range of reaction from three men who put their lives on the line in defense of America.  

Plus, as we head into the South Carolina primary, conservatives are all over the road on where this race is going and FOX News senior political  
analyst Brit Hume is here on what that means for the coming weeks.   

Plus, Judge Andrew Napolitano weighs in on the potential lawsuit that could
change this entire race.   


DONALD TRUMP, R-PRESIDENTIAL CANDIDATE:  We will bring a lawsuit if he doesn't straighten his act out.  He's a lying guy, a really lying guy.  
Some people misrepresent, this guy is just a plain out liar.  




TRUMP:  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, so you still think he should be impeached?

UNIDENTIFIED MALE:  I think it's my turn, isn't it?

TRUMP:  You do whatever you want.  You call it whatever you want.  I want to tell you, they lied.  They said there were weapons of mass destruction.  
There were none and they knew there were none.  


KELLY:  That was Republican front-runner Donald Trump at Saturday night's debate attacking former President George W. Bush in remarks that have provoked a whole lot of controversy.  Radio host Mark Levin put it this


MARK LEVIN, RADIO TALK SHOW HOST:  The fact that he attacked George Bush as a commander-in-chief, not because he disagreed with him but he attacked him as a liar who knew there were not weapons of mass destruction in Iraq and said he was responsible for 9/11 and he was responsible for those to towers coming down, this guy sounds like code pink, sounds like a radical kook!  I know too many Gold Star families who lost sons over there.  To hear this
9/11 truther crap, which is pretty close to it, pretty damn close to it.  


KELLY:  Today it would appear Mr. Trump tried to soften his stance on the
former commander-in-chief, at least a bit.  Listen.   


TRUMP:  I don't know if he lied or not, I just know there were no weapons of mass destruction.  


KELLY:  Three men who served our country join us now.  Retired Staff Sergeant Robert Bartlett is an Iraq war veteran.  He was seriously injured by an Iranian bomb.  Michael Waltz is a former Green Beret who had multiple deployments to the Middle East, and served as a Vice President Dick Cheney's special advisor for South Asia and counterterrorism.  And Carl Higbie is a former Navy SEAL who did two deployments in Iraq.  He is a Donald Trump supporter.  Gentlemen, thank you all for being here and thank
you for your service.   



KELLY:  So, you know, let me start with you, Sergeant Bartlett.  Donald Trump comes out and says, it was a lie, that President Bush lied and got us
into the war in which you served us.  And your reaction to that.   

ROBERT BARTLETT, RETIRED STAFF SERGEANT:  You know, I joined after what happened.  When we were staging outside of Kuwait, that's when I joined.  I joined because I knew Saddam wouldn't back down.  It sounds like Trump is taking all of his points from the Liberal media in the past instead of using his research analysis or subject matter experts and that's why his comments are what they are.  The problem is that his comments hurt people.  
They hurt people who served over there.  They hurt the families that served over there.  Take into consideration that his words are affecting those 22 veterans we lose a day to suicide.  You know, what does it do to them?  
Those who are on the edge you know that are already struggling.  We don't need a second president who's already -- a second president blaming Bush, we've already got one.  

KELLY:  Carl, let me get your thoughts on it since you support Donald Trump.  And I mean, what do you make of these comments?

HIGBIE:  Well, I'm a huge supporter of Donald Trump and I don't think most vets that I know, at least the overwhelmingly majority that I've spoken to support Donald Trump because we believe in his conviction.  We strongly believe that he will do as he said.  He is so centric on veterans issues.  
Look, I mean, look at this guy.  He skipped the debate and, you know, he threw a veterans event where he raised $6 million.  This guy cares more about vets than any of the others guys on stage.  On one side you have Hillary Clinton who says, it's sexist if you don't vote for her and then she's married to the biggest sexiest in politics, and you have Bernie Sanders who would have been thrown in jail during the cold war for his policies and then you have the rest of these whackos on the Republican stage who have voted for a living with our tax dollars.  And you have someone like Donald Trump who's gone out there and given his own personal money to help veterans.  I mean, this is a guy that all veterans should get
behind, not be offended.   


KELLY:  Go ahead, Mike.   

WALTZ:  Megyn, I'm sorry.  Here is a guy in Donald Trump, I'm offended, by the way.  Here's a guy who went to prep school --  

HIGBIE:  You're a big boy, you'll get over it.   

KELLY:  Let him finish.

WALTZ:  Hey, calm down there SEAL -- that went to prep school, said he was in the military, dodged the draft, insulted a POW, and John McCain a true hero.  And I don't think Donald Trump can withstand a day of what John McCain went through for five years.  And then insults 43 and blames him as commander-in-chief.  The man who built the very security and intelligence apparatus that eventually led to the killing of Osama bin Laden and kept us all safe all to score points against Jeb Bush, who, by the way, led the Florida National Guard through multiple national disasters, has been endorsed by 40 admirals and generals, 12 medal of honor winners and put the only detailed plan that I know of forward to defeat ISIS rather than just saying let's bomb the crap out of them.  

KELLY:  Uh-hm.

WALTZ:  If I'm sent into combat again and I'm still in the reserves, I want to be sent in by a steady hand, a thoughtful hand, an experienced hand in the Oval Office, not a sound bite celebrity guy.  It scares me for me, my
men and my children.   

KELLY:  All right.  Let me get Carl to respond.  Go ahead, Carl.   

HIGBIE:  Well, I think that you know, you make some valid points with your concern should be addressed, but the fact of the matter is, Donald Trump is going to get the lawyers off the battlefield.  And the concerns you have where he blamed Bush for now, he didn't blame Bush for now -- Mark Levin tried to say he blamed him for now.  It did happen on his watch.  And did
we find, what, WMDs?  No.   

WALTZ:  I'm sorry.  Donald did not know what the nuclear triad was.  He doesn't even know what the nuclear triad is.  And you advocate his finger being on the nuclear button.  He's called Putin an ally and he doesn't even know our nuclear response and the components of it --  

KELLY:  Carl, do you, let me ask you this --  

WALTZ:  -- the three components of it.  He should do his homework.  

KELLY:  But let me ask you this.

WALTZ:  I'm sorry, but we can't afford -- we can't afford another President
who begins learning the job on day one like President Obama did.   

KELLY:  Carl, you seem to be accepting that Trump was not -- was not putting any blame on George W. Bush for 9/11.  Then why did he keep saying that it happened -- he said it happened under his reign, which of course our president is not a king.  It happened on his watch.  But why did he keep saying that?  Are you suggesting he wasn't trying to blame the President?

HIGBIE:  Well, Megyn, blame him or not, on your program you've always been committed to truth.  And the truth of the matter is, it did happen on his
watch, I have a measurable respect for George W. Bush.   

KELLY:  Right.  But why raise that?  What is the point that is being made if not to put some blame on him?

HIGBIE:  I think the point was trying to be made that he's setting himself apart, you know, he's setting Jeb apart from his brother, he's also saying that the war in Iraq was a mistake.  We fought it poorly.  I think we went in there with no plan --


HIGBIE:  And we went in there --  

KELLY:  All right.  I want to get back to Sergeant Bartlett who actually -- who did fight there and received, you know, some terrible injuries and is still out there fighting the good fight for the First Amendment and for the military and for many other things.  Sergeant, your thoughts on how this primary at this point in South Carolina, which has a lot of military in it, seems to be dividing the Republican field in a way we haven't seen in prior elections.  The Republicans usually stand united and not quite this divided when it comes to the military.  

BARTLETT:  Yes, I agree.  I think it's the temperature of the water.  We're seeing now how Republicans have made mistakes in the past.  How they have been divided in the past and what it's led to, what the problem is. Nothing can get done in Washington and the people are unhappy. They're not -- they're blaming the Republicans, they're -- they're blaming the Democrats and nobody is doing anything. They're saying a lot of things, but they're not doing anything. Let -- so let's choose .


KELLY: Let him finish.

BARTLETT:  . let's all well - so let's choose a president that picks good subject matter experts, that has good policies. If we're all talking about policies here, let's put policies .


BARTLETT:  . on the measuring table. Let's look at everybody's policies on how they look. I don't want to hear two Republicans fighting over what the past was. The past doesn't matter at this point. It's where we are right now and what we do with it.

Now, that's great that Trump supports the troops. I commend him for that.
I'm on the board of nonprofits trying to stop veteran suicide, so I appreciate that. But let's not use it as a political football where we're tearing each other apart. Let's talk about each other's policies and then defend your policies on the public arena. How about that?

Don't sit there and blame some past president for what they did. You won't know until you're in that seat, so don't act like the president now, act like the president you're going to be. Don't -- don't use the talking points of the president now is using. Use your own talking points with your policies and then prove it. And maybe they .


KELLY: Right.  I -- I got .


UNIDENTIFIED MALE: Megyn, I think -- I think .


KELLY: . I wish we had more time.


UNIDENTIFIED MALE: . the soldiers deserve better.

KELLY: May I just say that I respect all of you for being here and for your service. Thank you very much.

UNIDENTIFIED MALE: Thank you, Megyn.

BARTLETT: Thank you, Fox.

UNIDENTIFIED MALE: Thank you, Megyn.

KELLY: Well, just days before the South Carolina primary and conservatives are deeply divided on the road ahead for the GOP field. Our Fox News senior political analyst, Brit Hume, is just ahead on what this means.

Plus Marc Thiessen and Charles Hurt (ph) here on nasty turn in the Republican race and whether we are headed for a brokered convention. Stay tuned.


KELLY: Breaking Tonight, just four days to go until the South Carolina primary, and a new poll from American Research Group finds Donald Trump maintaining his lead in South Carolina, although Marco Rubio is gaining a bit in the poll followed by Cruz, Kasich, Bush and Carson. This poll taken entirely after Saturday night's debate, which had some of the most vicious attacks we have seen.


SEN. TED CRUZ, R-TEXAS, PRESIDENTIAL CANDIDATE: For most of his life, his policies have been very, very liberal. For most of his life, he has described himself as very pro-choice and as a supporter of partial birth abortion.

TRUMP: You probably are worse than Jeb Bush. You are the single biggest liar


All right. This guy lied -- let me just tell you. This guy lied about Ben Carson when he took votes away from Ben Carson in Iowa, and he just continues.

CRUZ: Donald has this weird pattern, when you point to his own record, he screams liar, liar, liar. If you want to go .


JEB BUSH, R- PRESIDENTIAL CANDIDATE: I could care less about the insults that Donald Trump gives to me. It's bloodsport for him. He enjoys it, and I'm glad he's happy about it. But I am sick and tired .


TRUMP: Who spent $22 million on this .

BUSH . I am sick and tired of him going after my family. My dad is the greatest man alive in my mind.


And while -- while Donald Trump was building a reality TV show, my brother was building a security apparatus to keep us safe.

CRUZ: Marco went on Univision in Spanish and said he would not rescind President Obama's illegal executive amnesty on his first day in office. I have promised to rescind every single illegal executive action, including that one.



CRUZ: . on the question .


SEN. MARCO RUBIO, R-FLA., PRESIDENTIAL CANDIDATE: First of all, I don't know how he knows what I said on Univision because he doesn't speak Spanish. And second of all -- the other point that I would make .




RUBIO: This is -- look this is a disturbing pattern now because for a number of weeks now Ted Cruz has just been telling lies. He lied about Ben Carson in Iowa, he lies about --


-- he lied about marriage, he's lying about all sorts of things.


KELLY: Marc Thiessen is a Fox News contributor and former speechwriter for President George W. Bush. Charles Hurt is a political columnist for the Washington Times. Guys, good to see you both.



KELLY: Let me start with you, Charlie, whether you think, you know, all this back and forth about he's a liar, he's a liar, liar, liar, nasty guy, and it wasn't just Trump using terms like that. You -- they -- they all seem to be getting down in the gutter. Is it turn-off for Republican voters?

HURT: Well, to be certain, it's entertaining, and I think that it is -- it's not just reporters who find it entertaining. You know, the numbers that we have seen tuning into all of the Republican debates have been historic and I think that a lot of that has to do with the unpredictable nature, in particular of Donald Trump.  And yes, sometimes it gets a little ugly, it gets a little nasty, but you know -- you know, politics has always been a fairly rough and tumble store - sport in America.


HURT: And more people tuning in for whatever reason is not a bad thing. I think, it's probably a good thing, but obviously, Megyn, you're exactly right, there are -- there are definitely those people who look at this and their stomach turns and they don't really .

KELLY: I don't -- I mean --

HURT: -- want to watch anymore.

KELLY: -- I'll say this, we had about a million fewer viewers than CBS did here at Fox News when we didn't have Trump in it and that debate was not quite as nasty. So, maybe there were -- maybe there are a million viewers who, you know, wanted to see that.

But, you know, the nastiness on the other hand, Marc, in South Carolina in particular is expected, like that -- that kind of like that's what we've been told like that's how it's going to go in South Carolina.

THIESSEN: Yeah, there's a saying that former GOP chairman of the state says that in Iowa and New Hampshire, they expect to see you in person. In South Carolina, they want to see you take a punch. South Carolina is a state that where -- where the politics are down and dirty. So, we expected to see nastiness in South Carolina. But I think there's a qualitative difference between some of the nastiness.

What we did not expect to see is the GOP front-runner for the presidential nomination of the Republican party standing on a debate stage and spouting conspiracy theories about 9/11 and whether Bush lied about WMD.


THIESSEN: That is very different from saying you're a liar, you're lying about my record. What he is saying -- these are not things that reasonable people can disagree on. They're -- they're conspiracy theories. They have been disproven. When I was at the White House, Megyn, every day there were people outside the gates in Lafayette Park banging on drums, chanting Bush lied and people died.

I never in my life thought that I would see the leading GOP candidate for the president of the United States saying that from the debate stage in South Carolina.

KELLY: Yes. Well, that's what Mark Levin was saying and -- and Medea Benjamin of Code Pink out today and said, she thought it was fantastic. She loved listening to Donald Trump say that stuff.  So -- so the GOP front- runner and Code Pinker on the same page, but the thing is, Charlie, people -- you know, pundits may say, "Oh, that's, you know -- but Trump's numbers are -- he's more than double.

Rubio or like Rubio is going up at 16, Trump still got more than double of what he does. They -- they -- they don't care and South Carolina is an open primary. So, Trump may be doing a smart play by getting in some non- conservatives there into the tent even though he's winning with conservatives, too.

HURT: And I think another thing that he's doing, Megyn, is that he is taking a very -- a very important question to -- to Republican voters right now, and that is does the Republican Party want to continue with the Bush dynasty? And polls show that -- that voters do not want to continue with the Bush dynasty and a big part of the Bush dynasty has been things like the war in Iraq.  And -- and it doesn't mean that the -- that the voters don't like George W. Bush.  It -- what it means is they're -- they get -- are getting a little tired of these -- of these wars.

KELLY: Yes. Marc, I'll give you the last word.

THIESSEN:  Well, that's not what he's doing. What he's doing is spouting conspiracy theories. What he said was that George W. Bush knew about 9/11, was warned before it happened, didn't stop it. He was told -- he knew there were no WMD in Iraq, and he lied to the American people to start a war. That is very different from litigating whether we should have gone into Iraq or not. Reasonable people can disagree on that. There is no reasonable person who can defend what Donald Trump said.

KELLY: What's amazing is there was so little talk about what happened under President Obama's watch when, you know, Vice President Joe Biden said, Iraq was going to be a great success story for the administration and then we left no troops behind in Iraq, and it went to hell but the -- but the blame was very much on -- on the shoulders of GWB -- George W. Bush at least on Trump's view on Saturday night. Guys, thank you both.

THIESSEN: Thanks, Megyn

HURT: Thank you, Megyn.

KELLY: Also tonight, Judge Napolitano is here on the threatened lawsuit that could change this race for president. Plus Brit Hume is next on the chaos heading into South Carolina.


KELLY: Breaking tonight, new questions about the state of the Republican Party, as many conservative voices struggle to come to grips with the front-runner, they refuse to accept and talk of a brokered or contested convention continues to surface.

Joining me now, our Fox New senior political analyst, Brit Hume. Brit, good to see you.  So, what you have is Trump dominating in the polls in -- in South Carolina as well, and yet when you look at his national unfavorables, they're sky-high and you appear to have two-thirds of the Republican Party that wants nothing to do with Donald Trump but is likely to see him as their nominee if things keep going the way they're going.

BRIT HUME, FOX NEW SENIOR POLITICAL ANALYST: Well, he's certainly on kind of a roll here, Megyn, and the win in New Hampshire gave him a lot of input is coming into South Carolina where he was already ahead. The latest polls taken since that debate, that brawl on Saturday night, suggest that he has not been harmed by his performance in that debate, widely criticized though it was, and that his lead is basically holding.

However, if you add up as you suggested a few minutes ago the number, the -- the number of votes or the amount of percentage of support for -- you take any three of that -- that group of four who are basically vying for the same space in the race, which is to say Kasich, Bush, Rubio and Cruz, it well -- it well surpasses the support going to Donald Trump. But if this keeps up, Megyn, and he continues to win these primaries with these pluralities in the mid-30s or -- or -- or about in the mid-30s, and we get to the point later on a month or more from now when we're beginning to have the winner-take-all races where if you win by, you know, you get 34 percent and win by one percentage point, and you get all the delegates.


HUME: He'd be on his way to simply taken the nomination easily. And that, of course, worries Republican leaders and worries a lot of conservatives.

KELLY: And these guys in the establishment lane, you sort of have the Trump lane, you have the Cruz lane, you know, true conservative lane, that was -- the cramp -- the Cruz, and then the last lane, which is the establishment guys, none of whom believe that -- that they're out. They all believe that they -- they still have a shot. And so if they ...


HUME: Well in .


KELLY:  . if they don't -- if they -- if they .


HUME: . what .

KELLY: . if that doesn't work out soon, Britt, their, you know, their chances get weaker and weaker.

HUME: Well, the situation is this. Rubio or Kasich or -- or Bush are all fighting basically for the same voters. And you add up their support, it's pretty substantial, but as long as they're still in the race, nobody is going to do very well .


HUME: . against Trump and possibly even against Cruz, although I think Cruz is fighting for many of the same voters as well. So, that's one more problem, and if that lane doesn't clear and Trump is running against, you know, a group of other candidates who are dividing up the opposition to him or at least they're all fighting for the same support, you know, he's got a clear path and that obviously is worrisome and they worry -- the great -- deeper worry they have is because of the negatives that you mentioned about him that you cited is that if he were nominated, he would be crushed in a general election.

And moreover, more than that, they're worried that if he somehow became president, that he would be unrepresentative of their party and would be an inexperienced, temperamentally unsuited leader to hold that job and would be, therefore, not an effective president. And so this is -- this is a party, which is to some extent in crisis about this, although -- although the -- although there's no real panic yet. It could come, though, later.

KELLY: Do you think there's a chance of a brokered convention or contested?

HUME: Well, I think it's -- remember this. There are about 400 delegates who are party officials or party leaders who are not -- who are free to support whomever they want. You need about, oh, more than -- a little more than -- about around 1,200 delegates to win. If it's close between Trump and somebody else at the convention and he doesn't have a majority of the delegates. Those votes could swing in a direction that would give the nomination to somebody else. But somebody has to get very close and that so far hasn't happened yet.

KELLY: Yes. that's the thing, and so while the other candidates who divide that two-thirds of the vote, Trump is sailing right through to the nomination which is fascinating to watch. Brit, pastel (ph) Brit, you know, we love to see you.

HUME: Thanks, Megyn.

KELLY: We have -- yeah. OK, so up next, you may have heard that Donald Trump has threatened to sue Ted Cruz over whether Cruz is eligible -- eligible to run for president. Does he actually have a case? Judge Napolitano has the answer next.


KELLY: Well, Donald Trump renewing his threat today to sue Ted Cruz of whether he's eligible to run for president unless Cruz apologizes to Trump for allegedly lying. Fox News Judicial analyst, Judge Andrew Napolitano is with us now and this lawsuit has how much chance?

ANDREW NAPOLITANO, FOX NEWS CHANNEL SENIOR JUDICIAL ANALYST: Zero. There are many, many technical obstacles to this lawsuit but in this of a political campaign, for him to say to his opponent, "Unless you apologize to me for something you said about me and to Ben Carson for something you did to him, I'm going to sue you. The federal courts would dismiss the suit on their own motion and charge Donald Trump the cost that the others paid to resist the suit." It's called frivolous pleadings. This is litigation 101.

KELLY: So, this is a -- this is a judge speaking and this is a judge who loved the other judge we talked about at the top of the hour, Justice Antonin Scalia who you knew well.

NAPOLITANO: It was one of the greatest privileges of my life that I got to become his personal friend and I want to say colleague because we spent many times together in front of audiences, debating and agreeing and disagreeing about the meaning of the Constitution. It was everything his son described. He was in private the same way he was in public, loud, large, witty, bombastic, funny, self-effacing, fiercely Catholic and absolutely traditionalist.

KELLY: Like another judge we know.



KELLY: Great to see you.

NAPOLITANO: You made my night.

KELLY: Condolences on the loss of your friend.

NAPOLITANO: Thank you.

KELLY: We'll be right back.


KELLY: Do you think the Republicans should a vote an on President Obama's Supreme Court nominee? Go to and on Twitter @megynkelly. Tell me what you think. Thanks for watching, everyone. I'm Megyn Kelly. This is "The Kelly File."

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