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The Five

Obama rejects calls for Scalia successor to be picked by next president

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

KIMBERLY GUILFOYLE, CO-HOST: Hello, everybody. I'm Kimberly Guilfoyle, and this is "The Five."

We just heard from President Obama at a news conference out in Rancho Mirage, California, at the close of a summit with leaders of Southeast Asia. He took questions on the contentious issue of replacing Justice Antonin Scalia on the Supreme Court.

Republicans are vowing to block him from nominating a successor. Obama still says he intends to nominate a very well-qualified candidate in due time. Somebody who is indisputably qualified for the seat.

He also said those who argue the nomination should be made by the next president are reading something in the Constitution that isn't there.

Let's take it around the table. So Eric, any surprises in this discussion?

ERIC BOLLING, CO-HOST: I think -- well, there are a couple of things. I heard President Obama early -- say early on, the first question he was answering, he said the Constitution is clear. And I think he was referring to Republicans saying they're suddenly reading into it. Well, here's coming from a guy who's done nothing over the last seven years than read into the words of the Constitution. You think of the Commerce Clause with Obamacare; you think of the executive order on immigration; you think of the drone program, closing Gitmo. He went around Congress and the Constitution on all those so that's kind of weird.

I also noticed -- now I've been, yesterday I think the Republicans are making a mistake, saying that they won't hear any Supreme Court nominee. Just shut it down right now. I think that's not the way you go forward. Let President Obama nominate and then take your time and do what you've got to do. That's the way it's written. That's the way you should do it.

But President Obama gave a different -- OK, so let's just say they do. They say, "Nominate who you want." But when he said, "No, I didn't say I'm going to nominate a moderate," boy, he kind of drew a line in the sand. I know he qualified it with, "I didn't say what I was going to nominate, and a moderate -- didn't necessarily focus on a moderate."

But the point, he -- more divisive politics. I think he could have softened that tone a little bit. But my final observation is, I love the no tie and the flag on the lapel look for President Obama. You do well.

GUILFOYLE: OK. Greg, what do you think of his documents? Politically divisive? Or...

GREG GUTFELD, CO-HOST: First off, I feel that I have been given some kind of drug. Like I was drugged through rhetoric. It very hard for me to now remain focused. I feel like I have been roofied by President Obama's rhetoric. The question is...

GUILFOYLE: At least it was free.

GUTFELD: Yes, that is true. It's nice that he now cares about the original intent of the Constitution. That's fantastic. There was a question early about diversity. And I always think that they're so narrow- minded about this. You know, it's always about gender, sexuality, minorities. Who says it has to be an American? Why can't the nominee be an undocumented citizen? And with respect to PETA, why not a very bright giraffe? I mean, have we really gone far enough in the world of diversity? Have we, America? That's all I have.

GUILFOYLE: Thank goodness Katie is here.

KATIE PAVLICH, CO-HOST: The thing that struck me was President Obama reiterating this myth that Republicans have been obstructionist in Congress. For some reason they've not allow President Obama to have his judicial nominations. Here are the numbers.

Since President Obama took office in 2009, the Senate has confirmed 201 of his judicial nominations. Both at the Supreme Court level and at the lower levels. Two of those out of the 201 were Supreme Court nominations and confirmations, and they've only rejected two. So he has a pretty good track record when it comes to getting his nominees through, whether it's a lower court level or at the upper Supreme Court level.

The second thing that stood out to me was he was asked about the Democrat side of the election. He was asked about Hillary Clinton and Bernie Sanders. He said, quote, "Hillary was an outstanding secretary of state." Well, at this very moment, Hillary Clinton is being investigated, criminally, by the Federal Bureau of Investigation. Not only just for her mishandling of classified information but also on possible corruption charges. So I thought that that quote stood out especially, considering the situation surrounding that investigation.

GUILFOYLE: So Katie, just to tag onto the comments that you made, he clearly was making the case for him to make an appointment and to follow the process. He seemed to shy away from the suggestion of making a recess appointment that he would go by the books and, in fact, make the nomination and then, you know, have the person vetted and do the hearings.

But he said, everything is blocked, he said, no matter how qualified someone is or even if there is no ideological objection, suggesting that, just as a matter of principle, that the Republicans and conservatives there's try to block or filibuster without even considering qualifications. Even if it's somebody that they might not object to.

PAVLICH: Yes. Absolutely. And I think that that's something that President Obama continues to use in an election year to try and paint Republicans as the obstructionists who are not reasonable in terms of putting up a nominee. They're not willing to confirm anyone, which as I just explained, he -- the Republicans and Democrats have been more than willing to confirm the vast majority of what President Obama wanted in terms of the court.

GUILFOYLE: To use language like "the venom and rancor that has been going forward."

JUAN WILLIAMS, CO-HOST: The reality is that, even Chief Justice Roberts, as the president pointed out, has started the alarm about the absence of people on the lower appeals courts and the federal court benches. It is an outrage. And it's not just limited to the judiciary. It extends into the ambassadorships, which is something that's been of concern to me, that we have so many countries in crisis in terms of the relationships, in terms of what's going on with ISIS. No attention coming from the Republicans, because they have such scorn for this president.

I think, you know, it raises questions: why do they treat this president so badly? I mean, it's just outrageous.

GUTFELD: Clearly a race question.

WILLIAMS: I fear that race has something to do with it.

GUILFOYLE: Oh, come on, Juan.

(CROSSTALK)

WILLIAMS: But I'm just saying -- let me just say -- hang on, let me finish. The second thing that you said, Katie, was just so wrong. There's no -- nobody who says there's a criminal investigation of Hillary Clinton...

PAVLICH: The FBI confirmed it.

WILLIAMS: No, they did not. They said there's an investigation into her use of that server. The server. They want to know what went on...

GUILFOYLE: It's Hillary Clinton's server. The Federal Bureau of Investigation investigates crime.

WILLIAMS: But the big -- the big -- the big issue here is that I think in that press conference is so revealing to me. The president said the GOP now has gone so far to the right, so refusing to compromise or govern, it' s hard to see how you get things done. How the government functions.

GUTFELD: And he's so not a leftist ideologue. He's such a moderate...

GUILFOYLE: Right.

GUTFELD: ... President Obama.

GUILFOYLE: And the problem is, he tried to bring up the example of Justice Kennedy, saying that that was confirmed in the last year. But it wasn't. It was 18 months versus nine months left on his term.

BOLLING: He was nominated 18 months before...

WILLIAMS: In the last year a president...

GUILFOYLE: Nominated.

WILLIAMS: ... was confirmed. All I'm saying is confirmed.

BOLLING: Yes. OK, fine. He was nominated in the prior year.

WILLIAMS: Doesn't matter.

BOLLING: We have nine months left.

WILLIAMS: Oh, my God. You know what? You guys are on such thin reeds you're falling in the water. Geez.

GUILFOYLE: OK. You guys stay put. The venom and rancor on "The Five" will continue in a moment. Stay with us.

(COMMERCIAL BREAK)

GUTFELD: I never thought I'd ever say this on TV, but check out Hillary Clinton barking like a dog:

(BEGIN VIDEO CLIP)

HILLARY CLINTON, DEMOCRATIC PRESIDENTIAL CANDIDATE: One of my favorite, favorite political ads of all time was a radio ad -- rural Arkansas -- where the announcer said, "Wouldn't it be great if somebody running for office said something? We could have an immediate reaction as to whether it was true or not? Well, we've trained this dog, and the dog, if it's not true, he's going to bark."

I'm trying to figure out how we can do that with the Republicans. You know? We need to get that dog and follow -- follow them around. And every time they say these things, like, "Oh, you know, the Great Recession was caused by too much regulation." Bark, bark, bark! You know?

(LAUGHTER)

(END VIDEO CLIP)

GUTFELD: I've got -- I've got to hear that bark again.

(BEGIN VIDEO CLIP)

H. CLINTON: Bark, bark, bark! You know?

(END VIDEO CLIP)

GUTFELD: That is so my new ringtone.

Anyway, she did that during a campaign stop in Reno, where she attacked Republicans as untrustworthy. Pretty ironic, Hillary barking like a dog, given that she's being dogged by everyone, except Bernie, over rampant fibbery [SIC] regarding her e-mails, her server and mistreatment of classified information.

If you applied that joke -- training dogs to bark at lies -- whenever Hillary spoke, imagine what that would be like.

(BEGIN VIDEO CLIP)

UNIDENTIFIED MALE: Can we talk a little about Russia? You famously pressed the reset button. Are you embarrassed by that now? That gesture?

CLINTON: No. I thought it was a brilliant stroke.

(DOGS BARKING)

(END VIDEO CLIP)

GUTFELD: Wow, what good boys. Let's try this again:

(BEGIN VIDEO CLIP)

CLINTON: I did not e-mail any classified material to anyone on my e-mail. There is no classified material.

(DOGS BARKING)

(END VIDEO CLIP)

GUTFELD: They're like little furry lie detectors. Keep going.

(BEGIN VIDEO CLIP)

FORMER PRESIDENT BILL CLINTON: I did not have sexual relations with that woman.

(DOGS BARKING)

(END VIDEO CLIP)

GUTFELD: I'm sorry. How did that get in there? Anyway:

(BEGIN VIDEO CLIP)

CLINTON: I certainly do remember that trip to Bosnia. I remember landing under sniper fire. There was supposed to be some kind of a greeting ceremony at the airport, but instead we just ran with our heads down to get into the vehicles to get to our base.

(DOGS BARKING)

(END VIDEO CLIP)

GUTFELD: Yes. Even he could see through that one. More:

(BEGIN VIDEO CLIP)

GEORGE STEPHANOPOULOS, ABC NEWS: Did you tell them it was about the film? And what is your response?

CLINTON: No. You know, I understand the continuing grief at the loss that parents experienced with the loss of these four brave Americans. And I did testify, as you know, for 11 hours. And I answered all of these questions. Now, I can't -- I can't help it that people think there has to be something else there.

(DOGS BARKING)

(END VIDEO CLIP)

GUTFELD: I would have done more than bark. Finally:

(BEGIN VIDEO CLIP)

CLINTON: Well, I can't think of anything more of an outsider than electing the first woman president. But I'm not just running because I would be the first woman president.

I would not ask anyone to vote for me based on my last name.

(DOG GROWLING)

(END VIDEO CLIP)

GUILFOYLE: Is that Cujo?

GUTFELD: So , there you have it. Every time Hillary opens her mouth, her campaign goes to the dogs. It's enough to make the Baja Men cry.

(BEGIN VIDEO CLIP)

(MUSIC: BAJA MEN, "Who Let the Dogs Out"?)

(END VIDEO CLIP)

GUILFOYLE: Oh, my God.

GUTFELD: We just have a minute.

GUILFOYLE: Yes, it's official. The most immature show on television. I love it. But that was a beauty, the last one, "Who let the dogs out?" Yes.

GUTFELD: She was pandering to the Westminster Dog Show.

BOLLING: And didn't she know this was going to happen? This doesn't go off the top of her head. She said, "I'm going out there and talk about the story about the radio show and barking."

The campaign said, "That's a great idea. Go do it."

GUTFELD: She does do southern accents.

GUILFOYLE: Right.

WILLIAMS: She does black accents. She does all kinds of accents. That was hilarious.

GUILFOYLE: Dog pile it, dog pile it, Juan.

GUILFOYLE: That was your best ever. You know, I mean, politics aside, she opened herself to mockery, and Greg Gutfeld came right out.

GUTFELD: We never, ever found out who let the dogs out. Isn't that weird?

GUILFOYLE: Who pushed the video?

GUTFELD: Exactly. There you go. Hillary let the dogs out.

PAVLICH: She totally did.

GUTFELD: All right. Don't go anywhere. More to come on "The Five" when we come back.

(COMMERCIAL BREAK)

BOLLING: All right. Well, President Obama just recently, a couple minutes ago wrapped up a press conference from -- where was it? From Rancho -- Rancho Mirage, California, where he's speaking in front of the association of Southeast Asian nations.

Questions were answered afterwards, and they were primarily focused on the Supreme Court nomination process going forward. He did say he will nominate. He did call the Republicans obstructionist, and there was a question about whether or not he will nominate a moderate. He said he wasn't sure.

So let's bring it around, and K.G., now I've said here on the record...

GUILFOYLE: Yes.

BOLLING: ... I think the Republicans should listen to a nomination and not filibuster and not say, "Absolutely no way."

GUILFOYLE: Well...

BOLLING: Your thoughts?

BOLLING: Listen to the nomination. Hear, you know, the evidence presented, the background, the person is fully vetted, as you would with any nomination that the president would put forth. And then let's see what happens.

BOLLING: What do you think, Juan? Was he the one being the obstructionist there? Was he the one being divisive?

WILLIAMS: Not at all. He said he wouldn't do a recess appointment right now, that he trusts in the system and he plans to nominate someone. I think the question is, and it's very interesting to me that you guys are saying you're open to it. Because it's the system. It's what's in the Constitution.

But in Washington you hear so many people saying, "Listen, this is the balance of the court. And we're not going to allow anybody nominated by this president to take that seat."

So I'm hopeful that more people start to think like you.

BOLLING: Katie, all of a sudden President Obama wants to be -- he wants to interpret the Constitution by the word of the Constitution, instead of the living, breathing thing that he's been using.

PAVLICH: I think it's important to point out that this process is actually pretty cut and dry. I mean, the president has an obligation to nominate someone, and the Senate has an obligation to consider. Now, considering them doesn't mean bringing a vote. It doesn't mean holding hearings. It doesn't mean that they have any obligation to confirm whoever President Obama puts up.

And I think it's quite simple. So they can do what they want. And the power is with the Senate majority, which voters put there. So that's just really the issue that we're dealing with.

BOLLING: Good point. Elections have consequences.

GUTFELD: He says this reflects the rancor of the current way America is, but it's been like this forever. This always happens whenever a Supreme Court justice dies, which makes me think they should have an alternative way to deal with this. You know, actors have understudies. They should have that for justices. Have an understudy, a back-up that fills out the term of the president who chose him.

BOLLING: All right. We're going to have to leave it right there. But we will be right back.

(COMMERCIAL BREAK)

GUILFOYLE: Welcome back to "The Five." And on behalf of all my co-hosts here, we have a very special "One More Thing" today. Because one of our very own, Ainsley Earhardt, has been named as co-host of the important show, "FOX and Friends" on the FOX News Channel. She'll be batting lead- off for us every day. We're super excited for her. There isn't a person in the building that isn't happy for Ainsley. She's worked very hard, and I know Ainsley, back how many years ago, this was always your dream. Hard work, a great attitude, tremendous work ethic, has made it all pay off.

Congratulations to you and your family.

GUTFELD: Yay!

GUILFOYLE: "Special Report" is next.

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