This is a rush transcript from "The Kelly File," March 16, 2016. This copy may not be in its final form and may be updated.
MEGYN KELLY, FOX NEWS HOST: Breaking tonight. That Super Tuesday II results are in. And with more than 30 nominating contests now behind us, the fight for the magic number of delegates is still very much up in the air.
Welcome to THE KELLY FILE, everyone. I'm Megyn Kelly. It is now down to three, count them, three candidates for the GOP. And roughly five, count them, five weeks to round out this race. Last night marking a resounding win for businessman Donald Trump in the sunshine state, followed soon after by Florida's own Senator Marco Rubio exiting this race. Ohio's Governor Kasich went home with his state's winner take all delegates and Senator Ted Cruz endured close seconds in Illinois, North Carolina and at this moment, Missouri. Though the show misstated still too close to call.
While the Texas senator did not win one contest outright last night, he has already won nine GOP contests, making him, in his own words, the only Republican with a chance to beat Donald Trump before we get to the Cleveland convention arena this July.
Joining me now, Texas Senator and Republican presidential candidate Ted Cruz. Senator, great to see you tonight. So, before we get to the delegates of last night, I want to talk to you about the news today, which is that Donald Trump has decided not to participate in the FOX News debate this upcoming Monday. You were ready to go. John Kasich was ready to go. Kasich said he's not going if Trump is not going and your response to Mr. Trump's decision?
SEN. TED CRUZ, R-TEXAS, PRESIDENTIAL CANDIDATE: Well, Megyn, it's great to be with you. And for whatever reason, it seems that Donald Trump finds you a very, very terrifying person. He skipped the debate in Iowa because you were going to be moderating. And I guess he doesn't like when anyone challenges him. You know, he was saying just a week ago that he was eager to get one on one with me. Well, this debate, the field is narrowed even more and he could have had a direct debate with me, and yet Donald apparently is ducking, he's afraid of being challenged. And I think that's because the race has shifted to a terrain that's not favorable for him.
Even though the media is ready to put a coronation on him, the reality is going forward, the closer we get to a one on one battle, the worse Donald Trump does. He's been benefited by having a wide feel, and Marco Rubio's decision to suspend his campaign last night was a bad blow for Donald Trump, because it means the opposition to Trump continues to unify and Republicans continue to unify behind our campaign.
KELLY: I know you've said -- first of all, he says he is just done debating but he also says that he agreed to do this important speech on Monday at APAC and you agreed to go there too now that we have no debate. You say you're taking the debate to him. A, what do you make of his excuse? And B, what do you mean by you're going to take it to him?
CRUZ: Well, his excuse is silliness, and it reflects his assumption that he thinks the voters can't figure out that he's not telling them the truth. Listen, APAC would have allowed him to speak at any time. It's a multi-day conference. He chose to speak right in the middle of the debate because he's scared to debate. And, you know, he just, he looks down on the votes. He thinks they're gullible will believe whatever he's saying. So I'm going to be in D.C. for APAC as well since Donald is running away from the debate. I'm happy to debate him there. If he wants, we can debate foreign policy, but the problem is, Donald doesn't do very well in foreign policy because he doesn't have even a basic modicum of knowledge.
You know, two debates ago, Donald explained that if he were president, he would be neutral between Israel and the Palestinians. That is a stunning statement. It's the kind of nonsense you hear from Hillary Clinton and Barack Obama. I'll tell you, Megyn, if I'm president, I will not be neutral. America will stand unapologetically with Israel and it says something about Donald Trump, if he can't tell the difference between our friends and allies. If he can't tell the difference between Israel and Islamic terrorists who want to murder us, that raises real questions about his fitness and his judgment to be commander-in-chief.
And so I'm happy to debate him in Utah where the debate was supposed to happen or D.C. or anywhere else. But I suspect Donald will continue running and hiding and basking in the protection from the network media that is trying to do everything they can to make him the nominee, because they know he's the one candidate on the face of the planet that Hillary Clinton can beat in the general election.
KELLY: Explain that? How has the media done that?
CRUZ: Well, the media has given him the equivalent of about $2 billion in free media. If you turn on the television at any given moment, it is a wall-to-wall infomercial. You know, when there were protests and speeches in Chicago -- the media ran every station just hour after hour after hour, a telethon for Donald Trump. I kept expecting Jerry Lewis to come out and make an ask for money. And they do it constantly. Every network. And the point I make, this is not an accident. And it's not the host. Listen, I don't hold it against the host, it's the network's execs, it's the suits in the suites who are almost all liberal partisan Democrats, they're ready for Hillary.
And they do everything they can to saturate the airwaves. Donald Trump practically goes to the bathroom and it gets carried live on network television. Every speech he gives, he does a press conference that's like watching the shopping channel. He's up there selling steaks and steaks knives and wine. The media desperately wants him to be the nominee, and as a result, they don't cover anything about his record, about the fact that he had a $1 million fine against him for hiring illegal aliens. You didn't see the media cover that. So, we brought it up in the debate and they never brought it up again. You didn't see the media covering the fact that his hotel down in Florida hires foreign workers instead of American workers because he can pay them less. You don't see the media -- when is the last time any of the network news have mentioned the fact that he refuses to hand over his tax returns?
CRUZ: The media is doing everything they can to cover up his background. You've seen no reporting on his multiple business interaction with members of the mob. You've seen no reporting of that. And every bit of that, Megyn, if he's the nominee, I guarantee you, September, October, November, every station they'll cover all of that aspect. That's how they give the presidency to Hillary Clinton. And it's why so many Republicans are uniting behind our campaign.
KELLY: I want to ask you about that.
CRUZ: Because at this point, we're the only campaign that has beaten Donald Trump over and over and over again and can and will beat him.
KELLY: Let's talk about the campaign. So, last night --
KELLY: You did not manage to win outright any state. Missouri is not official yet, but it looks like that is going to go for Trump.
KELLY: Proportional but still a win for him. You need to do two things according to the experts. Number one, they say the math is not there, you have to win 75 percent of all the states from this point forward which you're not going to do based on the past track record. No one is likely to do that. To win outright. So this thing if you're going to be in it is headed for a contested convention. So, you know, I wanted you to opine on that but I also want you to explain, you know, how you do that and emerge, if that's where it goes, with a winning coalition? Donald Trump today said, there will be riots if he gets to that convention and it is pretty close to the nomination and is denied.
CRUZ: Well, listen, no one should be surprised that Donald Trump is trying to stir up riots. I wish we had a presidential candidate that was bringing us together instead of encouraging such things. But let's talk about the math. Because a lot of people get the math wrong. To be the Republican nominee takes 1,237 delegates. There are only two candidates that has any plausible path to getting there, Donald Trump and me. Now, by the way, if Donald continues getting delegates at the same rate he has so far, he won't get to 1,237.
KELLY: That's true. Correct.
CRUZ: He needs to get 54 percent of the remaining delegates to get there. He hasn't been doing that. And he's been getting below 50 percent.
CRUZ: Now, for me to get to 1,237, it's true, I need to get 78 percent of the delegates. But here's the important thing to understand. The way the delegate allocation math works, you don't have to get 78 percent of the vote to get 78 percent of the delegates. Going forward, if I beat Donald Trump 55 to 45 going forward, we get over 80 percent of the delegates. That's how the delegate allocation formulas work. And one of the things to keep in mind, Donald Trump has done horribly in closed primaries. There have been 16 closed primaries, he's lost 10 of them, he's only won six.
KELLY: Now Florida was a big one.
CRUZ: Now, going forward -- huh?
KELLY: Florida was a big one. That was close and he killed there.
CRUZ: Well, it was, but going forward, of the 22 remaining primaries and caucuses, only four are open caucuses where Democrats can vote, the kind that Donald Trump has done well. But secondly, here is the important thing. Donald has a hard ceiling of maybe 35 to 40 percent. He can't go above that. He's proven over and over again. Head-to-head, not only do I beat Donald, but I beat Donald by double digits. The last polling that came out had me beating him by 13 points.
And what was critical about last night is Marco Rubio's decision to suspend his campaign. Marco was a good and talented man, he ran a remarkable campaign. And what we have been seeing all day today is Rubio supporters coming to us, unifying behind us, and we're welcoming Rubio supporters with open arms. That is very bad news for Donald Trump, because he has got a hard ceiling at 40. He benefited from us being divided, but we're unified now.
KELLY: Yes. And now the Trump train is looking very different than it looked just a couple of days ago. Senator, I got to run. It's great to see you as always.
CRUZ: Thank you, Megyn. God bless.
KELLY: All the best. So, Senator Cruz may be saying that this is a two- man race, but with nearly every candidate on track to fall short potentially of the magic number of delegates, we will turn to former Mitt Romney strategist Stuart Stevens, as well as former House Speaker Newt Gingrich, to talk about the possibility of a new candidate jumping in.
Plus, President Obama today made his pick for the nation's high court to replace the seat held by Justice Antonin Scalia. And two of the country's sharpest legal minds, Tom Goldstein and Jonathan Turley, are here tonight on the nominee and the high stakes fight that could remake the Supreme Court.
(BEGIN VIDEO CLIP)
PRESIDENT BARACK OBAMA: I simply ask Republicans in the Senate to give him a fair hearing. If you don't, then it will not only be an abdication of the Senate's constitutional duty, it will indicating a process for nomination and confirming judges that is beyond repair.
(END VIDEO CLIP)
ANNOUNCER: From the World Headquarters of FOX News, it's THE KELLY FILE with Megyn Kelly.
KELLY: Welcome back, folks. We heard Senator Cruz moments ago talking about the delegate hunt. And tonight, one of the most respected political watchers in America is predicting we will not have a GOP nominee until the end of the primary season or perhaps beyond.
Larry Sabato calling last night, quote, "Titanic Tuesday," suggesting that while Donald Trump had a good night, he did not seal the deal. Former Mitt Romney strategist Stuart Stevens and former House Speaker Newt Gingrich will join us in moments with their thoughts. But first, we go to Trace Gallagher in our West Coast Newsroom to break down the numbers. Trace?
TRACE GALLAGHER, FOX NEWS CORRESPONDENT: Megyn, when it comes to handicapping politics, the University of Virginia's Larry Sabato is in a league of his own over the past seven Congressional gubernatorial and presidential elections, his accuracy rate is about 97 percent, and now Sabato believes that Donald Trump who is dominated the primaries and caucuses so far, will likely carry a significant share of the remaining 19 states, but Sabato also points out that carrying a significant share may not be enough. Because for Trump to clinch the nomination, he needs 1,237 delegates, which means he would have to win almost 60 percent of what's left. That's a lot better than he's done so far. And come June 7th, when all the votes are cast, the 66 delegates John Kasich won in Ohio could be the difference in Trump not getting the nomination. Listen.
(BEGIN VIDEO CLIP)
LARRY SABATO, DIRECTOR, UVA CENTER FOR POLITICS: He's likely to get close, and it's possible that he actually gets to the magic number. But I would say the probability is, he gets close but doesn't go over. That's the way it looks today.
(END VIDEO CLIP)
GALLAGHER: But if he gets close to the magic number and leads his next opponent by several hundred delegates, Sabato, and many other analyst say, the GOP including the anti-Trump forces, should ban together to make sure Trump gets the nomination or risk big-time trouble. Watch.
(BEGIN VIDEO CLIP)
SABATO: Look, Donald Trump is saying that there will be, you know, riots in the streets. There could be a riot in the convention hall. I don't know. He's probably right, actually, given what we've seen so far. I don't think the Trump voters would take this lying down.
(END VIDEO CLIP)
GALLAGHER: Larry Sabato thinks that in the 40 days between the last primaries and the convention, the GOP will strike a grand bargain to nominate Donald Trump -- Megyn.
KELLY: Trace, thank you.
Joining me now with more, Stuart Stevens, founding partner at Strategic Partners and Media. And author of the upcoming novel, "The Innocent Have Nothing to Fear" which focuses in part on this very issue, a possibility of a contested convention.
Stuart of course, former top advisor for Mitt Romney. Stuart, good to see you. So what do you make of Sabato's take, that he did not believe even though Trump had a very strong night. And he can secure this thing prior to the convention?
STUART STEVENS, FORMER MITT ROMNEY CAMPAIGN STRATEGIST: I'm betting against Larry Sabato is a bad bet. I think he's probably right. We'll probably not get to 1,237. You know, I really don't think this is that complicated. People have actually thought about what the rules would be for a convention before, which is why we have all these rules. I think we ought to look at the rules, we ought to stick to the rules. I don't think we ought to do any fancy shenanigans to change the rules. But I don't see why these other candidates would get out if the other person -- Donald Trump hasn't reached the number he needs to get to.
KELLY: Uh-hm. Because they're putting their money, Cruz and even Kasich, on the second ballot. It goes to the convention, the first ballot is taken. No one has enough to get a majority. And then all hell breaks loose on the second ballot. Delegates are freed up and then it's anybody's ball game. Is that essentially how it goes?
STEVENS: Pretty much. Listen, it's basically an overtime and we decide big sporting events with overtimes all the time. You know, you don't say, well, look, I think I'm just going to walk off the field here. I think we ought to play it out. I think that there's compelling cases to be made that a majority of voters have not -- and Republican primaries have not supported Donald Trump. I think half of the delegates have been selected. I thought Senator Cruz earlier in the program made some excellent points. Donald Trump kind of wants to icebox this thing now and avoid debates. But listen, over half the voters haven't voted. I think they should have a voice in this thing and let's see how it plays out.
KELLY: When Trump says there will be riots if, you know, he doesn't get it, he goes to that convention 100 short and the next guy has 500 or 600, you heard Sabato a reasonable guy saying, he's probably right. What do you think?
STEVENS: First of all, you know, I referred to the Trump operation as a thugocracy. And I'll be darn if he doesn't try to prove me right every day. You know, in 1976, Ronald Reagan and Gerry Ford went to a convention and nobody was making threats about riots. You know, Ronald Reagan wanted to take America up to a shining city on a hill. It's like Donald Trump wants to take us into an alley and we're going to work it out. There's a unique responsibility to being a presidential candidate, particularly being a presidential frontrunner and a possible nominee. You don't go around talking about riots. Your job is not to incite people to violence, your job is to try to calm people down and take them through a process that we call democracy, where people vote instead of fight.
KELLY: Stuart, let me ask you this --
STEVENS: It's an absolutely disgusting thing that he's doing.
KELLY: Let me ask you this. Last night there was a lot of talk on our air about, if Trump becomes our nominee, what do guys like you do, what are people who are part of this never Trump movement do? Do they mean Never Trump? I mean, what would happen?
STEVENS: Well, listen, parties are things that are brought together for people of free associations. I'm not going to take the Trump walk. I'm not going to support Donald Trump. If there was a third party candidate who was viable, I would definitely -- and a conservative, I would support that candidate. I think a lot of others would, as well. But that's how democracy works. There's nothing in the Constitution about two parties or about --
KELLY: Even if it meant giving Hillary Clinton the White House?
STEVENS: Well, I don't know. I think the people have to decide how they're going to vote is a moral issue. I can't vote for Donald Trump. I can't belong to that party and cast my ballot that way. And I think a lot of people feel the same way I do. But it would be good if Donald Trump would maybe not try every day to prove us so right and going out and talking about riots just makes us feel better about not voting for him.
KELLY: Stuart, good to see you.
STEVENS: Good to see you.
KELLY: Well, our next guest says, the idea of a brokered convention is, quote, "childish nonsense." Newt Gingrich is the former speaker of the House and author of the book, "Duplicity." I like that Mr. Speaker.
It's good to see you. So, what do you make of what Stuart says? I mean, let's just start with that never Trump movement and guys like Stuart who, you know, hold their views in earnest and say, it's not going to happen, they're just not going to get behind him if you're gone to the nominee. Do you believe that?
NEWT GINGRICH, AUTHOR, "DUPLICITY": Well, they may mean it. And that means in effect functionally that they're helping elect Hillary Clinton, and let's be clear. Any vote which doesn't go to the Republican nominee is a vote to help Hillary Clinton and a very left wing Supreme Court. And I think that gets to be a big moral burden when you get into August and September and a lot of folks I think will start to come back to the Republican nominee if it's Trump. I said there would be no brokered convention, but that doesn't mean it's automatically Trump. And there are two viable candidates right now. You just had one of them on your show.
Ted Cruz has a real shot at this. He could become the nominee. Trump is the front-runner but he is not yet the nominee. And John Kasich is in a terrific position to be the broker who decides if Trump can't get all the way to 1,237 in this first round and now you've got 30 days of negotiating, and remember Trump did write "The Art of The Deal" --
KELLY: Between June 7th when the primaries and the caucuses and in end of July when the convention is held.
GINGRICH: You're right, it's actually about almost six weeks. In that setting, the question is whether Trump or Cruz is a better negotiator. Kasich will be empowered and by the way, Marco Rubio, who did not release his delegates, will also have a seat at that table. That's perfectly legitimate. My only point has been, one of the two people, Trump, Cruz, is going to become the nominee. We're not going to have some magic appearance in a brokered convention by somebody who has never run, never gotten delegates, never been part of the process.
KELLY: Somebody who parachutes in and says, it is underdog here to save the say. So how do you see this playing out? Because the problem for Trump at this point is that he's been getting, you know, between 35 and 42 percent generally in these states. Now they've been more candidates, right? Rubio just dropped out and so on. Now, we're down to three. Kasich isn't competitive in a lot of these states. So, his margin has been lower. But when you look back at Mitt Romney when he was running at this point, he was getting 60, 60 plus percent of all the delegates. There was the momentum behind and the party was accepting him. He had it. And what the Trump detractors say is, the same is not happening with Trump, and there's no way he's going to get 58 percent of the delegates from this point forward, given that dynamic.
GINGRICH: Well, the question is, does he have -- and we'll find out in a couple of key states. Arizona is a big deal in the near future. California is enormous. New York is a very big deal, that is Trump's home state.
GINGRICH: The question becomes, does he get so close, I mean, if he's at 1,100, it's pretty hard to stop him from getting 1,237. And you do get to a point where there's a winner's mystique. If you noticed, in the latest national poll, I think for the first time he crossed and got to 53 percent.
GINGRICH: Which is a real sign, there's this underlying momentum. The Republican base wants to beat Hillary Clinton. And they're about to turn and say, wait a second, this guy is probably going to be the nominee. Let's help him get to be the nominee. Let's start looking at the general election. I know that as a candidate. I watched thing starts to close around and favor Mitt Romney. Because people reached a conclusion Romney was the guy most likely to beat Obama, and so he said to the rest of us --
KELLY: He didn't have the negatives that Trump has. That you heard Stuart say, you know, I wish he would stop irritating us every day, or proving our doubts about him right. You know, at what point does Trump have to reach out to those, you know, 50 percent of the party that say, no? And sort of stop alienating them and start -- kind of bring them into the fold?
GINGRICH: Well, the sooner he does it, the better I thought last night frankly his comments were pretty good. He was funny and the only candidate he mentioned was Rubio who he praised. He thought about talking with Mitch McConnell and he made fun of himself talking about, you know, being at his golf course with negative ads being run against him.
KELLY: That's right.
GINGRICH: You know, I mean, that's a more relax happier and funnier version of Trump, which more is appealing. And if he could focus on that. Now, the other thing though about what he said is very close to what Larry Sabato said, you get a guy who has gotten millions of voters who are specifically voting against the establishment.
GINGRICH: If they get to Cleveland and they conclude that they're going to be robbed of the nomination, you're going to have an enormous wave of energy from all over the country showing up in Cleveland.
GINGRICH: And I think people shouldn't underestimate how much momentum Trump is building as the logical --
KELLY: You're raising a point, though. You're raising a good point because Donald Trump can be very charming. He can also be very irascible but when he's the charming Trump, he can charm anybody. I want to tell you that I think the name of your next book should be "Winning Mystique." I like that too. Almost as good as "Duplicity." Mr. Speaker, always a pleasure speaking with you.
GINGRICH: Thanks. Good to be with you.
KELLY: Well, President Obama today named his pick to be the next Supreme Court justice of the United States. And tonight, two of the smartest legal minds in this country will tell you what's at stake in this fight and what is likely to happen.
Plus, critics pouncing after Donald Trump names himself as the top foreign policy adviser, and Trump campaign adviser Stephen Miller is here on what to expect if he's boss becomes commander-in-chief. Well, a former Special Forces commander will join us to explain why he thinks that should never
happen. Don't go away.
KELLY: Breaking tonight. New political fallout after Donald Trump is again pressed on who will be his foreign policy and military advisers. A question we have heard a lot of him over the last six months. Watch.
(BEGIN VIDEO CLIP)
CHUCK TODD, NBC HOST: Who do you talk to for military advice right now?
DONALD TRUMP, R, U.S. PRESIDENTIAL CANDIDATE: Well, I watch the shows. I mean, I really see a lot of great -- you know, when you watch your show and all of the other shows and you have the generals...
MARTHA MACCALLUM, FOX NEWS HOST: It might give people an increase level of confidence if they knew who you were talking to.
TRUMP: Well, I can do that and I'm going to release a list in about two weeks. I'm going to be announcing a team in about a week that is really a good team.
I've been meeting with some tremendous people and I haven't made exactly my decision yet, but we'll have it in due time.
MIKA BRZEZINSKI, MSNBC HOST: Who are you consulting consistently so that you're ready on day one?
TRUMP: I'm speaking with myself, number one, because I have a very good brain and I've said a lot of things. I talked to a lot of people that, at the appropriate time, I'll tell you who they are.
(END VIDEO CLIP)
KELLY: Joining me now, Stephen Miller, who is a senior adviser for the Trump campaign and former top aide to republican Senator Jeff Sessions. Stephen, good to see you.
STEPHEN MILLER, DONALD TRUMP SENIOR ADVISOR: Hi. Great to be here.
KELLY: So, you know, and there ensued the endless mocking online and on Twitter that he's speaking to himself because he has a big brain and he knows, he said a lot of things, right? Which sort of begs the question of, is that what the cabinet is going to look like? Who are the national security guard advisers going to be?
MILLER: Well, I think it's fair to say that if Donald Trump is president, which we expect he will be that Donald Trump will be the person guiding the foreign policy. And that's the point that he was making. If you look at the last 15 years, he's been prescient on the major foreign policy issues that we're facing.
KELLY: But it's not like he was, you know, like a Hayden character who ran the CIA and ran the NSA.
MILLER: Yes. But, I mean, his point was...
KELLY: He's been a businessman. He needs some foreign policy advisers.
MILLER: Right. And somehow as a businessman he managed to see what all the people in Washington couldn't see. He saw it with the threat of Usama bin Laden, he saw it with the war in Iraq. He site two very big examples.
KELLY: Well, he's on record that as favoring that war because he was against it.
MILLER: Well, he was a private citizen and he says that he was critical of it from the very earliest stages.
KELLY: Well, we have him on tape saying that he supported that.
MILLER: And the public record shows that he was critical of it when he supported that. And that's a very big distinction between him and say, Senator Cruz who is reflexively interventionist. And that's a huge difference in this race.
But I do want to talk about who is advising, because that's really what we're here to talk about.
MILLER: Who is advising Donald Trump on foreign policy and that's my former boss, Senator Jeff Sessions, who is one of the most respected members of the Senate, obviously a frequent guest on your program.
Anyone who knows Jeff Sessions will tell you that he is the most straight shooting, sincere, honest, frankly, apolitical person you'll ever meet in Washington.
And so, about a week ago, Donald Trump appointed Jeff Sessions the chairman of his foreign policy advisory committee. I had the chance to talk to Senator Sessions and his military advisers today for about half an hour before coming here. And we discussed some robust foreign policy ideas. And I look forward of getting chance to talk with him about them.
KELLY: The thing about Trump is, you know, so, he says he likes General Jack Keane and so on. Then General Keane said I've never spoken to Donald Trump in his life. I've never -- so, he saw him on the shows and he like -- but at some point, he has to sit down with these people to actually see if the incoming.
MILLER: He sat down with Senator Jeff Sessions and he's spoken about these things at length.
KELLY: OK. But shouldn't there be some military folks in there?
MILLER: Senator Jeff Sessions has been for 20 years on the Armed Services Committee.
KELLY: So, it's all about Sessions.
MILLER: He's one of the -- well, the news that I'm here to tell you about tonight and that we haven't had chance to discuss is that Senator Sessions is the chairman of his foreign policy committee. And that is a major piece of news.
I mean who is Ted Cruz's guy? Who is John Kasich's guy? I can tell you that Donald Trump has chosen Jeff Sessions and Jeff Session has been meeting for hours now putting together a team of foreign policy advisers, military experts, intelligence experts.
KELLY: Any names you want to volunteer?
MILLER: I'm not making any news tonight. But the name that I want people to go home with is Jeff Sessions.
KELLY: OK. Let me...
MILLER: Yes, so, go ahead.
KELLY: Let me ask you this. Because Donald Trump one of the things people love about him is he's tough, right? And he's already come out with this ad against Hillary Clinton. He's focusing now on the general election, less so on the guys that he's running against in the GOP. And he has come out with this ad. Watch this.
(END VIDEO CLIP)
KELLY: I mean, you tell me whether that is what people love about Donald Trump. He does have -- does he do that stuff himself? You know, does he have just like a knack for how to get to the weak spot? You know, how do you exploit...
MILLER: Donald Trump is brilliant when it comes to getting to the weak spot. And of course, we've seen it throughout this campaign, in terms of you've had some very mighty and powerful politicians who have crumbled to nothing trying to going up against Donald Trump. I will be democratic and fair tonight and I won't name names with people who can't respond and it happened, but we all know who they are.
KELLY: They used to stand on the debate stage and they no longer do.
MILLER: Right. Yes. They no longer do.
KELLY: They were on the edge of the stage and then they just, well, they were gone.
MILLER: So, I might say that tonight that he's previewing just a sampling of how he might go after Hillary Clinton in a general election.
KELLY: And as he said, he hasn't even started on her.
KELLY: But maybe this is like -- this is like the palate cleanser not the appetizer or even anything.
MILLER: Right. It's a hors d'oeuvre.
KELLY: Yes. It's like the sorbet before you get going. Stephen, great to see you.
MILLER: Good to see you.
KELLY: Thanks for being here.
Here now with another perspective, Lieutenant Colonel Michael Waltz, who's a former Special Forces commander, senior fellow at the Foundation for the Defensive Democracies and author of "Warrior Diplomat, A Green Beret's Battle from Washington to Afghanistan."
Thank you very much for being here, Michael.
MICHAEL WALTZ, FORMER SPECIAL FORCES COMMANDER: Thanks, Megyn.
KELLY: So, your take first of all, on Senator Jeff Sessions stepping in arranging the national security advising team to Donald Trump?
WALTZ: Well, you know, let's look -- let's just look at the numbers here, Megyn. You have one senator and his adviser who you just had on. On the other hand, you have over 100 respected Republican foreign policy experts that have signed a public letter saying that they cannot morally and ethically support Donald Trump's candidacy, much less him as commander-in- chief. Why?
Well, let's look at his hateful rhetoric towards Muslims, 1.6 billion around the world, including many great Americans. Let's look for his cozying up to Putin, who you just saw in the ad, yet, Donald Trump thinks he's a great man.
Let's look at his advocacy of a trade war against China and let's look for just these wild swings. On the one hand, we want military intervention all over the world, 20 to 30,000 troops in Syria. On the other hand, we need to get out of the Middle East and invest in our infrastructure.
KELLY: Well, what about...
WALTZ: His foreign policy it isn't moored in principle, he's saying what the voters want to hear. And that's why you have so many experts in an unprecedented ways saying we cannot back the Republican nominee.
KELLY: Yes. That happened the day of our last debate.
KELLY: But what about Stephen's point, that he says Donald Trump has been prescient, was his word, on issues like the Iraq war, which he is on record of having supportive but he says it was a weak, you know, like I guess so. And then shortly thereafter was against. And that he did predict Usama bin Laden was going to come attack this country prior to 9/11. So, he has an instinct that will serve him well.
WALTZ: You know, I think shooting from the hip and gut reaction when it comes to these complicated, difficult issues overseas, particularly with all of the threats facing the United States from China and Russia to cyberattacks, to ISIS and Islamic extremism, to homegrown violent extremism, I don't think we can afford a commander-in-chief that's learning on the job and shooting from the hip.
And to date, even though he's leading a Republican nomination fight can only name one adviser. You know, and the thing that has me most disturbed, Megyn, as a military officer and a Special Forces officer is his insistence that the military will just do his beck and call, even if what he is advocating and what he is demanding constitutes war crimes.
KELLY: But then he walked that back the next day and he understands he says that he can't do that.
WALTZ: Well, I think maybe general or Senator Sessions informed him that he was advocating bombing civilians that the military actually has an obligation to say no.
KELLY: Before I let you go, quickly, Michael.
KELLY: That ad against Hillary Clinton, effective?
WALTZ: Well, look, I mean, nobody disputes the fact that Donald Trump is a master at spinning the media. I mean, Lord knows he spun the media now for the last eight months for hours and hours of free airtime by saying sensational things. But sound bites and a reality TV star do not make a commander-in-chief. America deserves better and our soldiers deserve better.
KELLY: Colonel, thanks for being here.
KELLY: Still ahead, what happens with the delegates who are pledged to people like Marco Rubio who have now dropped out?
Plus, the Republicans face a tough decision on the president's new Supreme Court pick, and two of the country's sharpest legal minds are next. You've got to hear what they have to say about the nominee. It's not what you are expecting and you won't hear it anywhere but here.
KELLY: Breaking tonight. A new battle erupting between the White House and Republicans after President Obama nominates Judge Merrick Garland to fill the Supreme Court seat once held by the late conservative Justice Antonin Scalia.
GOP Senate leaders have already signaled they will not consider any nominee, including this one, before Election Day. A notion President Obama objected to during his announcement today.
(BEGIN VIDEO CLIP)
PRESIDENT BARACK OBAMA: To suggest that someone as qualified as respected as Merrick Garland doesn't even deserve a hearing, let alone an up or down vote, to join an institution as important as our Supreme Court, when two-thirds of Americans believe otherwise, that would be unprecedented.
MITCH MCCONNELL, U.S. SENATE MAJORITY LEADER: The American people are perfectly capable of having their say, the Senate will appropriately revisit the matter when it considers the qualifications of the nominee, the next president nominates.
(END VIDEO CLIP)
KELLY: Joining me now, Tom Goldstein, he's the publisher of the web site SCOTUS Blog. He's argues dozens of cases before the U.S. Supreme Court. And Jonathan Turley, who is a constitutional attorney and professor at the George Washington University School of Law.
Thank you both so much for being here. Tom, let me start with you. What do you make of this pick, what do think Republicans should be making of this pick?
TOM GOLDSTEIN, SCOTUS BLOG PUBLISHER: Well, Republicans in truth ought to be doing cartwheels. This is as centrist, as moderate, as conservative a nominee as any Democratic president was ever going to put on the Supreme Court. That's why Orrin Hatch has supported him in the past.
But Republicans are standing on a really strong principle to their mind, and that is, this is the tipping point to the Supreme Court. And so, they really don't care who the nominee was, they were going to hold out as long as possible for the next election.
KELLY: Because they're hoping to put in somebody who looked a lot more like Justice Antonin Scalia under a Republican president, ProfessorTurley, which leads us to the possibility that the republicans might yet confirm Judge Garland, and you tell us under what circumstances they would do that.
JONATHAN TURLEY, CONSTITUTIONAL ATTORNEY: Well, it's certainly possible. You know, the -- Hillary Clinton could prevail in the presidential election and the Republicans could look at Judge Garland and prefer the moderate they know than the liberal they don't and go ahead and move forward with the nomination during the Obama administration and secure the seat.
Now that will require them to walk back to some extent. That would not the president selecting the nominee. But in the city those types of calculations are made.
KELLY: That's fine.
TURLEY: So, I think that -- well, you know, the other thing is that, you know, Mitch McConnell may also realize that Republicans have more skin in the game than Democrats. They have more reason to come out in election if this is still a pending matter.
It is certainly true that he could have a transformative effect. He is a moderate. But he is going to beat the left Scalia because of where Scalia was.
KELLY: Sure. That's right.
TURLEY: And you know, Mitch McConnell may believe that, you know, they shouldn't just give this up. That it may be a rallying point for the general that they need.
KELLY: Tom, they will do no better if Hillary Clinton becomes the next president. They can't -- there's no way they'll do better than Judge Garland. Not a chance. So, they may be open to this guy if she wins the election. But the question is, what they are going to get. If they wind up with Judge Garland on the court what are -- what are the issues that might be potentially problematic to the GOP that he might stumble on confirmations?
GOLDSTEIN: Well, they should realize that it's possible that the president will withdraw the nomination and so they may still get the more liberal nominee but conservatives are very concerned about it.
KELLY: Poor Judge Garland.
GOLDSTEIN: Yes, exactly. He could get left out there hanging. You're talking about in critical issue like abortion, affirmative action, religion, gay rights, all of the major social issues at the Supreme Court are very closely divided. Justice Scalia when the conservative had the majority was obviously central to that. He wasn't extremely conservative guy but he was one of those five. And you lose that vote you can lose the Supreme Court. That's what conservatives are really so very concerned about is a quarter century of what will happen in the Supreme Court.
KELLY: So, Professor Turley, you're telling me that this guy, so he had an emotional day in the Rose Garden today, that President Obama could yank the rug out from under him if Hillary wins in that lame duck period between November and January and say, Judge Garland, my apologies, you're out of here, I'm going far left and I'm going with somebody in their 30s unlike you who was in the 60s. Watch him today. There was an emotional moment. Watch it.
(BEGIN VIDEO CLIP)
MERRICK GARLAND, U.S. COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
JUDGE: This is the greatest honor of my life, other than Lynn agreeing to marry me 28 years ago. It's also the greatest gift I've ever received.
(END VIDEO CLIP)
KELLY: It's amazing to see such a respected jurist, you know, emotional like that, kind of touching. But could President Obama be so mean?
TURLEY: I actually don't believe that he could be so mean. And I think many of us would really be, you know, really repelled by that scene. I mean, this is his -- this is Judge Garland's third time. It's sort of like being third on a match. It's not a lucky place to be, particularly when you find yourself between with these types of forces. I think that people are going to demand fair treatment for him.
But you know what's interesting, though, is that I don't want to discount one aspect that is sort of a live torpedo in the water for Judge Garland. There's things for liberals not to like about him, certainly conservatives not to like.
But his vote on the precursor to Heller when he asked for it to be reconsidered, many people believe that he was opposed to the ultimate decision in that case, and Heller is gospel for conservatives.
KELLY: That recognizing an individual right to bear arms.
TURLEY: That's right. Now, you know, you could have the NRA's score this vote. You could have the NRA saying we think that he's a nonbeliever, and you vote for him, you're voting to endanger this key case. That could be a real game changer.
KELLY: He's unquestionably qualified, Tom. But we have got on the state where that no longer gets you through. Judge Scalia was qualified; he got 98 to 2 in the Senate, 99 to 0 because a couple of people were absent and no longer. They look at you ideologically now.
GOLDSTEIN: Yes. That's the only lens right now. This is power politics. And it's because the Supreme Court has itself used so much power that is it just like every institution in town. And so, the control over it is an enormous prize.
KELLY: Wow. Fascinating. I love talking to you, guys. The smartest -- the smartest people in the legal profession, you know, with the exception of all the other lawyers we have on the show as well.
GOLDSTEIN: With the exception of you.
KELLY: At least equal. Great to see you.
GOLDSTEIN: Thanks, Megyn.
TURLEY: Thanks, Megyn.
KELLY: Coming up, Donald Trump now has more than 600 delegates. Ted Cruz more than 400, but what happens to the hundreds who signed up for Rubio, Carson or Fiorina? That's next.
KELLY: So, now that Florida Senator Marco Rubio has suspended his campaign, what happens to his 170 delegates? Trace Gallagher knows. Trace?
TRACE GALLAGHER, FOX NEWS CORRESPONDENT: Yes, Marco Rubio had by far, the most delegates with 169, Megyn. Those delegates don't disappear but in a contested convention they also can't be gift wrapped or handed to another candidate.
For example, Marco Rubio's delegates are from 20 states and Puerto Rico. But 134 of those delegates are bound, meaning their states require them to vote for Rubio on the first ballot even though he's no longer in the race.
On later ballots, they can vote for whomever. Thirty five of Rubio's delegates are unbound. So, when Rubio dropped out, they became free agents who can vote for anyone. And that makes them extremely valuable to the campaigns because if the candidates can't hit the magic number of 1,237 the next best thing is gather enough free agents to win on the first ballot.
Which is exactly what happened back in 1976 going in to the convention, Gerald Ford didn't have the majority but he did have a slight lead over Ronald Reagan and by promising the delegates, things like White House visits and other goodies, Ford was able to pick up enough support to win on the first ballot by 60 votes.
Cruz and Kasich don't have the luxury of offering presidential perks but they could offer delegate things like travel expenses which is legal, Megyn.
KELLY: This is why Trump had those steaks and all that Vodka and wine out there. Trace, thank you. We'll be right back.
KELLY: Getting a lot of mail on Twitter and Facebook on our session with Ted Cruz. Do you believe he has a realistic path to the nomination? Facebook.com/thekellyfile. Let me know. I'm Megyn Kelly. Thanks for watching. This is The Kelly File.
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