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Special Report

Impact of Scalia's absence on future Supreme Court cases

This is a rush transcript from "Special Report," March 30, 2016. This copy may not be in its final form and may be updated.

(BEGIN VIDEO CLIP)

THOMAS DUPREE, FORMER DEPUTY ASSISTANT ATTORNEY GENERAL: There is no shortage of important cases on the court's docket. We have cases involving challenges to ObamaCare. We have a big immigration case coming up. We have other cases presenting constitutional issues. From my perspective I don't think it's likely that they're going to push too many cases, maybe zero, over to the next term. I think from the chief justice's perspective it is important to show that the court can and will function normally, even without a full complement of justices.

(END VIDEO CLIP)

BRET BAIER, ANCHOR: It's a big deal. There have been two cases decided on the four- four split already in the Supreme Court. Now there is a big property rights case going forward and owners fighting the rights to challenge the Army Corps in federal court over the definition of what is water that they can regulate.

We're back with the panel. Charles, as this battle over Merrick Garland continues, there are some big issues that are before court that could get thrown back down to the decision that was done at the appellate level.

CHARLES KRAUTHAMMER, SYNDICATED COLUMNIST: Conservatives were on the cusp of winning enormously important cases. They knew they would have had the majority with Scalia.
One of them is Obamacare, the Little Sisters of the Poor. The other is problem on immigration overreach by Obama.

BAIER: And the union case.

KRAUTHAMMER: And the union case which they would have won, meaning the anti-union forces, and it went the other way. So this just shows you how absolutely critical I think more than any other time that I can remember in the last 30 years the Supreme Court is going to be as important an issue as ever because it is so obvious how balanced it is. And it is so important whoever the president is going to make the decision.

I do think that McConnell is doing the right thing in trying to hold back. The one thing he has to worry about, if Hillary wins the election, Garland is probably the best justice that a conservative can get. I would hold hearing the morning after election day.

BAIER: He might get filibustered, who knows, by the Democrats.

Karen, does this stiffen the resolve of Republicans when they see these four-four ties and sometimes it doesn't go their way, or does it change the equation.

KAREN TUMULTY, THE WASHINGTON POST: I think it depends on who the Republican is. And you have seen a number of these senators who are facing tough races this year are not looking like they have such great resolve. And all of a sudden Mark Kirk had a meeting with Garland. So, I think that, no, I think it's in many ways the opposite, and especially after this union, this case that went the union's ways.

BAIER: Is this sending a signal, though, that Senator McConnell is afraid of his own caucus as far as the vote, if they did have hearings?

CHARLES HURT, THE WASHINGTON TIMES: Oh, I think without a doubt. When they first came out and said we are not going to do any hearings, I thought it was foolish and rash thing to come out and say until, as Charles pointed out, you know, it is a lack of confidence in his own conference that they will start falling, and then one thing leads to another and they wind up having to confirm somebody.

But if you stop and just imagine if these were more placid times and the Republicans were unified behind one nominee, you know, this would be a mighty, mighty issue for them. The issue of the Supreme Court has always been something that Republicans have been very good at using in presidential elections. It is usually a real barn burner part of the stump speech for the Republican candidate. And, you know, we'll see if that works this time. But they are going to have to get their party together pretty quickly to do that.

BAIER: Down the row here, does it crack? Do they eventually have hearings?

KRAUTHAMMER: No.

TUMULTY: No.

HURT: I don't think so.

BAIER: There you go. That's it for the panel.

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