First 100 Days

Turley discusses leading contenders for vacant SCOTUS seat; Sen. Lee: We're going to make sure this nominee is confirmed

This is a rush transcript from "The First 100 Days," January 31, 2017. This copy may not be in its final form and may be updated.

MARTHA MACCALLUM, FOX NEWS HOST:  Breaking tonight, we are one hour away from the announcement that could begin to change the face of the Supreme Court for decades to come.  This decision tonight from President Trump could set off a battle that may bring us back to the days of the Clarence Thomas hearings.

Welcome, everybody, to "The First 100 Days."  I'm Martha MacCallum.

So there is the White House. Just after 7:00 p.m., inside, they are busy preparing for a very big moment for them.  We are told that will happen shortly after 8:00 local.  And President Trump will step in front of the microphone in the east room to unveil his choice.

Now, the two leading contenders appear, we should say, to be at this point, Judge Neil Gorsuch of Denver and Judge Thomas Hardiman of Pittsburgh.  Both are favorites among conservatives to fill the seat that was once held by the late Justice Antonin Scalia, who died about a year ago.

But before that choice has even been named, some Democrats are already threatening to block this nomination no matter what.  They are accusing Republicans of stealing the seat because they refused to grant President Obama's nominee, Merrick Garland, a hearing at all.  We're going to examine all of this tonight.

And in moments, Utah Senator Mike Lee will be joining us.  He was also on the president's list of 21 that was released in the summer.  We will also be joined by Charles Krauthammer.  But, first, let's talk to Shannon Bream, reporting live tonight as she has throughout the day from the steps of the Supreme Court.

Shannon, good evening to you.

SHANNON BREAM, FOX NEWS CORRESPONDENT:  Hi, Martha.  As you mentioned, we are down to two federal judges.  So let's talk a little bit more about them.

Judge Neil Gorsuch.  He is the one with a sterling resume.  You look at him on paper and his friends and supporters say in practice as well.  He went to Columbia, to Harvard, got a doctorate at Oxford.  And he is very well-respected.

Here is a little bit about his feeling on Justice Scalia.  He was giving a speech last year at Case Western Reserve University School of Law in Cleveland, Ohio, and he talked about judicial philosophy, praising Justice Scalia and saying this.


JUDGE NEIL GORSUCH, SUPREME COURT NOMINEE:  As Justice Scalia put it and it rings true to me, if you are going to be a good and faithful judge, you have to resign yourself to the fact that you are not always going to like the conclusions you reach.  If you like them all the time, you are probably doing something wrong.


BREAM:  Yes, so, he says, you shouldn't be about politics or pleasing family or friends or party or any other particular ideology.  You should stick to the facts, stick to the law, make your decision that way.

We have another federal judge in the mix as well. Thomas Hardiman. He's got a personal connection to the Trump family because he's sit on the bench with the president's sister on the Third Circuit.  He has a little bit of a different story.  He went to Notre Dame and Georgetown.  He'd be the only non-Ivy Leaguer on the bench.  He put himself through college and part of law school scholarships also by driving a taxi.

He also has a very specific judicial philosophy.  Here's a bit of what he said in 2006.  His Senate hearing in confirmation to his current seat.  He said, "Our role as judge is to interpret the law, not to inject our own policy preference.  So our task is to give an honest construction to what laws are pass by the legislature.  I have no hesitation in applying the law regardless of what I might think about it.  I think any good judge recognizes his or her place in our constitutional government and that place is not to upset the will of the people as expressed through their elected representatives."

So Martha these are words that ring true and well to conservatives who are excited about both of these picks.  They are a little worried that their records on abortion is a bit thin, but otherwise they seem very excited about either these potential picks.  Both of them easily passed the Senate back in 2006, 2007 with no opposition.  And that means a lot of the senators who were there then, including top Democrats like Senate Minority Leader Chuck Schumer and Diane Feinstein, all they were OK with him then and they will be back there on The Hill voting again on possibly one of these two.  We will know soon.

MACCALLUM:  Great point.  Thank you, Shannon.

So joining me now, constitutional law expert and professor at George Washington Law School, Jonathan Turley.

Jonathan, welcome.  Great to have you with us tonight.


MACCALLUM:  So, first of all, what do you make of the fact that this is, you know, an evening event.  Usually, we see these things take place during the day and that we are told that both of these gentlemen are in the White House vicinity.

TURLEY:  Well, the last part of that is not uncommon.  There is an aspect of theater to this.  Presidents don't like the media to get ahead of their skis on a question like this.  They often bring in two nominees just to keep people guessing a bit.  Doing it in the evening is something of a surprise.  It drives the media crazy, which may be part of the point here.

This is usually something that you do before that final news cycle in the day to allow people to cover an evening news.  That's obviously not a priority here.  So the timing is different.  But so much else is different, as well, in this administration.

MACCALLUM:  What do you think of these two men, Jonathan?

TURLEY:  They are very different in some respects and not so different in others.

Gorsuch is an intellectual leader.  He fits the bill for those people that view Scalia as the loss of an intellectual icon.  Gorsuch has that depth of analysis that you see in his opinions.  He is a true sense of his jurisprudence.  So he will come to the court with a very strong record.  A very powerful writer and a very considerable intellect.

Hardiman is very well-respected.  Many people think of him more as a sort of Sam Alito.  Very consistent.  He is not necessarily viewed as one of the intellectual leaders of the judiciary as a whole, but is still viewed as extremely intelligent man.

He has a wonderful background.  You know, he drove a taxi to go through Georgetown Law.  And, quite frankly, the fact that he is a Georgetown law degree is really appealing to many people.

You know, we have had a lock out of anything but Yale and Harvard Law grads.  And in a nation that leads the world in legal education that has been very insulting and a little bit embarrassing that we have this exclusion of every other school.

But they are different in a sense of what you want to get out of them.  I think that Hardiman is sort of like Roberts in a sense.  He is sort of, if you are kicking the tires of nominees in the show room, he is that reliable, family van for conservatives.  He will get you where you need to go.  No surprises.

Gorsuch is more of a rare top roadster.  He has the ability to be a powerful intellectual leader on the court.  I think Hardiman does, too. But Gorsuch has been that more so, I think, on the appellate court.

MACCALLUM:  You know, as you look at this, there were 21 people on that list.  Is there anything in your mind that suggests that maybe he will surprise us tonight?  Maybe he will pick somebody that we are not expecting?

TURLEY:  Well, there is all these rumors swirling around Washington right now, which is really --

MACCALLUM:  No, that never happens.


TURLEY:  There are even rumors that he's going to appoint his sister, who is the colleague of handyman.  Hardiman is believed to be an inside candidate because his sister really likes him.  It is, it is really, truly Machiavellian in terms of some of these theories.

The fact is that all three of these judges, including Pryor, are very well respected.  I have a personal attachment to Pryor because we clerked together on the Fifth Circuit.

He appears now to be not one of the two front runners.  But Gorsuch and Hardiman are extremely intelligent and well-respected judges.  It's going to be hard for Democrats to go after them.

It sounds like Gorsuch has the advantage.

MACCALLUM:  It sounds like that's what they have in mind.

TURLEY:  Well, he is as close as you could to sort of conservative aristocracy.  You know, his mother was a very famous EPA administrator. The first woman in that position.  She was involved to some of the Reagan controversies.  He has an absolutely impeccable resume.  It will be very hard to attack them.

But what I think you want to look for is the first 24-hour period of how this will play.  With Bork, Kennedy came right to the floor and started painting Bork as an extremist.  And the mistake at the White House made with Bork is they let their first 24-hour cycle get by.  And that's when attitudes solidify.

MACCALLUM:  I don't think that's what's going to happen with this White House, Jonathan.  Do you?  I don't think they're going to let 24 hours go by if they feel like there is something that needs to be counterattacked here, but we will watch.  We're going to talk to you a little later.  Thank you so much for being here.

Jonathan Turley, great to see you tonight.

TURLEY:  Thank you.

MACCALLUM:  So as we await this big announcement from the White House, tonight, Charles Krauthammer will join us on the battle that is to come after the pick.  And Senator Mike Lee also will join us after the break from the White House, where he is expected to be with President Trump later tonight when that pick is announced.

Plus, for the first time, Secretary John Kelly of Homeland Security, addressed Americans infuriated by President Trump's executive order on travel into the United States from countries that have ties to terror. Shedding new light on what it really means for refugees, David Wohl and Brian Fallon here to take that on right after this.


MACCALLUM:  So we are waiting President Trump's announcement of his pick to fill the Supreme Court vacancy.  It's going to happen in about 45 minutes from now.  And while President Trump's Supreme Court list has been narrowed down to two, we believe at this point, it did once feature 21 people on that list.  One of them was Utah Senator Mike Lee, a member of the Senate Judiciary Committee and a former Supreme Court clerk for Justice Samuel Alito.

The senator joins us from outside the White House, where soon he will be inside helping to be part of the announcement that's going to happen.

Senator Lee, welcome.  Great to have you with us tonight.

SEN. MIKE LEE, R-UTAH:  Thank you, Martha.

MACCALLUM:  So do you believe it's down to these two individuals?  Hardiman and Gorsuch?

LEE:  Say that again.

MACCALLUM:  Do you believe that it's down to Hardiman and Gorsuch?

LEE:  Yes.  From everything we've heard, it's down to these two judges. Judge Gorsuch from the Tenth Circuit and Judge Hardiman from the Third Circuit.  They are both accomplished jurists in their own right and I look forward to hearing which one of them is going to get the nod.

MACCALLUM:  Do you have a favorite?

LEE:  I really like Judge Gorsuch.  I've argued in front of Judge Gorsuch. I'm an appellate litigator.  It's what I did for a living before I became a senator.

And Judge Gorsuch is the kind of judge that every lawyer wants to have on his or her panel, because this is the kind of judge who reads all the briefs and reads all the cases cited in all the briefs.  He comes to argument completely prepared, knowing exactly what the law says.  And it's with that kind of judge, you can proceed with your case with great confidence.

MACCALLUM:  In terms of the fight that is going to be on everyone's hands from the Senate, what do you anticipate?  Is this going to be a Clarence Thomas situation?  A Judge Bork situation?  We have already seen a tremendous amount of pushback from Democrats including Merkley of Oregon, who has said, he will only vote for one person and that is Merrick Garland, who is not going to be an option.

LEE:  Yes.  You know, that's interesting.  And the fact that they are already signaling that before we even have someone named for this position is indicative of the fact that we are likely to face opposition.

It's going to be a fight.  There is no question about it.  But I want to be very clear.  There is a high degree of resolve among Senate Republicans to make sure that this nominee gets through.

Especially, now given that we've got narrowed down to two names, we know these are very accomplished jurists.  We know that there are no pathologies here that should keep either one of them from serving on the court.  We're going to make sure that this nominee is confirmed.  And we will fight to make sure that gets done.

MACCALLUM:  Senator, does that mean that you will employ the nuclear option if you need to?

LEE:  That's not what that means.  What that means is we've got various tools at our disposal.  And there is no reason for us to identify which tools we will have to be utilized in advance of the need for utilizing them, but we are going to get this person confirmed.

MACCALLUM:  All right.  You know, when you take a look at the fight, a lot of people would say, well, you know, basically, Republicans said the same thing.  They said that no matter who the president put forward, President Obama, you weren't going to even have a hearing for that person.  So they will say turnabout is fair play.

LEE:  Sure, they will say that.

Look, Martha, there is a very big difference between saying that in an election year, a presidential election year, when you know that by the end of that calendar year, when this vacancy first arose, that we would have our next president chosen.

The big difference between saying that then and saying what the Democrats are saying now.  In any event, we do in fact have a Republican president. We do in fact have a Republican Senate.  And we are going to get this nominee confirmed.

MACCALLUM:  It's going to be fascinating to watch.  Senator Lee, thank you very much.  Good to talk to you tonight.

LEE:  Thank you.

MACCALLUM:  So for the first time, new Homeland Security Secretary John Kelly, General John Kelly, defending President Trump's controversial new immigration policy.

Secretary Kelly stepped to the podium, as you see there today, to defend this.  He was obviously -- heads the department that's involved in writing these executive orders and he says that it is not a, quote, "Muslim ban."

Watch this.


GEN. JOHN KELLY, HOMELAND SECURITY SECRETARY:  I would like to clarify that the most recent executive order does what it does and does not mean.  This is not a travel ban.  This is a temporary pause that allows us to better review the existing refugee and visa vetting system.  This is not, I repeat, not a ban on Muslims.

The homeland security mission is to safeguard the American people -- our homeland, our values and religious liberty is one of our most fundamental and treasured values.  We knew it was coming from two years ago.  When that came down, I think I was in my sixth day on the job, but I relied on people, like the ones that are standing up here and the hundreds back at the headquarters to say, OK, we got it, boss.  You know, this looks good to us.  We are off to the races.


MACCALLUM:  So how did that go over?

Joining me now on the fallout, David Wohl, a Trump supporter and attorney, and Brian Fallon is the former DOJ spokesman and Clinton campaign national press secretary.

Brian, let me go to you first on this.  A lot of stories swirling around today that there has been, you know, some tensions over all of this, the way it was ruled out in the White House.  People sort of pointing fingers at each other.  What did you think?  Were you convinced by General Kelly today?  Did it put your mind at ease at all?

BRIAN FALLON, FORMER CLINTON CAMPAIGN NATIONAL PRESS SECRETARY:  Not really, Martha.  He essentially had to admit, the secretary did, that he hadn't seen the actual precise language of the executive order.  And that corresponds with the reports that we've seen over the last several days of people within Trump's own administration that didn't have the opportunity to review it.

It was apparently written by some of the top political advisors within the West Wing.  So you even heard complaints today from Paul Ryan, the speaker, criticizing the manner in which this was rolled out.  They actually had to adjust some of the aspects of the executive order on the fly.  Initially, they were saying that it was going to include green card holders, then, they had to walk that back.

And I think that this just all goes to suggest that it was rushed out. It's overly broad.  And I think there are serious constitutional concerns at issue here.  But just on a practical standpoint, it was incompetence in terms of the rollout here.  And I think that's why you are seeing so much criticism, even from Republicans.

MACCALLUM:  David, you know, clearly, it didn't come across in the way that the president wanted it to.  I mean, there was a lot of backlash, and perhaps if it had been rolled out in a better way, it wouldn't have been met with, you know, in some areas, hysteria, over what appears to be a three month pause in allowing people from certain country, which has certainly been done before.

DAVID WOHL, TRUMP SUPPORTER & ATTORNEY:  Right, Martha.  And, I mean, there is always going to be speed bumps at the beginning of every administration. But what's the reality here, Martha?

You know, here, when you want a background check on somebody, you can do their fingerprints.  You can do a live scan that shows you their criminal record.  It shows you their bankruptcies.  It shows you any restraining orders against them.  That type of digital infrastructure does not exist in these seven countries.

In fact, in some of them, where honor killings are not an offense, they wouldn't even show up on anything if they did have a background check.  So we have to be exceptionally careful the way Barack Obama was in 2011, when he had a six-month basically moratorium on issuing visas to Iraqis.  Mr. Trump is going to be putting Americans first, the safety of Americans first and that includes Muslim-Americans, Martha.

You've got to understand that this is a comprehensive goal that he has had for the last 18 months.  And, yes, maybe there will be some things that offend people.  Maybe it wasn't technically correct in the way it was implemented yesterday, the day before yesterday, but he is going to get it right.

It may be that some people are caught up briefly in this problem.  But once it is rolled out, once it is executed in the correct way, it will be perfect and it will work well.

MACCALLUM:  Let me just put it up on the screen what President Obama said.  Two weeks from the inauguration of President Trump, we already had some response from President Obama.  He said "President Obama is heartened by the level of engagement taking place in communities around the country."  And it goes on to say, "The president fundamentally disagrees with the notion of discriminating against individuals because of their faith or religion."

And the rest of the story, Brian, was that, you know, oh, he was getting calls from reporters and people were saying, there are so much happening, how could you not weigh in, you have to weigh in and he felt compelled to do so through a spokesperson.

I think this is an unprecedented window of time for a former president to start responding to the actions of the White House.

What do you think?

FALLON:  I think that Barack Obama himself, Martha, probably would not have predicted that he would be re-engaging in the public discourse this quickly.  But I think that the president probably made a judgment that this issue went too close to the heart of our fundamental values as Americans for him to remain silent.

MACCALLUM:  But it's not that similar from something he did in 2011.

FALLON:  Well, there is actually some important distinctions there.  If the president were asked that question, I think he point to the fact that actually, there was no ban during that period in 2011.  There was no month during that span where there weren't still Iraqi refugees coming into the country.

WOHL:  I think there was.

FALLON:  No, it was not a band.  Go back and check.  There was no period where --


WOHL:  Visas were suspended.  That's the ban.


MACCALLUM:  David, go ahead quickly and we've got to go.


FALLON:  Refugees don't rely on visas to come into the country.


WOLF:  For the last year, Martha, the Syrian immigrants, there were more than 10,000, 99.5 percent of them were Muslim immigrants are refugees, .5 percent were Christians.  That despite the fact that 10 percent of the country are Christians, talk about discriminating based on religion, that's what it is.

MACCALLUM:  We're going to leave it there.  Brian Fallon, thank you very much.  David Wohl, we will see both next time.

WOHL:  Thank you.

MACCALLUM:  Thank you, gentlemen.  So we are watching the White house tonight, as you know, because we are waiting for word from President Trump on his nominee to join the eight justices.  They were only eight right now. They are supposed to be nine.  It's been that way for almost a year.

Charles Krauthammer weighs in on what he thinks about the bruising confirmation battle which is expected to follow.

Also, tonight, Democrats deploying new and some would argue, less than savory tactics to block three critical Trump cabinet nominees.  So what is the hold up with these individuals?

Dana Loesch and Matt Bennett here on the latest plan to take on President Trump when we come back.


MACCALLUM:  So new efforts by Democrats to bring the Trump administration to a screeching halt today.  Half of the Senate Finance Committee room was empty.  Democrats refused to show up to vote in the nominations.  And here's what that pretty picture looked at on Capitol Hill.

And these were for Congressman Tom Price for Health and Human Services secretary and Steve Mnuchin for Treasury secretary.  So then hours later, Democrats forced to delay in the vote for Attorney General Nominee Senator Jeff Sessions, which has already been delayed by a week in this process.

Chief national correspondent Ed Henry joins us live in Washington with what's going on there.

Good evening to you, Ed.

ED HENRY, FOX NEWS CHIEF WHITE HOUSE CORRESPONDENT:  Good to see you, Martha.  Remember, on day one of the Obama presidency, Republicans confirmed nearly half of his cabinet no less than seven picks.  On day one, President Trump got just two confirmed.  More than ten days later, he still has a total of only four after Elaine Chao was confirmed today as Transportation chief.

Now Trump allies note the president never would have fired acting attorney general if his nominee had been confirmed.  The president today tweeting "When will the Democrats give us our attorney general and rest of cabinet?  They should be ashamed of themselves.  No wonder D.C. doesn't work."

The Democrats responded by approving Chao, but then launched that work stop that you mentioned on the other nominees.  Chuck Schumer declaring it's because the White House is suffering a, quote, "crisis of confidence."

Republican Mitch McConnell fired back, the Democrats look foolish because they haven't gotten over the election results.  A reversal of February 2010 when then President Obama cut off John McCain at a Health Care Summit with a less than gracious, "You lost, get over it."


BARACK OBAMA, FORMER PRESIDENT OF THE UNITED STATES:  Let me just make this point, John, because we are not campaigning anymore.  The election is over.

SEN. JOHN MCCAIN, R-ARIZONA:  Why you're reminded of that every day.


OBAMA:  So we can spend the remainder of the time with our respective talking points going back and forth.  We were supposed to be talking about insurance.


HENRY:  Now economist David Smith, author of the bestseller "The Great Equalizer" declared today that blocking a new Treasury secretary is actually destabilizing the markets.  Smith charged that this is causing uncertainty and is getting dangerous.


MACCALLUM:  Fascinating to go back to that sound bite.

Here with more, Dana Loesch is the host of "Dana" on Blaze TV and Matt Bennett, co-founder of the "Third Way" and former deputy assistant to President Clinton.

Welcome to both of you.  Good to have you here.

DANA LOESCH, TV HOST, DANA:  Thanks, Martha.


MACCALLUM:  You know, Matt, you look at that moment, I remember it.  It was, you know, it's just one of those things that made you sort of catch your breath.  It was an awkward moment in that room.  He pressed forward on it.  And he believed that he won and that that gave him, you know, the mandate to move forward.

So why is it not the same for President Trump?

BENNETT:  look, we are not litigating what Obama did in 2010.  What we are talking about is what's going on right now.  And the fact is we've never seen an opening of an administration, anything like what we are seeing with Trump.

Trump, all of the blame for this, really should be laid at the feet of Donald Trump.  He is completely mishandling --


MACCALLUM:  But he is doing exactly what he said he was going to do as a candidate.  He won 306 electoral votes and now he is going down that list and doing those things.

So what is so shocking about that, Matt?

BENNETT:  Well, this isn't -- just to be clear, this is not about whether or not he is the president.  Everybody in Congress acknowledges that Donald Trump is the -- won the election and is the president.  The question now, is he just running roughshod over congress?  The executive orders that he issued in the last few days, including the travel ban, or so outside the mainstream, that even Republicans were shocked by them.  And Democrats who came in to this skeptical of Trump, but willing to listen, and you know, they move the move the initial nominees through --

MACCALLUM:  What we are talking about here is approving his nominees.  We just saw the room, which was half empty. I just want to play something from Senator Orrin Hatch and then I want to get Dana's thoughts.  Let's play that.  


ORRIN HATCH, SENATE FINANCE COMMITTEE CHAIRMAN:  We need to stop posturing and acting like idiots.  Stop holding news conferences and come here and express yourself here and then, vote, one way or the other.  I would like to see somebody with courage on that other side.  


MACCALLUM:  Dana, your thoughts?  

DANA LOESCH, THE BLAZE ON TV AND AUTHOR OF "HANDS OFF MY GUN:  I actually do think, Martha, what former President Barack Obama did matter.  I love the quote that he said.  Remember this one?  Elections have consequences and so does November 8th and the people voted, they made their voice known.  And they gave this new administration a mandate, I realize that it is difficult for people to see a president to actually go to work and accomplish something that first week of office and instead of going to cocktail parties and never ending balls, but what we are seeing here is actually the will of the people being done.  We are seeing business being done.  It is incredibly unfortunate that we have a political party in congress right now that wants to play petty politics with the lives of Americans and tried to hold up every single nomination.  I will tell you this, Martha.  Democrats probably want to reevaluate that tactic of blocking everyone.  You know that Joe Biden, he actually invented the hardball that Democrats are playing right now, because they have midterms coming up.  It is going to be quite a fight if they want to retain a semblance and this point.  

MACCALLUM:  At some point, Matt, Democrats will be accused, by Democrats, of sort of picking up, picking their battles correctly here.  

BENNETT:  First of all, let's remember that Mitch McConnell said, after Barack Obama was reelected in 2012, that it was his job to make sure that Barack Obama couldn't do anything.  

MACCALLUM:  That really bothers Democrats, right?  Why obstruction is something that you are a big fan of now.  

BENNETT:  Also, let me point out another thing that bothered us.  President Obama nominated a Supreme Court justice last February.  You pointed this out earlier and McConnell sat on it for almost a year.  

MACCALLUM:  Give what you get, basically, right?  That is the philosophy?  

BENNETT:  No.  Well I think there is a little bit of payback.  But mostly, this is about the way that Trump is conducting himself over the last few days.  It is about the E.O's and the way that he has opened his presence.  

MACCALLUM:  I really think at one point the American people look at this and they sort of agree with Orrin Hatch.  You know what, enough.  Get in the room, do your job, sit down at the table, and let's vote on these things.  

LOESCH:  Right.  

MACCALLUM:  We will see.  We are out of time, guys.  Thank you very much, Matt Bennett and Dana Loesch, great to have you both here tonight.  Still ahead tonight, as we wait President Trump pick to replace Judge Antonin Scalia and his vacant Supreme Court seat, we have got some new details tonight on what could happen after the pick, with Senator Ted Cruz is signaling that he is willing to keep the so-called nuclear option on the table.  We'll explain that coming up with Marc Thiessen and Nan Aron to debate it, coming up next.  Plus, Charles Krauthammer to tell us why the fight could be quote bloody and quite enjoyable and his words, when we come back.  


UNIDENTIFIED MALE:  Would you want to make McConnell to use the nuclear option?  



TRUMP:   I will.  

UNIDENTIFIED MALE:  Have you talk about it?  

TRUMP:  We have obstructionists.  



MACCALLUM:  7:37 on the east coast and take a look at this, in front of the White House, somewhat unusual scene.  There is a huge crowd of people standing at the front door, as we are waiting for tonight's announcement.  They may be bringing them in through that way, but it is somewhat unusual. John Roberts is covering all of this for us.  He -- is he in the crowd? He is in the crowd as they are waiting to go in, so, it is probably the press coming up from the White House briefing room, as they gather to go in for the decision.  So, that would appear that we may be getting pretty close. 8:02 is something like that, when we expect that we are going to get this announcement from President Trump this evening.  He will tell us his choice for the Supreme Court, but even without a name offered, there is already quite a bit of drama on Capitol Hill about what will happen next.  With some Republicans signaling that they may be ok with this so-called nuclear option, if Democrats decide to filibuster this judge.  Trace Gallagher explains all of that for us.  Hey, Trace.  

TRACE GALLAGHER, FOX NEWS CORRESPONDENT:  Hey, Martha.  Some Democrats are calling from President Trump Supreme Court Nominee, quote, stolen seat, referring to last year, when the GOP controlled senate chose not to hold a hearing for President Obama Supreme Court pick Merrick Garland.  So, this time around, Oregon Democratic Senator Jeff Berkley has promised to filibuster a fight, meaning Trump's nominee would need 60 votes to be confirmed by the senate.  It would also mark only the second time in history the senate has mounted a filibuster against a high court pick.  In 2006, Democrats, including then senator Barack Obama, tried and failed to block the confirmation of Samuel Alito.  

Texas Senator Ted Cruz said if the Democrats this time plan to block President Trump's nominee, then, Republicans should use this so-called nuclear option.  That is where the senate can change the rules, allowing the Supreme Court nominee to be confirmed with only 51 votes.  Senate majority leader Mitch McConnell is reportedly against changing their rules. But he also guaranteed that Trump's nominee will be confirmed.  And remember in 2013, then Senate Majority Leader Harry Reid upended nearly 40 years of precedent by using the nuclear option to eliminate the filibuster for President Obama's federal and circuit court nominees.  This was Harry Reid's argument at the time, followed by Mitch McConnell's warning.  Watch.  


HARRY REID, NEVADA SENATOR:  The senate's is a living thing.  And to survive, it must change, as it has over the history of this great country.  To the average American, adapting the rules to make us on at work again is just common sense.  

SEN. MITCH MCCONNEL, R-KENTUCKY:  If you want to play games, set yet another president that he will no doubt come to regret, I will say to my friends on the other side of the aisle, you will regret this, and you may regret it a lot sooner than you will think.  


GALLAGHER:  And it is sooner than Democrats thought.  In fact, in October, when Democrats expected to win both the senate and the White House, Harry Reid again threatened to use the nuclear option, ending filibusters for Supreme Court nominees.  Martha.  

MACCALLUM:  Wow.  And here we are, so joining me now, Marc Thiessen, former chief speechwriter for George W. Bush and a Fox News Contributor.  He said Mr. Trump should go nuclear on his Supreme Court pick.  Nan Aron is the president of the alliance for justice, a progressive group who will fight President Trump's nomination to the Supreme Court.  Welcome to both of you, as we watch the press filing in here and we get ready for this exciting announcement, no matter on which side of the aisle you sit.  We watch all of this unfold.  Nan, you look at that, that back and forth with Harry Reid, and the concerned about using the nuclear option.  Mitch McConnell saying, it could be on the other foot.  Of course, at that point, nobody thought we would have a Republican president, but you know, I mean, it seems like this was set up by your side.  

NAN ARON, PRESIDENT OF THE ALLIANCE FOR JUSTICE:  I think it's important, first, to remember that we are confirming a Supreme Court justice, not for four years, not for eight years, but for a lifetime appointment.  I think it is too early to talk about nuclear options, filibusters.  

MACCALLUM:  Why are Democrats already talking about rejecting this person no matter who it is?  

ARON:  There is only one senator who stepped out and mentioned filibusters. And I think Senator Merkley is just expressing the anguish felt by Democrats over the mistreatment of Merrick Garland.  But that was then. Now is now.  And we will all be focused on the next nomination.  

MACCALLUM:  You are saying one of these two individuals, Hardiman or Gorsuch, which we do expect at this point, that perhaps, you know one or both of them is acceptable to Democrats?  

ARON:  Based on the research, alliance for justice has done, neither is acceptable.  In fact, no one on that list of 21 names is acceptable.  

MACCALLUM:  They were improved 95-0 when they went through.  By some of these same senators, so what a dramatic transformation happened to these individual since a few years ago when they were approved, Nan?  

ARON:  Well going to the Supreme Court is a very different question.  

MACCALLUM:  I guess they didn't do the research and they weren't paying attention the last time around?  

ARON:  The research was done, but everybody needs to look anew.  After all, they have been on the bench now for about ten years.  There is now a record to review.  

MACCALLUM:  Ok.  Marc, I want to bring you in before we have to run.  So what do you think?  You are listening to what Nan has to say, your thoughts?  

MARC THIESSEN, AMERICAN ENTERPRISING SCHOLAR AND FOX NEWS CONTRIBUTOR: Yes, basically, first of all, it is not just one senator.  It is Chuck Schumer, the minority leader, who has said that anyone on Trump's list of 21 judges, we will hold that seat open.  They don't have the power to hold that seat open, because they set a precedent.  Nan said this is a lifetime appointment.  You know what they did in 2013?  They got rid of the filibuster for lifetime appointments to the federal bench at the district in circuit courts level.  And the reason they did that is that they wanted to stack the nation's second highest court, the D.C. Circuit with liberal judges.  Well they succeed in doing that.  Now, there say, oh, please, don't use the nuclear options on the nation's highest court.  If the Republicans do that, it will only be because of the intransigence of the Democrats saying they will oppose this nominee, no matter what, even before they knew who he is.  And it will be using the president that they set in 2013 for lifetime appointments to the federal bench.  If it is good enough for the nation second highest court, I think it is good enough for the highest court?  

MACCALLUM:  Let me quickly ask you, I need a yes or no on this, because we are almost out of time.  Are we had appointed as a nation that we are so divided that the nuclear option as the only way that anything will ever get done and if the you are in power and you got elected into power, you are going to get your people through?  Nan, quickly.  

ARON:  The only way we'll get a nominee confirmed is if that nominee is a person who will support court constitutional values, who will recognize the progress that has been made and workers' rights, the environment, consumer, women's protections and is willing to go forward, not go backward.  

MACCALLUM:  Marc, very quick thought.  

THIESSEN:  Donald Trump is not going to appoint a liberal, which is what Nan wants.  And the reality is, that the Democrats have been in charge last year with Merrick Garland was appointed, Nan would've been the first one saying, we should use the nuclear option to put them on the court.  And next time the Democrats are in power they are going to vote for nuclear options, Republicans try the filibuster judge, so, we might as well just go ahead and do it.  Whoever Donald Trump nominates today is going to be on the Supreme Court no matter what Nan or the Democrats say.  

MACCALLUM:  The senator said we have a lot of tools at our disposal.  So there may be other options.  We will see.  Nan, thank you very much, Marc Thiessen, great to have you both with us.  

ARON:  Thank you.  

MACCALLUM:  You are watching this scene here, getting sort of exciting. Donald Trump Junior is in the room, in the east room.  We haven't seen him at the White House since then.  Eric Trump is also there.  Senator (inaudible), walking in.  Donald Trump is about to make a very big decision, the president is.  One of his campaign promises was a conservative judge to fill Justice Antonin Scalia's vacant spot.  Charles Krauthammer is here, with his final thoughts on who President Trump will pick and how this is going to go, when we come back.  


MACCALLUM:  Moments away now, from President Trump stepping into the east room to announce his pick for Supreme Court Justice.  Chief White House Correspondent John Roberts standing by inside the east room tonight, in the center of all the action is.  John, tell us.  

JOHN ROBERTS, CHIEF WHITE HOUSE CORRESPONDENT:  Martha, good evening to you.  Let's take a little look around the east room here if we can get it to pan off.  We have got all sorts of the dignitary's staff at the White House, Eric and Don, Jr. Trump, over there.  We have all of the senators who will be involved in the confirmation process here.  A lot of other invited guests as well, as we anticipate President Trump's first nomination to the Supreme Court.  My text message is starting to buzz, buzz, buzz, people saying it is its Gorsuch, its Gorsuch, its Gorsuch.  We have not got that officially yet from any White House source, but people on the periphery certainly starting to talk about it.  

He definitely looked like he was the number-one pick between the two of them.  Now, it was Neil Gorsuch for the tenth circuit in Denver or Thomas Hardiman from the third circuit.  Hardiman, a lot of people like him, because they thought he would be in easy confirmation.  A lot of the Democrats voted for him in 2007, Martha, are still in the senate.  A number of them are up for reelection in 2018 and states that Donald Trump won.  So they thought, if we put forward Hardiman, these people will likely have to vote for him to confirm him, because they voted for him some number of years ago and they don't want to upset people in those states when they are seeking reelection.  But it is looking, at this point and again, this is just what we are picking up on the periphery that the strong lean is toward Neil Gorsuch.  We will find out here very soon, Martha, what the president's pick is going to be.  Oh, maybe nine or 10 minutes away here in the east room.  

MACCALLUM:  Room filling up, lots of excitement.  John, thank you so much. So we are just moments away, as john said, the president will unveil, Rudy Giuliani in the room now as well.  He will unveil his pick for Supreme Court to fill the spot of Antonin Scalia, who passed away about a year ago. As John just said, Judge Neil Gorsuch, form the U.S. Court of Appeals for the tenth circuit and Judge Thomas Hardiman from the U.S. Court of Appeals for the third circuit, that is Denver and Pittsburgh, respectively, are said to be the top picks.  Joining us now with his thoughts on the choices before President Trump gets out there to speak.  Charles Krauthammer joins me, Syndicated Columnist and Fox News Contributor.  Charles, what is on your mind?  What are your thoughts as we wait for this moment?  

CHARLES KRAUTHAMMER, FOX NEWS CONTRIBUTOR AND NATIONAL SYNDICATED COLUMNIST:  We are down to a choice that for conservatives is a very good one.  I think either one would please conservatives.  I think just about anybody on the initial list of 21 possible Supreme Court choices was reassuring.  It certainly helped Trump to get reelected -- to get elected. I think that really made an impression.  Large number of people in the exit polls said that the choice of Supreme Court was extremely important for them and the ones who did generally went for Trump.  

MACCALLUM:  yes, that is a great point.  

KRAUTHAMMER:  I think either one would be very pleasing.  Gorsuch, if that is the choice, I think it will be a particularly welcome one.  

MACCALLUM:  All right, so you will have the moment tonight where everyone in the White House is happy and clapping.  As you say, conservatives will be pleased with the choice.  You know and I know that tomorrow, this battle is going to begin.  Characterize what you think this is going to be like for us.  Will there be like Clarence Thomas all over again?  

KRAUTHAMMER:  The Democrats are not going to wait until tomorrow.  The muskets are going to start to fire within minutes on tweets and elsewhere, the bombs bursting in air.  The Democrats will be right out of the gate. They probably have prepared all of their talking points.  On the personal attacks before even knowing who the choice was going to be.  So I think they are ready.  They have their playbook.  Extremist, not in the mainstream, he is not sensitive to the constitution, misogynist, not sensitive to women's rights, civil rights, et cetera.  That is all prepared.  It is ready to go.  It is a fill in the blanks assault and it will start right away.  And it will fail.  

MACCALLUM:  You know we are watching this live shot now.  You see Donald Trump's sons, Eric and Don, Jr.  We just saw Brad Pascal, the brains behind the data machine that propelled the Trump campaign to victory in many ways, telling them what counties you need to be in.  So, this president, as you pointed out, Charles, is where he is tonight, at least in part, because many people look to the equation between a Clinton presidency and a Trump presidency, and said, I want a more conservative Supreme Court pick.  As you pointed out, this was a very important element for them.  So, how will that impacts the Democrats if they go tooth and nail on this and do you expect that we will see a nuclear option or one of the other tools that Senator Mike Lee put it to me earlier?  

KRAUTHAMMER:  Well, if the Democrats decide to filibuster, there will be a nuclear option.  I guarantee you.  Mitch McConnell is not going to allow this nomination to go down.  Now, perhaps, the Democrats will decide that a filibuster in this case is not worth it.  After all, it is a 1 for 1 substitution for Scalia.  They want to hold their powder for the next one, which could be the replacement for a liberal, a Democrat on the court.  In which case, it would shift the balance of power dramatically for decades.  And that could be the one which they want to have a massive fight.  But I don't see any way that McConnell will back down on this.  After all, he stood up to a lot of heavy incoming fire by holding up the Merrick Garland nomination, which I think was exactly the right move.  He held it up against all conventional wisdom, against liberal opinion, media opinion, and obstructionists.  He took all of the slings and arrows.  And he turned out to be right, because the people got to choose Supreme Court nomination was high on the agenda of the voters.  And they are getting to choose through Donald Trump.  

So, I don't see him allowing any of these to fail.  It is up to the Democrats, to Chuck Schumer, to decide if he wants to go to the nuclear option or not.  And the beauty of it, sort of the pleasing part for conservatives, like me, is the poetic justice of the fact that it was the Democrats when they had the majority, it was Harry Reid who changed four decades of custom to abolish the filibuster for judicial nominations below the Supreme Court.  Once he had done that, ripped up the principal, ripped up the norm, abandoned a precedent, there is no reason in the world why Republicans shouldn't and won't do the same if the filibuster is threatening to hold up a Republican nominee for Supreme Court.  

MACCALLUM:  You make a great point, Charles, because in many ways, this is potentially the first of two picks that Donald Trump will make.  There is a lot of strategy involved in that, for the Democrats and for the Republicans, in terms of shifting the balance of power in the Supreme Court.  So, this pick, as you point out, is 1 for 1.  It's a conservative replacement for Antonin Scalia for the next time around, it could be Ginsberg or Breyer or Kennedy.  That is another possibility.  Some people believe that he has suggested that perhaps he would consider retiring.  That is a big question.  It's a two part story, is it not?  

KRAUTHAMMER:  Well conservatives justices generally wait for Republican administrations.  They are near retirement, because they don't want to see their seat swing over to the other side.  The same with liberal justices and I think many liberals are rather upset with Ruth Bader Ginsburg, who is now, I believe, 83, for not having stepped down when they had a Democrat in the house.  

MACCALLUM:  Charles, thank you very much.  We want to go to Shannon Bream, who is also standing by.  She is been covering the story from the steps of the Supreme Court throughout the day.  Shannon your thoughts, as we are just minutes away, we believe, from this announcement.  

SHANNON BREAM, FOX NEWS:  Martha, if we do get judge of Neil Gorsuch as a nominee, it is going to be a home run for conservatives.  He is somebody who would he was attending Columbia in the 1980s, he started cofounded a paper called "the fed," it was supposed to push back against what he viewed as the pc feeling on-campus, the culture there.  He is somebody who has strong conservative credentials, routes that run very deep.  His mother was the first female head of the EPA during the Reagan administration.  And those close to him say that she remembers the battles that she took on with the liberals just came after her and savage her.  He knows of this confirmation will be about.  In fact he has talked about how confirmations have become so political and they have become blood to sport almost.  If he is a nominee, he knows what he is walking into.  He is somebody also in addition, having clerked here at the Supreme Court.  He worked in the Department of Justice.  He is well known by people and the Bush 43 administration for his work in the DOJ.  He is not an unknown entity. He has had years on the bench.  He has got a lot of opinions out there, people have been able to look at is paper trail.  He got that sterling credential of Columbia Harvard and Oxford.  You got Judge Hardiman as the other top contender.  We are told -- who is somebody who went to Notre dame in Georgetown, drove a taxi to help him put himself through school.  He is a personal connection to the president.  That he serves on the same bench as the president's sister, who is a judge also in the third circuit.  He also is strong conservative credentials.  He has talked about how judges, it is not their place ever to insert their own politics or feelings, you stick to the fact, you stick to the law, that is what conservatives like to hear. We will know and minutes, Martha.  

MACCALLUM:  We will.  Shannon, thank you so much.  We will be watching this throughout the course of the evening, of course.  President Trump is about to walk down that red carpeted hallway and make his announcement for his Supreme Court pick.  It's a big moment for him, to be sure.  And something that he and his team have put quite a bit of thought into Antonin Scalia's seat has had open for nearly a year now, the announcement just moments away, Bill O'Reilly, coming up next.


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