Cotton insists Senate will 'move forward without delay' on Trump SCOTUS nominee

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This is a rush transcript from “The Story with Martha MacCallum” September 21, 2020. This copy may not be in its final form and may be updated.

BRET BAIER, FOX NEWS ANCHOR: Special Report. Fair, balanced, and unafraid.

"THE STORY" hosted by Martha MacCallum starts right now.

MARTHA MACCALLUM, FOX NEWS ANCHOR: Hey there, Bret. Good evening. Good to see you.

BAIER: Good evening.

MACCALLUM: So, breaking tonight, President Trump en route to a rally in Swanton, Ohio right now. We understand he's a bit behind schedule, slated to appear at 7. We're going to get you there live, dip in and out of that as soon as that gets underway. It is his third trip to Ohio this year. Joe Biden has not been to Ohio as the nominee, but he was in Wisconsin today.

More on that in a moment. Good evening, everybody. I'm Martha MacCallum and this is THE STORY.

So, just when you thought that it couldn't get any more intense, the battle is now more pitched than ever, with both sides saying that the other is, playing with fire and with the president plowing ahead on the Supreme Court as Democrats threaten impeachment and more. We'll dig into all of this in just a moment. But first, let's give you the lay of the land in Ohio tonight to show you why the president is where he is tonight.

Swanton, Ohio straddles two counties, Fulton, which voted for President Trump in 2016, and Lucas, which voted for Hillary Clinton. Earlier today, he spent some time on the ground in Dayton. That's Montgomery County, which narrowly voted for him back then. But today, the suburbs in Ohio have drifted away from the president and he is trying to get them back as he campaigns there.

Ohio has nine counties that supported President Obama and then flipped to candidate Trump in 2016. Now, four of those, Ottawa, Wood, Sandusky, and Erie are in the area where we will see the president speak tonight for good reason for his campaign. Some of those places turned blue in the midterms in 2018.

Now let's go over to Joe Biden on the other side of the equation. He was in Manitowoc, Wisconsin, this afternoon. He spent a lot of time in a speech there talking about the middle class, appealing to them, also talking a lot about COVID-19. He accused the president of being elitist essentially, and he never spoke in this speech, he did on Saturday, but not at all today about the Supreme Court vacancy. Here's a bit of what he said.

(BEGIN VIDEO CLIP)

JOE BIDEN (D) PRESIDENTIAL NOMINEE: It was, you know, Joe Biden, if elected, will be only the first president who didn't go to an Ivy League school a long time. I say it's about time that a state school president sat in the Oval Office, because, you know what, if I'm sitting there, you're going to be sitting there too.

(END VIDEO CLIP)

MACCALLUM: Direct appeal to blue collar working voters in Manitowoc, Wisconsin today. But, of course, the death of Ruth Bader Ginsburg has created a major inflection point in this already tumultuous election that we are in the middle of.

Now, keep in mind, since 1975, it's taken an average of 40 days to - for a nominee to even get to the Senate hearing stage and then 70 days between their nomination and their actual confirmation. So, this is a very tight schedule. There are 43 days to go until Election Day. So, where is this headed?

We start tonight with Tom Cotton, who earlier this month was one of the names on the list of the president's potential Supreme Court nominees.

Senator, good to have you here tonight. He has said quite clearly that it's a woman. So, sorry to tell you. I don't think that you're in the running at this point, at least unless we see some big changes. First of all, do you think it's wise and appropriate for him to make that distinction here?

SEN. TOM COTTON (R-AR): Yes, Martha, I think the president has many capable female candidates on the list that he's released in the past, and I suspect he'll choose one this week and send it forward to the United States Senate.

That's what he campaigned on doing in 2016. And we will process that nominee without delay. We did that not only in 2016, but in 2018 too, when there couldn't have been a clear referendum. Just one month after the Brett Kavanaugh vote.

Four Democratic senators voted against him. They lost their re-election.

One voted for him and won. So, the American people returned a Republican majority to the Senate to do exactly what we intend to do, which is confirm the president's eventual nominee.

MACCALLUM: But what about timing, when you look at the time frames that we just mentioned, it is a very close until the election. So, what if there's a scenario where President Trump loses, and would then a nominee be pushed through in the lame duck session?

COTTON: Well, first off, Martha, the president is going to win, I think he'll win a resounding victory on November 3rd, and I expect the American people will vote for a Republican Senate majority again. In part because they want to see judges on the Supreme Court who understand the difference between making the law and applying the law. In part because they see what the Democrats are already promising to do. And now they've started threatening it even more explicitly since Justice Ginsburg's death on a Friday.

You have radical Democrats saying that they're going to pack the Supreme Court if we fill this vacancy. Why do they want to do that? They want the Supreme Court to be a rubber stamp for their radical Left-wing agenda. They want Congress and state legislatures to be able to violate the Second Amendment and pass laws confiscating guns, and they want the Supreme Court to rubber stamp it. That's a reason why the American people are not going to vote for Democrats come November 3rd.

But whatever happens in terms of the timing of the president's nomination, the Senate will move forward without delay. We'll take a careful, thorough, deliberate approach to it and we will confirm that nominee, I'm confident.

MACCALLUM: Just a bit of news just crossing as you were talking from your colleague, Cory Gardner in Colorado, who's obviously in a tight race there.

He is essentially saying, he says, when a president exercises constitutional authority to nominate a judge for the Supreme Court vacancy, the Senate must decide how to best fulfill its constitutional duty of advice and consent. I have and will continue to support judicial nominees who will protect our Constitution, not legislate from the bench.

Should a qualified nominee who meets this criteria be put forward? I will vote to confirm. He was one of several, including Mitt Romney and potentially Senator Grassley, who were seen to be somewhat on the bubble.

We've heard already from Murkowski and Collins. Your thoughts on your colleague's statement tonight?

COTTON: Well, I'm not at all surprised to hear Cory Gardner say that. Cory has been a very strong advocate for having judges from the Supreme Court down to the trial courts who understand their role in our constitutional system, their role to apply the law, not to make the law. That's one reason why he was such a strong advocate for Neil Gorsuch to become a Supreme Court justice, having come from Colorado.

So that's not surprising to me at all. I believe that once we get the nominee, that nominee will be highly capable. The Senate will be thorough and careful. We won't cut corners; we won't skip steps. But there is more than enough time to confirm the president's nominee, perhaps before the election, certainly by the end of the year.

MACCALLUM: All right. So, obviously there's a lot of discussion about the choice that Mitch McConnell, Senator McConnell made back in 2016. And you spoke out at that point as well. This is you in light of the Merrick Garland nomination by President Obama, which was nine months from the election at that point. Here's what you said then.

(BEGIN VIDEO CLIP)

COTTON: And a few short months, we will have a new president and new senators. You can consider the next justice with the full faith of the American people. Why would we cut off the national debate about this next justice? Why would we squelch the voice of the people? Why would we deny the voters a chance to weigh in on the makeup of the Supreme Court?

(END VIDEO CLIP)

MACCALLUM: So, what do you say about that now? And you look back at that time and it is the Senate's constitutional duty to advise and consent and even that part of the duty of the Senate was not carried out at that point for Merrick Garland.

COTTON: So, Martha, remember, in 2014, we had an election in which we won a smashing victory, a large majority delivered in part to put the brakes on the Obama agenda for the final two years of the Obama presidency. So, it shouldn't be a surprise that when a Democratic president submitted a Supreme Court justice, the Republican Senate did not want to confirm that justice. That's exactly how we exercise our advice--

MACCALLUM: But why not take it to the vote.

COTTON: Nor should - well, nor should anyone be surprised, Martha, that with a Republican president and a Republican Senate that we plan to move forward to confirm exactly the kind of nominee that we promised in 2018.

Remember, we could not have had a clearer referendum with the voters in 2018, just one month after the Brett Kavanaugh confirmation. We promised that we would continue to confirm the president's highly capable judicial nominees and that's exactly what we're going to do.

MACCALLUM: Well, I mean a lot of people look back at that and they look at the statements that were made by some of your colleagues, Lindsey Graham and others, who basically said, if this were to happen close to the election, we would not move forward. We would wait until after the election. So, I mean, it's going to be up to the voters to decide how they feel about all of that. We just sort of lay it down for the record here.

Here is Joe Biden appealing to GOP senators on the Supreme Court confirmation in Philadelphia yesterday. Here's what he said.

(BEGIN VIDEO CLIP)

BIDEN: I appeal to those few Senate Republicans, the handful who really will decide what happens. Please follow your conscience. The last thing we need is to add a constitutional crisis that plunges us deeper into the abyss, deeper into the darkness.

(END VIDEO CLIP)

MACCALLUM: So, your reaction to what he said and how wobbly do you think, for lack of a better word, some senators might be in this process on your side?

COTTON: Well, Joe Biden and the Democrats can spare their crocodile tears.

Look, we know what they really think. Joe Biden said in 2016 that a Senate held by the opposition party should vote on a president's nominee. So, certainly he thinks that a Senate with the same party as the White House should vote on a president's nominee. He just upset that it's the Republican Party, not the Democratic Party.

But in the meantime, Joe Biden supporters are rioting and protesting on private homes like Lindsey Graham's and Thom Tillis' and Mitch McConnell's over the weekend because they want to take this out of the constitutional process, they want to say we're going to take radical steps like packing the Supreme Court if you move forward. But remember, they were promising those things before this weekend, so they can spare the crocodile tears and the idle threats.

MACCALLUM: All right. We're going to talk a lot about their potential for packing the Supreme Court, making Puerto Rico and D.C. potentially states, which would add four more senators into the mix. So, lots more on that to come. Senator, thank you. Good to have you here tonight as always, sir.

COTTON: Thank you, Martha.

MACCALLUM: So, we bring in Geraldo Rivera now, Fox News Correspondent-at- Large. Geraldo, great to have you with us as always as well.

GERALDO RIVERA, FOX NEWS CORRESPONDENT-AT-LARGE: Thank you.

MACCALLUM: I know that you feel very differently than Senator Cotton about this move, tell me.

RIVERA: I sure do. I think, first of all, hypocrisy. Follow your conscience. I mean, who are we kidding, Martha? This is about abortion and abortion rights. That's what this is about. This is about the Supreme Court of the United States. If a new justice is confirmed, is voted on and confirmed successfully before the end of the first term of President Trump's tenure, it will affect for decades the fight over reproductive rights. This is about Roe v. Wade. This is about the fact that that Supreme Court is now has in its hands Roe v. Wade, which is a constitutional right, but it's not written in stone.

It can easily be overthrown by a new court with a different ideological majority. This, I was thinking more thought to myself, how is it that this is our lead story and the lead story of all the newscasts this evening in the face of all the suffering, the extraordinary pain the United States and the rest of the world have gone through because of the Coronavirus. We're now 200,000 Americans dead. And yet the focus is on the Supreme Court. Why is that?

It is, I think with all due respect to all the people who have lost so much and suffered so much, we will get over the Coronavirus. This too shall pass in the relative - a year or so. But the Supreme Court, one that Amy Coney Barrett is 48 years old. Barbara Lagoa is 52 years old.

For decades, they will now sit on the Supreme Court. One of them will sit on the Supreme Court if this vote is pulled off and affect how we feel about, how we - legislation about Roe v. Wade. It's a very, very big deal as the father of three daughters, this is the issue, this is--

MACCALLUM: As you know, the country is very divided on that issue. So, there would be a lot of people who would be very supportive if they thought that this would be something that would overturn Roe v. Wade. But Amy Coney Barrett is on the record as saying that she doesn't believe that there will be a change in Roe v. Wade. She said it's possible that there could be impacts on some of the later term abortion issues. But she has basically said that she sees it as settled law. Brett Kavanaugh said the same thing in the course of his Supreme Court hearings.

And I think there are many issues. It is not just that issue. There are many issues that conservative justices would obviously feel strongly about.

The most important of which is adhering to the Constitution as written as textualists in terms of the way they approach it, rather than making laws based on current events and how they see them molded through cases. I mean, that's really the core of the issue, I think, for most people.

RIVERA: I respectfully disagree. I was in the Supreme Court of the United States in December of 2000. It happened to be the day that I was admitted to the Supreme Court bar, so that all the justices were there arrayed in all their splendor, including Ruth Bader Ginsburg. It was one of the great days of my life. And later that day, they argued Bush v. Gore.

This is now a four-four Supreme Court. If we don't get that ninth justice confirmed. A four-four Supreme Court. This election could very well follow the Gore-Bush election of 2000 and be decided by the Supreme Court of the United States. How do they decide if it's a four-four vote? That's why the Republicans have this urgency.

Now, I think that there's a political calculation, hard, cold calculation that the Republicans have made, that they gain more votes by motivating their following, by pushing through this nomination then they lose now.

Now, it might be, and you know how I feel about President Trump. It may be that he's motivated by a higher calling that this is really - because he feels so deeply, so profoundly about the issue of abortion, opposing abortion. It could be that he's going to sacrifice everything, that he's going to bet everything on this roll of the dice, that this insistence on getting that ninth judge is so important to him because of his conscience and his heart that'll risk everything.

MACCALLUM: Well, you may have just touched on something very important there. I mean, we may see this go to the courts, this election, as we saw in 2000. And just based on everyone's self-interest of any politician, it would be understandable, a Democrat or Republican that they would want to push through the nominee of their choosing before they leave. And it is the constitutional duty of a president.

This was said by Ruth Bader Ginsburg herself. She said, you don't stop being president before the last month or day of your presidency. And it is incumbent upon a president to choose someone. All he does is choose that individual. Then it is up to the Senate to decide whether or not they're going to hold hearings. And that is the advice and consent role is also their mandate. Quick thought and then I've got to go.

RIVERA: I adore constitutional discussions and philosophy. I still believe very strongly, Martha, that this is about a woman's right to choose. I was there in Washington, D.C., the day after President Trump was inaugurated. I saw hundreds of thousands of female protesters wearing those pink hats, all about the right to choose. This is what will motivate voters, pro or con, on this referendum on President Trump on November 3rd. This - I think at the strip, the rest of it, I think that this hardcore discussion is what's all about.

MACCALLUM: I mean, I think you're right that this will be what senators will try to get to the heart of in the hearing process here without a doubt. We all remember Dianne Feinstein saying to Amy Coney Barrett in her

- when she was being approved for her current position as a judge, that the dogma lives strongly within you. I wonder if she would have said that to anyone of another faith.

But you're right. We're going to hear a lot about this if we get to the hearing stage before the election. So, Geraldo, it's always good to have you with us. Thank you so much.

RIVERA: Thank you, Martha. Thank you.

MACCALLUM: We'll see you soon. So, coming up, Joe Biden campaigning in Wisconsin as we have said. Polls have him there up by about 7 at this point. The former vice president didn't mention the vacant seat on the Supreme Court, shied away from that issue in his remarks today. He did talk about it on Saturday and then he said whoever wins in November is the person who should determine that nominee. But that is not what he said years ago.

(COMMERCIAL BREAK)

MACCALLUM: So, President Trump is now wheels up, we understand, to Swanton, Ohio, where he's expected to address the looming showdown over the Supreme Court vacancy. There is a live shot of the crowd waiting for him in Swanton, Ohio, tonight.

His opponent, Joe Biden, did not mention the court issue while he was on the trail in Wisconsin this afternoon. He did really talk a lot though, about issues of elitism and Park Avenue, a line of thinking and narrative that he is very much leaning into at this point, trying to paint President Trump as in that category and himself as a champion of every man in Wisconsin today.

So, after he previously pushed for the Senate to hold off on an empty seat until Election Day, now he feels differently. Watch this.

(BEGIN VIDEO CLIP)

BIDEN: Just a few weeks, all votes, this nation will be heard, they're the ones who the Constitution vision should decide who has the power to make this appointment.

(END VIDEO CLIP)

MACCALLUM: So that in direct contradiction to what then Vice President Biden told The New York Times back in 2016. When he said, the president has the constitutional duty to nominate. The Senate has the constitutional obligation to provide advice and consent. It is written plainly in the Constitution that both presidents and senators swear an oath to uphold and defend.

Here now, Deroy Murdock, contributing editor for the National Review Online and a Fox News Contributor. And Scott Bolden, Attorney, and former Chairman of the DC Democratic Party. Gentlemen, great to have both of you with us.

Thank you very much.

SCOTT BOLDEN, FORMER DC DEMOCRATIC PARTY CHAIRMAN: Thank you.

MACCALLUM: Scott, let me begin with you, if I may. Your reaction to those contradictory statements by Joe Biden on this issue?

BOLDEN: Well, I don't think they're contradictory in one sense. We all believe that in 2016 and then Mitch McConnell, the Senate majority leader, changed the rule, whether it's a rule written or otherwise, he disagreed.

And he essentially stole a Supreme Court nominee, Merrick Garland, from the Dems or from Obama to make that appointment. Got it, right. And even Senator Graham said at the time, you're making a new rule and it's going to come back to bite us or it may come back to bite us.

Well, a year out now, 45 days before an election, the same thing has happened. We have a Republican president and Mitch McConnell is still there. He is the only person that has the power to advice and counsel and set a vote. He had it in 2016, has it 2020 and now he is the one that is reversed.

And what you hear the Democrats arguing about is his hypocrisy and the GOP's hypocrisy on this. Not that they should move with haste, if you will, but Mitch McConnell and the GOP changed the rules and now they want to implement the old rule again. And it's going to come with repercussions.

MACCALLUM: I mean, there is an argument, Deroy, good argument I think that the sort of current state of Supreme Court tensions that we have - that we had in the Brett Kavanaugh moment do date back to that decision, right or wrong, from Mitch McConnell, because prior to that, we had Lindsey Graham, for example, voting for Sotomayor, voting for Kagan. Most of the votes prior to that were overwhelmingly in favor of the president's choice. And after that moment, we did see a very big change in how all of this plays out. What do you say, Deroy?

DEROY MURDOCK, FOX NEWS CONTRIBUTOR: We certainly had very, very contentious, and tumultuous Supreme Court battles, starting with Robert Bork back under Reagan and certainly with the Clarence Thomas nomination, those are not nice, smooth battles at all, as you might know. And I think this whole - as we think about this whole situation, Martha you've touched on this a little bit, but we ought to think about the wise words of none other than Ruth Bader Ginsburg.

And she said, and I'm quoting, there's nothing in the Constitution that says the president stops being the president in his last year. And it is the president's constitutional duty to fill this vacancy. It is the Senate's duty to advise and consent. They may decide not to accept the nomination, but they need to move forward on this. And I think the reasoning - among the reasons they need to do it right now is that we've got this incredibly complicated, bizarre election with all these mess mail- in-ballots flying around all over the place.

And we may get to a situation where we have to have the Supreme Court step in with the Michigan recount or the Pennsylvania recount or recounts elsewhere. And if it comes down to a four-four tie, how are we going to decide what to do if the Supreme Court deadlocks, we will get a ninth justice there, so we can have a five-four decision one way or the other.

MACCALLUM: That is one of the most compelling reasons to make sure that there are nine. And we heard, Justice Sotomayor actually said the same thing. She said, back in 2018 that you have to have nine. There's a reason why we need nine. And so, I think that that's an important consideration.

Take a look at this, Marquette University Law School - one second Scott, Marquette University Law School poll taken in the days before Ginsburg's death, 67 percent say that hearings should be held in a hypothetical Supreme Court vacancy. Only 32 percent said that the hearings should not be held, Scott.

BOLDEN: Yes, well, again, who's driving this narrative isn't Marquette. It isn't Biden, it isn't Obama. It's Senator Mitch McConnell, the majority leader in the Senate. But for him and what he did in 2016, we probably wouldn't be having this debate in 2020. But we are. And by the way, we've had eight Supreme Court justices before. We don't know how they're going to vote if you will. But this is a power grab on the part of Mitch McConnell and the GOP to stack the deck on the conservatism of the Supreme Court. And listen, I understand politics.

MACCALLUM: As President Obama said, elections have consequences. And we do see that. We see that playing out in a very big way here. But Mitch McConnell as the Senate majority leader based on the fact that Republicans have the majority in the Senate. So that is his role, like it or not.

BOLDEN: But there are risk associated with this with Senator McConnell as well. He has individuals who are in tight races, in red states that I've got to tell you, the Democratic electorate is going to be highly, highly motivated, not just highly motivated, and he puts them at risk. The other thing is, we've got to figure out whether they are four or more who are going to go along with Mitch McConnell or not. They may not be. And so, there are a lot of steps in between. But I will tell you that the Dems could impeach him. I think that's a waste of time if you will.

MACCALLUM: It is.

BOLDEN: But when you make a move like he's moving, making I've got to tell you, there are going to be repercussions and if the Democrats win--

MACCALLUM: All right, let me get Deroy in here, before we go. But I would just say that if they do go down the impeachment road, which would probably be politically perilous for them, it will just get tabled in the Senate.

MURDOCK: Exactly.

MACCALLUM: So that's why I said, yes, it's a waste of time. Deroy, quick thought before we go.

MURDOCK: Just quickly, Chuck Schumer said, I'm quoting, our system of checks and balances requires nine SCOTUS justices playing politics only weakens our democracy. And if the shoe were on the other foot and we had Majority Leader Chuck Schumer and President Hillary Clinton and one of the conservative justices passed away, it would be full speed ahead for the Democrats with the mainstream media cheering along and it would be a totally different story and there probably be hearings next week already.

MACCALLUM: Yes, we do not live in changing times. This is hardball politics across the board. And I don't doubt Deroy. We've got to go. Thank you very much, Scott, Deroy.

BOLDEN: Thank you.

MACCALLUM: Good to have both of you with us tonight. So, Democrats are warning that the GOP is playing fire, as we've just have been talking about, and that there will be consequences if they win the presidency and the Senate among them. They could potentially expand the size of the court in order to gain a liberal majority, adding two, adding four. Brett Tolman has worked as counsel for the Senate Judiciary Committee. He has some very interesting thoughts on this when we come back.

(COMMERCIAL BREAK)

MACCALLUM:  So as top Republicans press forward to fill the now empty Supreme Court seat in the wake of Justice Ginsburg's death Democrats are threatening to answer by potentially in the future expanding the number of justices who serve to balance out the court. Something that Congress hasn't done since 1869.

House judiciary chair Jerry Nadler tweeted in part, quote, "filling the SCOTUS vacancy during a lame duck session after the American people have voted for new leadership is un-Democratic and a clear violation of the public trust and elected officials. Congress would have to act and expanding the court would be the right place to start." Says chairman Nadler.

So former U.S. Attorney General Eric Holder echoed that sentiment. Here's what he said.

(BEGIN VIDEO CLIP)

ERIC HOLDER, FORMER ATTORNEY GENERAL OF THE United STATES:  If, in fact, they are successful in placing a justice on the court, we need to think about court reform and at a minimum as part of that reform package, I think additional justices need to be placed on the Supreme Court.

(END VIDEO CLIP)

MACCALLUM:  Joining me now, Brett Tolman, former Senate Judiciary Committee counsel and former federal prosecutor. Good to have you with us. I actually want to begin by playing --

BRETT TOLMAN, FORMER SENATE JUDICIARY COMMITTEE COUNSEL:  Thanks, Martha.

MACCALLUM:  -- this sound bite from Joe Biden in October 15th, 2019. Watch this.

(BEGIN VIDEO CLIP)

JOE BIDEN (D), PRESIDENTIAL CANDIDATE:  I would not get into court packing.

We had three justices, next time around we lose control, they had three justices. We begin to lose any credibility for the court has at all.

(END VIDEO CLIP)

MACCALLUM:  It seems like a pretty logical take. What's your take?

TOLMAN:  It is logical. It reminds me of many years ago, you had seasoned veterans like Senator Hatch and even Senator Leahy and Grassley and others who warned their respective sides about making drastic changes like this.

And you know, as a, what it reminds me of, Martha, is somebody who is in the middle of a ball game and is really upset and wants to take the ball and go home or rewrite the rules because they don't like what's happening and that's what we see going on all around us with these threats that are being thrown out.

MACCALLUM:  So, you know, I mean, there's other things that are being considered that we heard about. Impeachment process for, you know, basically having the gumption to go ahead and deal with the Constitution dictates at this point, there's also the possibility of adding Puerto Rico and D.C. as states which would add four new senators and in those cases, I think it's safe to assume that they would likely be Democrat. You know, that could not be true but that's the way it looks from here.

Your thoughts on some of the other things that they are suggesting and the fact that someone like Eric Holder and Jerry Nadler are among those who are kind of putting it into the bloodstream as an option.

TOLMAN:  Yes. I mean, this is outrageous to a degree that the individuals that are complaining that Mitch McConnell is using his position of authority to achieve a political end is willing to go to the extreme of actually modifying our very governing documents as well as doing whatever it takes to give them an advantage to give a liberal majority on the court.

They've proven that what they don't care about is the Constitution itself.

But they don't care about is the rule of law because the ends justify any means you have to get there and that's what I don't want to see. I don't want to see the Republicans do that if they were in power or the Democrats to do it if they are in power.

MACCALLUM:  So, you worked at the Senate judiciary committee, you know, it is a very tight time frame.

TOLMAN:  Yes.

MACCALLUM:  What should we be watching in terms of how this is going to go?

TOLMAN:  I will tell you, the president needs to nominate and do it immediately and they need to have an individual that they can all focus on.

That's the members of the Senate and the judiciary and Senator Graham has his work cut out for him. He's going to have to try to keep both the Republicans in line and bring folks like Senator Murkowski, Senator Collins, maybe even Senator Romney.

I think Amy Coney Bryant (Ph) -- Barrett is a fantastic nominee. I think she has the background that will rally individuals on the right, but he has to do it quickly and you have to see a chairman exercise some leadership that the country starts to see that they are having a legitimate process go forward, and let's face it, this is their time to work and to act according to the laws on the authority we've given them.

MACCALLUM:  Brett Tolman, always good to see you. Thank you so much, Brett.

We'll see you soon.

TOLMAN:  Good to see you.

MACCALLUM:  You bet.

TOLMAN:  Thanks.

MACCALLUM:  So, coming up, President Trump is expected soon in Swanton, Ohio, a preview of the crowd on the ground there tonight. We'll be back.

Stick around.

(COMMERCIAL BREAK)

(BEGIN VIDEO CLIP)

DONALD TRUMP, PRESIDENT OF THE UNITED STATES OF AMERICA:  This November if you want jobs, if you want opportunity, if you want safety, and if you want a president who defends the dreams of workers in Dayton and Akron and all across Ohio and America, then you need to get out and vote for Trump and Mike Pence.

(END VIDEO CLIP)

MACCALLUM:  Just a short time ago and it's a pretty quick trip from Dayton to Swanton, so you can see on the ground there, Air Force One has just landed, the president is preparing to make his second appearance in Ohio this evening. In 2016, he won the state by eight points.

Tonight, he will address the crowd there. It is a city on the border of Fulton and Lucas Counties as we said. So, it's an area where Hillary Clinton won one of those counties. President Trump won the other one. He won 64 percent of the vote in 2016 there, and as I said, losing Lucas County with -- to Hillary Clinton with just 38 percent of the votes. So that's an area where he is looking to pick up some ground.

National correspondent Bryan Llenas is there tonight and he joins us now.

Hi, Bryan.

BRYAN LLENAS, FOX NEWS CORRESPONDENT:  Martha, good evening. Air Force One just landing here at the airport in Toledo, Ohio. You know, no president, no Republican candidate has won the presidency without winning Ohio and its

11 electoral votes. The president starting in Dayton tonight and then just landed here in Toledo 150 miles north.

The big picture here in Ohio, President Trump won by eight points by flipping nine counties that had voted for President Barack Obama in 2008 and in 2012. Toledo is right near four of those pivotal counties. And the latest polls had the race here neck and neck between Biden and Trump.

Now, both the Vice President, Mike Pence, and Donald Trump Jr. have made campaign stops here in Ohio over the last couple of weeks and frankly, you couldn't find a bigger contrast between the president campaigning style and Biden than here in Ohio. Biden has not visited Ohio since March. They have been heavily relying on television ads, but this was the president just moments ago speaking about the message that he has had for all Ohio voters that the economy is stronger under him. Take a listen.

(BEGIN VIDEO CLIP)

TRUMP:  The choice in November is going to be very simple. There's never been a time where there is such a difference. One is probably communism. I don't know, they keep saying socialism. Joe Biden spent the last 47 years shipping your jobs to China and foreign countries. You know that.

(CROWD BOOING)

TRUMP:  And I've spent the last four years bringing the jobs back to our country.

(END VIDEO CLIP)

LLENAS:  Eighty thousand jobs have been added here in Ohio under President Trump's presidency, but the reality is that 400,000 jobs have been lost in Ohio under the pandemic. When you speak to voters here, they blame the Republican governor DeWine, but the Biden campaign came out with a statement today saying that it was the president's bungled response to the pandemic that has less -- led to lost jobs here in Ohio.

The bottom line though, when we spoke to voters here, they also had big opinions when it came about -- when it comes to the Supreme Court vacancy.

We spoke to some voters. Take a listen.

(BEGIN VIDEO CLIP)

UNIDENTIFIED FEMALE:  I am excited for the Supreme Court justice, and I think Amy Barrett sounds like an awesome candidate.

UNIDENTIFIED FEMALE:  Motivation is his right for religious freedom, for abortion, for the Supreme Court justices, for what he's done for immigration, for building the wall.

UNIDENTIFIED MALE:  We've been disappointed with Roberts in many of his decisions, they haven't been consistent with what he had claimed to be before. I think it's important that we have rule of law.

(END VIDEO CLIP)

LLANES:  Ohio at center stage tonight and just over a week from now will be center stage again where our Chris Wallace will be moderating the very first presidential debate on September 29th. Martha?

MACCALLUM:  Yes, we are heading out there next weekend, and we're looking forward to it. Bryan, thank you so much. We're going to take you live back to President Trump in Ohio this evening right after this. Stay with us.

(COMMERCIAL BREAK)

MACCALLUM:  So here is the scene in Swanton, Ohio as you can tell. They are waiting for President Trump to get off of Air Force One this evening.

So, I'm going to bring in Katie Pavlich, editor of Townhall and a Fox News contributor, and Chris Hahn, former aide to Senator Chuck Schumer and syndicated radio host. Thanks to both of you for being here tonight.

You know, we talked earlier in the show about Mitch McConnell and the Merrick Garland part of this story and then when you kind of move forward, you look what happened with Brett Kavanaugh and there is no doubt that there was a lot of residual anger over Merrick Garland that kind of flowed into that part of the process, and that now we see much more contentious tighter situations with regards to these votes.

I just want to remind everybody because Kamala Harris obviously is still a senator and is a big part of the equation here. This is the exchange between Kamala Harris and Brett Kavanaugh back then. Watch.

(BEGIN VIDEO CLIP)

BRETT KAVANAUGH, ASSOCIATE JUSTICE, UNITED STATES SUPREME COURT:  The FBI would gather witness statements. Do you have witness statements?

(CROSSTALK)

SEN. KAMALA HARRIS (D-CA):  Sir, it's -- I'm not -- I don't want to debate with you how they do their business. Are you willing to ask the White House to do it? And say yes or no, and then we can move on.

KAVANAUGH:  They had six background investigations over 26 years --

(CROSSTALK)

HARRIS:  Sir, as it relates to the recent allegations, are you willing to have them do it?

KAVANAUGH:  The witness testimony is before, no witness who was there supports that I was there.

HARRIS:  OK. I'm going to take that as a no and then we can move on.

(END VIDEO CLIP)

MACCALLUM:  Wow. You know, Katie, it takes you right back to how tense it was back then and you have to kind of feel for what's coming with these potential candidates and what they're probably going to be put through.

KATIE PAVLICH, FOX NEWS CONTRIBUTOR:  Yes, not only was it tense but it was unjust, unfair, and dishonest. There were a number of smears that were launched against Brett Kavanaugh and his family that ended up not being true.

You know, the media sure blew up all of the allegations against Brett Kavanaugh but when the Senate judiciary committee issued a 400-plus page report showing the detailed investigations of every single one of those claims and whether they panned out with witness testimony or evidence, none of them ended up being true.

In fact, a number of people who made claims that they made them up and they were referred for criminal prosecution by the Senate judiciary committee to the Department of Justice. There is no excuse for what happened to Brett Kavanaugh, and the fact is that Republican senators in the past regardless of political disagreements have voted for nominees put up by people like President Obama and President Clinton.

And yet here we are now with Democrats demanding that there be some kind of grace and trust when it comes to future nominees and holding off, or that there would be any grace given or respect to their nominee, and yet they haven't shown any of that and they didn't show it during the Kavanaugh case.

MACCALLUM:  Well, I'm sad to say that grace seems to be something that's been completely lost in Washington, D.C., and revisiting, and you're right, Katie, you know, when you look through that report of the after action on that, it is despicable and it's also despicable you didn't hear more about that report, Chris Hahn, in terms of what they uncovered and how difficult and dismal that whole chapter was.

PAVLICH:  Yes.

CHRIS HAHN, FORMER AIDE TO SEN. CHUCK SCHUMER:  Well, you know, this is the environment that Mitch McConnell created when he blocked Merrick Garland and not just blocked Merrick Garland, he refused to vote on any Obama judicial nominees on any level which led to the elimination of the filibuster for judicial nominees below Supreme Court. This is what that that ring -- brings.

McConnell is responsible for the environment in Washington more than any other individual in this country, more than Donald Trump, more than anybody else. He has brought this on himself and now his blatant act of hypocrisy filling a seat 46 days before an election --

(CROSSTALK)

MACCALLUM:  Yes. But Chris, as you know as well as I do --

(CROSSTALK)

HAHN:  -- when he said he wouldn't do it for 10 months.

MACCALLUM:  You know what, I understand where you're coming from and I think it's true that a lot of people would agree with you that it traces back to then. You can also go back to very contentious Clarence Thomas, Robert Bork so it's not as if it has never happened in the past.

PAVLICH:  Yes.

MACCALLUM:  There's President Trump coming down the escalator --

(CROSSTALK)

HAHN:  John Roberts got in without any fight at all.

MACCALLUM:  -- not the escalator -- the terrace. No. It used to be different.

HAHN:  I mean, there's --

(CROSSTALK)

LEMON:  There's no doubt about it. It used to be different.

HAHN:  Yes.

MACCALLUM:  You know, with regard to Ohio, I just want to switch gears with both of you for a moment here because this is becoming perhaps a more tightly contested state, Katie, when you look at the suburbs and the changing nature of Ohio, this is no longer a place that the president can count on necessarily and he is working hard there to counter -- counteract that. Your thoughts?

PAVLICH:  Yes. I think the president has made it clear that he is not going to take any state for granted, no voters for granted. And he watches the show up in states that he won to remind that he doesn't forget that they put him into the White House last time around.

Ohio is one of those places he is going to have to fight for the votes, Pennsylvania is another one but Minnesota is one that Joe Biden is losing ground in. So, the map can change very quickly --

MACCALLUM:  Yes.

PAVLICH:  -- and it has over the recent days.

MACCALLUM:  I got about 20 seconds, Chris, your thoughts before we go?

HAHN:  Always run scared, the president has got to run scared in Ohio, he's got to run scared in Georgia, North Carolina, Texas, states that should be solid for him. They are running away from him because he is a failure on

COVID-19 and our economy. And America just wants to have peace. They don't want to think about the president all the time. He makes us have to do that, that's why this election is so tight.

MACCALLUM:  All right. Both sides here tonight. Thank you both. Good to have you here as we watch the president in Swanton, Ohio. More of THE STORY and the president right after this. Stay with us.

(COMMERCIAL BREAK)

MACCALLUM:  Thanks for joining us tonight, everybody. That is THE STORY of Monday, September 21st. But as always, THE STORY goes on. So, we'll see you back here tomorrow night at seven. President Trump is in Pennsylvania. Good night.

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