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This is a rush transcript from “The Five" October 14, 2020. This copy may not be in its final form and may be updated.
SEN. KAMALA HARRIS (D-CA), VICE PRESIDENTIAL NOMINEE: She went on to
explain that quote, "Employees must have the capacity to act collectively
in order to match their employer's clout in setting terms and conditions of
employment." She urged the court to consider the quote, "extreme
imbalance," unquote of power in our nation's work spaces and avoid further
undermining Congress' passage of labor laws to protect workers and place
them on equal footing.
Do you recognize Justice Ginsberg's point that there is quote, "extreme
between imbalance of power between large corporations and individual
workers?"
JUDGE AMY CONEY BARRETT, NOMINEE TO THE U.S. SUPREME COURT: Senator
Harris, I'm going to give you the same answer that I gave you with respect
to the sentence that you quoted me from Chief Roberts' opinion in Shelby
County. That I just -- I'm not going to engage in critiquing or embracing
portions of opinions, especially opinions that have been recently decided
and are contentious from the court.
HARRIS: And you have been on the bench a short time. But I'm going to just
point out that I do believe, and commentators have noted a pattern that you
have of ruling against workers in favor of corporations. For example, in
Buloca (ph) contact transportation services, you ruled against long haul
truckers seeking overtime pay for additional work.
(Inaudible) you ruled against delivery drivers seeking overtime pay,
forcing the court into private arbitration. In Harris, the YRC Worldwide,
you ruled against four black truck drivers who alleged their employer,
assigned them less desirable routes when compared to their colleagues and
(Inaudible) Department of Transportation.
You ruled against a black worker who was called a racial slur by his
supervisor. In fact, if you go on, according to an independent analysis
(Inaudible), it appears you have sided with business interests over workers
and consumers in about 85 percent of your business-related cases. Moving
on, climate change, as many have mentioned is an existential threat and its
effects are all around us.
In California, we've had five of the six largest wildfires in the state's
history. Thirty one people have been killed by wildfires in California
since August alone, including at least two firefighters and a helicopter
pilot. Across the state, over 9,000 homes and structures have been burned,
and Californian has been forced to breathe dangerous smoke, all this
obviously during a pandemic, which attacks the respiratory system.
But rather than work to combat climate change, the Trump administration has
rolled back environmental protections and removed the word -- the term
climate change from government agency websites, including the EPA. In 2007,
in Massachusetts versus EPA, the Supreme Court decided by a 5-4 ruling that
states could sue the EPA for its failure to combat climate change during
the Bush administration.
Justice Ginsberg was the crucial fifth vote in that case. Following that
ruling, the EPA responded by unequivocally finding that climate change and
its impacts are a danger to the public health and welfare. Justice Barrett,
yesterday, you said that quote, "you have read things about climate change,
but you would not say you had firm views on it", unquote.
In response to Senator Blumenthal today, you said quote, "you are not
competent (Inaudible) on what causes global warning and that you don't
think your views on global warming or climate change are relevant to the
work you do as a judge." I certainly do believe your views are relevant.
And I'm very concerned about your statements.
Since the Massachusetts v. EPA case, scientific consensus has grown even
more and stronger that climate change is real, and it is caused by manmade
greenhouse gas pollution and it poses significant threats to human life. If
a case that comes before you would require you to consider scientific
evidence, my question is will you defer to scientists and those with
expertise in the relevant issues before rendering a judgment?
BARRETT: If a case comes before me involving environmental regulation, I
will certainly apply all applicable law, deferring when the law requires me
to. And as I'm sure you know, Senator Harris, the Administrative Procedure
Act does require courts to defer to agency fact-finding and to agency
regulation when they're supported by substantial evidence.
(CROSSTALK)
BARRETT: So yes, I would apply that law and defer when the law requires me
to defer.
HARRIS: And do you accept that COVID-19 is infectious?
BARRETT: I think yes. I do accept that COVID-19 is infectious. That that's
something of which I feel like, you know, we could say you take judicial
notice of. It's an obvious fact, yes.
HARRIS: Do you accept smoking causes cancer?
BARRETT: I'm not sure where exactly you are going with this but, you know
the notice --
(CROSSTALK)
HARRIS: The question is what it is.
BARRETT: Senator Harris, yes, every package of cigarettes warns that
smoking causes cancer.
HARRIS: And do you believe that climate change is happening and it's
threatening the air we breathe and the water we drink?
BARRETT: Senator, again, I was wondering where you were going with that.
You have asked me a series of questions, like, that are completely
uncontroversial, whether COVID-19 is infectious, whether smoking causes
cancer, and then trying to analogize that soliciting an opinion on me that
is a very contentious matter opinion from me that is on a very contentious
matter of public debate.
And I will not do that. I will not express a view on a matter of public
policy, especially one that is politically controversial, because that's
inconsistent with the judicial rule, as I have explained.
HARRIS: Thank you, Judge Barrett. And you made your point that you believe
it is a debatable point. Mr. Chairman, these proceedings, I believe, lack
legitimacy in the eyes of the people of our country. Americans are right
now suffering from a deadly pandemic and we are all suffering a historic
and economic crisis.
The Senate should be working day and night to provide economic relief to
families and not rushing a Supreme Court confirmation. We are also in the
middle of an election. More than 12 million Americans have already voted.
The American people want whoever wins this election to fill this seat. My
Republican colleagues know that, I believe.
This hearing has done nothing to alleviate the concerns raised about why
this nominee was chosen and why this is being rushed when the American
people deserve to be heard. So again, I would say let us not pretend that
we don't know what consequences rushing this confirmation will have for the
American people. There are countless issues at stake. And to be candid,
people are very scared.
They are scared that allowing President Trump to jam this confirmation
through would roll back rights through generations, scared about what it
means to the future of voting rights, about what it means for civil rights,
or workers rights, for consumer rights, for climate change, and the right
to a safe and legal abortion, not to mention access to healthcare
regardless of income or pre-existing conditions.
They are also deeply concerned about what this means for our nation's
continued pursuit of the timeless principle equal justice under law. And I
share those concerns. My Senate Republican colleagues are doing, I believe,
great harm with this illegitimate process. And if they are successful, it
has potential to do great damage.
And I believe that damage is to the people of our country and to the United
States Supreme Court. Thank you, Mr. Chairman.
UNIDENTIFIED MALE: Thank you, Senator Harris. Senator Kennedy.
SEN. JOHN KENNEDY (R-LA): Thank you, Mr. Chairman. Judge, let's try to
answer some of Senator Harris' accusations. Are you a racist?
BARRETT: I am not a racist, Senator Kennedy.
KENNEDY: You're sure?
BARRETT: I'm positive.
KENNEDY: Do you support, in all cases, corporations overworking people?
BARRETT: I do not. And I think if you look at my record, you will see
cases in which I've decided in favor of plaintiffs, not corporations.
KENNEDY: Are you against clean air, bright water, and environmental
justice?
BARRETT: I am not against any of those things. Those are policies that the
Congress has pursued in many statutes. And I think we all reap the benefits
of when those statutes work.
KENNEDY: Do you support science?
BARRETT: I do. And I help my children with their homework when they are
trying to learn it.
KENNEDY: You're sure of that?
BARRETT: I'm sure I believe in science, and I support science.
KENNEDY: Do you support children and prosperity?
BARRETT: I support children, seven of my own, and then support others. You
know, obviously, I think children are our future. I support children. And
yes, I support prosperity.
KENNEDY: Do you hate little warm puppies?
BARRETT: I do not hate little warm puppies?
KENNEDY: OK, I just wanted to get all that clear. See, we did that in
about two minutes.
BARRETT: I think that my daughter Julia, whose 10, would want me to put in
a plug right now to say I do not hate chinchillas, because we don't have a
puppy in the Barrett house, but we do have a fluffy chinchilla. And so I
don't hate chinchillas, either.
KENNEDY: Duly noted. Look, Senator Harris is my friend. And I get it.
She's running for vice president. But I want to address these voting rights
allegations. Senator Harris has implied that some states are pristine and
others states aren't in terms of discriminating against people on the basis
of gender, or race, or ethnicity. We disagree. She thinks America is
systemically racist.
I don't. I think our entire history is the best evidence of that. I don't
think we're a racist country. I think we're a country that has some racists
in it. But, you know, I'm very proud of the fact that our country has gone
from -- in 150 years, which in the grand scheme of life, death, and the
resurrection is the blink of an eye. We've gone from institutionalized
slavery to an African-American president.
We've passed -- I'll miss some of these dates. But we've passed civil
rights laws. And I think 1869, 1871, 1957, 1961, 1965, 1990, 1991, I'm
pretty proud of that. But let me get back to my point. My good friend,
Senator Harris, and she is my friend, I have enormous amount of respect for
Kamala. She suggested that some states are wicked and other states are
pristine.
And I would gently remind her that California, a state I love, and I love
visiting California. You got to keep moving because they will tax you if
you stand still, but I love California. But California has a deep history
of discrimination against Asian-Americans. California has a deep history of
discrimination against Hispanics.
And I'm not saying that this is true. But there have been serious
allegations made against Senator Harris, that as attorney general of the
wonderful state of California, that she participated in racial disparities
and prosecution. Let me jump subjects again. We've talked about precedent
and (Inaudible) and why it is important. We need to have stability. People
need to be able to rely on the law.
But you're not suggesting that the United States Supreme Court never has,
nor should it ever reverse precedent if they think they got it wrong, are
you?
BARRETT: No, the Supreme Court has always acknowledged that there are
circumstances in which it must be able to reverse precedent.
KENNEDY: And you mentioned reliance interests. How many Americans have
relied on a particular decision by United States Supreme Court as a factor
in deciding whether to overturn that precedent?
BARRETT: Yes.
KENNEDY: Reliance interests are not dis-positive, are they?
BARRETT: Reliance interests are not dis-positive. For example, in Brown
versus the Board of Education, I mean, clearly, the south had an entire
system of segregated schooling. So they relied on (Inaudible) versus
Ferguson, reliance was not dis-positive there because --
KENNEDY: There were a lot of reliance interests on (Inaudible) v.
Ferguson, weren't there?
BARRETT: There were. I think Brown illustrates that reliance interests are
not dis-positive. You have to look at all the factors (Inaudible).
KENNEDY: OK, yesterday another friend, Senator Booker, Rhodes scholar,
hell of a tight end, too, Stanford. He asked you if you emphasize with
people struggling to pay for healthcare. And of course, you appropriately
said yes. I mean, we all do. Under our Madisonian system of separation of
powers and checks and balances, which branch of government is supposed to
address the struggle that many Americans have to afford healthcare,
Congress or the United States Supreme Court?
BARRETT: Congress, Senator Kennedy.
KENNEDY: Let's talk just a second about state constitutions. I know you
know this. But we forget sometimes that state constitutions preceded our
federal constitution, am I right? And in fact, there are parts of our
federal constitution that were copied from state constitution. Having said
that, there are a lot of provisions of December (ph).
For example, we know we have a Fourth Amendment on the federal
constitution. Many states have their own version of the Fourth Amendment.
BARRETT: Yes.
KENNEDY: What happens when a state Supreme Court construes its Fourth
Amendment differently than the United States Supreme Court construes the
federal Fourth Amendment?
BARRETT: So the state is free to construe its Fourth Amendment
differently, as a matter of state law. But of course, the federal
constitution also applies to the state -- to the supremacy clause. So a
state isn't free to violate the Fourth Amendment. But one thing states
often do, which I'm sure you know, because, you know, of your interest in
state constitutions.
And we talked about Louisiana constitution yesterday, is that many states
interpret their versions of the Fourth Amendment or other provision to be
even more protective of rights than the United States constitution.
KENNEDY: So the federal constitution sets a floor?
BARRETT: But not a ceiling.
KENNEDY: So if Louisiana wants to construe its Fourth Amendment as not
having any exceptions to the warrant requirement, we could do that.
BARRETT: States are free. They are free to fashion their policies as they
want within the limits of the federal constitution. And so contours of the
federal Fourth Amendment would not themselves prohibit Louisiana from doing
that.
KENNEDY: Yeah. Why does that make sense to you?
BARRETT: Well, that's federalism. So my friend, Judge Jeff Sutton, on the
sixth circuit has written a book called 51 Imperfect Solutions. And his
point is that, you know, we have all these laboratories of democracy, as
they are called. The states and its federalism, different states have
different preferences. Their electorates can make different decisions in
Louisiana than in Indiana than in California.
And so if some states want to have greater protections, and many do, we
allow those differences to flourish within the limits of the common
denominator that we have, which is the United States constitution.
KENNEDY: And that is just respect of the states.
BARRETT: That is.
KENNEDY: The federal constitution has a state action requirement, am I
right?
BARRETT: It does.
KENNEDY: OK. Would a state be free to not have a state action requirement?
BARRETT: I am not aware of any principle that would prevent a state from
statute or constitutional provision. States can be the master of their own
constitutions.
KENNEDY: And what do I mean when I'm talking about state action?
BARRETT: state action requirement. So the only constitutional provision, I
think, in our constitution that applies directly to individuals is the 13th
Amendment, which prohibits slavery. The 14th Amendment, you know, which is
the context in which the state action requirement has been explored in
Supreme Court case law in the civil rights cases.
It means that the equal protection guarantee or even all the Bill of Rights
that are incorporated through it, like the First Amendment, only apply to
the government. So when I'm teaching this to my law students, what I tell
them is that I can tell my kids at the dinner table. The First Amendment
doesn't apply here. Hey, what about my freedom of speech?
And then they'll say you don't have any, because in my house, it is the law
of Amy. So the public universities, you know, are different than private
universities in that regard. The First Amendment applies to government-run
institutions, but not to private universities.
KENNEDY: Yeah. I don't know what the laws are right now. But I think there
was a case. Maybe it's been overruled. But the California Supreme Court,
based on its constitutional history, has ruled that the First Amendment in
the California constitution or the First Amendment verse has no state
action requirement. It doesn't protect you against government. It protects
you against everybody.
BARRETT: I didn't know that.
KENNEDY: It's an interesting litigation. I read somewhere that you are an
admirer of Kate Chopin?
BARRETT: Oh, yeah.
KENNEDY: Who is -- tell us who she was and why you admire her.
BARRETT: Well, she -- I -- when I was in college back in my English major
days --
KENNEDY: She's a Louisiana -- was a --
(CROSSTALK)
BARRETT: That is right. She wrote a book, focused on Louisiana. And a
woman who comes to Louisiana from -- now I can't remember what part of the
south she was from, and talked about her -- becoming accustomed to New
Orleans and its particular culture. And I very much appreciated that,
because, you know, especially, you know, as a New Orleanean.
I thought it was insightful look into what the history of New Orleans is
like. And my family, you know, my great, great grandparents came to New
Orleans from France. And my family has been in New Orleans for generations,
and so its history is important to me.
KENNEDY: Ms. Chopin had a very feminist point of view, too, did she not?
BARRETT: She did, so the awakening --
(CROSSTALK)
KENNEDY: Before her time.
BARRETT: She did.
KENNEDY: Two more. Tell me what the legal authority is, if you know, for a
universal injunction. We have got about 600 federal judges, federal
district court judges. I could be off by a few. And they have -- they not
only have limited jurisdiction but they have limited venue, if you will.
They hear cases in a certain geographical area.
How can one federal district court judge in a limited venue enjoin (ph) a
congressional statute or a presidential executive order for the entire
United States, continental and otherwise?
BARRETT: Well, that is a disputed issue of law that's in litigation in the
court. It's been on the court's docket, the authority of district courts
that issue nationwide injunction. So that would, you know, take me down the
path of opining on a case that could wind up in litigation in front of me.
KENNEDY: OK. I got one last question.
BARRETT: Hope it's an easy one.
KENNEDY: It is. I'm -- it's a sincere question. I'm genuinely curious. Who
does the laundry in your house?
BARRETT: We increasingly have been trying to get our children to take
responsibility for their own. But those efforts are not always successful,
so we run a lot of loads of laundry.
KENNEDY: Well, you're very impressive, Judge.
BARRETT: Thank you, Senator.
KENNEDY: I yield back, Mr. Chairman.
UNIDENTIFIED MALE: Thank you very much, Senator Kennedy. Senator
Blackburn.
MARSHA BLACKBURN (R-TN): Thank you, Mr. Chairman.
DANA PERINO, FOX NEWS ANCHOR: All right. You've been watching the second
day of questioning of Amy Coney Barrett, the nominee that President Trump
has put forward to be next Associate Justice of the United States Supreme
Court. We are going to continue monitoring that hearing. We will bring you
some more. But we do want to give you a little bit of taste of what THE
FIVE is thinking.
We have everybody here today, Kennedy, Juan, Jesse, and Greg Gutfeld is
here. You know, I do want to just jump right here, Greg, and play a little
sound from earlier from Senator Klobuchar of Minnesota.
GREG GUTFELD, FOX NEWS ANCHOR: Klobuchar.
PERINO: Klobuchar. If we could do maybe -- I just felt like it was pretty
aggressive, OK, which is fine. And I think that Judge Barrett handled it
well. Let's play thought number three and get Greg's thoughts overall and
on this particular sound.
(BEGIN VIDEO CLIP)
SEN. AMY KLOBUCHAR (D-MN): Did you have then a general understanding that
one of the president's campaign promises was to repeal the Affordable Care
Act when you were nominated?
BARRETT: I -- as I said before, I'm aware that the president opposes the
Affordable Care Act.
KLOBUCHAR: I know you're aware now, but were you aware back then?
BARRETT: Well --
(CROSSTALK)
KLOBUCHAR: -- when you were nominated.
BARRETT: Well, Senator Klobuchar, I think that the Republicans have kind
of made that clear to the public discourse.
KLOBUCHAR: OK. Is the answer yes then?
BARRETT: Senator Klobuchar, all these questions you are suggesting that I
have animus or that I cut a deal with the president. That was very clear
yesterday that that isn't what happened.
(END VIDEO CLIP)
PERINO: All right, Greg, thoughts?
GUTFELD: Well, I mean, the one that I don't like about these hearings in
general is that you learn about a person in how they wield their power when
they have it. Like, if they have this authority to treat you like crap, and
they do. Then they are a terrible person. But if you have the authority to
hammer somebody, but you do it with some kind of grace, that is different.
And it seems to me watching Klobuchar and watching Kamala Harris, these are
people that -- they just come off smaller and they come off petty. They are
like mean girls, and they're just jealous because this person happens to be
smarter and more successful than they are. That is the impression I get
when I watch this. I think so far, my impression is that this is one tough
cookie.
And I am assuming, like, this to her is like a day off. Like, you know,
she's got seven kids and like, you know what, I think for fun, I will go
stick around in the Senate hearing and let these bozos bother me. She is
not above the law, but she is definitely above the fray when it comes to
watching her kind of like -- she is so relaxed. I didn't like the fact that
when she asked about puppies, she deflected to chinchillas.
Answer the damn question. It is about puppies, not chinchillas. But lastly,
I think she's got the perfect -- you guys are so silly face, when she's
looking while people are talking. You can just see it on her face. And that
is pretty impressive. She's playing chess and they are playing KerPlunk.
But my last point is as a viewer watching this. I always feel like I'm in
line at TSA.
And you're watching that performative theater of the TSA agents, like,
searching forever for a little -- on a little old lady in a wheelchair. You
know she's getting through. You know she's no threat. But she's going to
get through. But they have to do this performative karaoke. And everybody
in line has to sit and watch it. That's what this is. We know she is going
to get in.
She's doing a great job. They're not going to get her on anything. But yet,
we have to do it. Having said that, I've been wrong about people not
wanting to watch this, because the ratings are insane, and I thought that
no one would be interesting.
PERINO: You think she's just so compelling that people really wanted to
watch it. Can I play for you thought number six, Jesse? This is the one
where Senator Durbin is pressing her on whether the president has the right
to delay an election.
(BEGIN VIDEO CLIP)
UNIDENTIFIED MALE: Does the constitution give the president of the United
States the authority? Listen closely to what she asked you, to unilaterally
delay a general election under any circumstances. You didn't want to give
off the cuff answers like a pundit. But rather approach matters with an
open mind.
BARRETT: I've given that response to every hypothetical that I've been
asked in the hearings. And I've said yesterday, I do that regardless
whether it is easy or hard. I don't do that to try to -- whether the
question, I mean, would be easy or hard. I don't to try to do that to
signal it. But I do that because it would be inappropriate for me to make a
comment.
And I don't think I've answered any legal hypotheticals in keeping with the
Justice Ginsberg Rule.
(END VIDEO CLIP)
PERINO: I mean, she's just steady, just a steady hitter.
JESSE WATTERS, FOX NEWS HOST: She should have pulled the Ginsberg Rule
when asked about puppies. I don't want to comment about puppies that might
before the court. I hate to agree with Juan, but I have to. He made an
excellent point the other day. For last 30 years now, these nominees come
up. And they are not going to say anything about past cases.
They're not going to say anything about future litigation. And that's what
the liberal justices have done. That's what all the justices have done. So
to watch these senators that don't have the sharp of an intellect try to
pin this woman down, who is brilliant on these cases, it is almost like
sport watching her deflect some of these senators the way they have.
And some of these senators that we talked about who yesterday, we don't
want to go name names again. But you can tell the people that have lost
their fastball. And you can tell others like a Durbin, or a Blumenthal or
Coons, who are a little bit sharper with their questioning. But she's going
to sail through. No one's laid a glove on her.
And according to latest Monmouth poll, a large portion of the country now,
morality want her confirmed. So if she asked, I think, about Obamacare, do
we have the Jenga sound byte, Dana?
PERINO: Let me check.
(CROSSTALK)
WATTERS: -- as someone that plays Jenga with my daughters, this is a
perfect answer for how she would handle Obamacare. If we don't have it, the
basic answer is the mandate may be able to come out. But it doesn't mean
the entire Jenga castle falls down.
(CROSSTALK)
WATTERS: That is actually kind of a conservative judicial philosophy
because it's judicial restraint. You let the legislators legislate and you
don't overreach. And I think a lot of people felt good about that on I
think both sides of the aisle because right now it does look like ObamaCare
is such a disaster that they're going to have to go back and fix it.
Ted Cruz said it's raised premiums for the average family $7,000. And
insurance companies are getting paid hundreds and millions of dollars in
subsidies. And it is ironic that some of these senators ran for president
in the primary promising to eradicate ObamaCare. They want to get rid of
it, and they want Medicare for all, and now they're begging Amy Coney
Barrett to keep it there. It doesn't make a lot of sense.
PERINO: Can I say something that also what you'll see is she'll get on
court. Right now, the Democrats really want this issue of severability not
to be included, right. The Jenga example was a very good one because of
what you just said in terms of judicial restraint. But the Democrats want
you to believe --
WATTERS: Right.
PERINO: -- that the whole thing is going to fall, and she was going to--
WATTERS: They want the fear.
PERINO: But then, after the election when she's on the court, if she says
that the opposite, then that's what they're going to want. So, they want
one thing here for politics, but they would rather have the opposite in
reality.
Kamala Harris, the former -- not former, excuse me -- Senator, she's now
running for vice president, she's in the building but she didn't come to
the hearing room because she was protesting, Kennedy, the way that the
hearing was being conducted in terms of COVID protocols. But how do you
think she did in this questioning today?
LISA KENNEDY MONTGOMERY, FOX NEWS HOST: I don't think that she has come up
particularly well, against Amy Coney Barrett. And she has the kind of
background, the prosecutorial background, and especially as an attorney
general, that she should be able to use more tools at her disposal and do a
better job of appealing to the base and independent voters and people who
might have an issue with the timing of this nomination. And instead, I
think she has come off like she has during her lower points during the
debate.
And to Jesse's point, she was one of those people who was using the ACA
shtick which you can see right through, you know, exactly what each one of
these senators are doing with, you know, this fallacious anecdotal evidence
trying to show the worst-case scenarios from their state. She was the one
who not only signed on as a co-sponsor for Medicare for all, she also
proposed her own socialized health care system when she was running for
president that as we talked about, is one of the great doings of her
campaign. And she also talked about completely demolishing private health
insurance.
So, you know, he or she is appealing to save the ACA as though ACB is going
to be the one to bring a sledgehammer to the law single-handedly. But at
the same time, she could -- she could do the same sort of professorial job
of taking apart her arguments and twisting her words around in a way that
Judge Barrett would have to answer, and I don't think she's done that
effectively.
PERINO: Juan, is there anything that has not come up in these hearings that
you wish had? Is there something that she hasn't answered, that you think
would have been useful for Americans to hear?
JUAN WILLIAMS, FOX NEWS CHANNEL HOST: Well, I mean, you know, so I'm
repeating myself, Jesse picked up on this, that I think it's both Democrats
and Republican nominees, basically don't answer questions. But the
Democrats in this iteration have tried to say, wait a second, hold on,
there are people who have answered questions.
And today, in specific, what you saw was they said, listen in the Griswold
case, which has to do with contraception, Chief Justice Roberts said that
case was properly decided. And of course, you know, for people who don't
know, that case has lots to do with privacy rights that then extend into
issues like Roe v. Wade.
So, she says, oh, you know what, I can't answer that. And so, what you get
is senators like Blumenthal, but also Cruz and others saying, well, wait a
second, other justices now sitting on the court did in fact respond to us
that this case was properly decided. She wouldn't do it. And I thought that
was disappointing.
I wish that she would at least say yes, of course, that's probably decided.
The only case that she says we're properly decided go back to the right of
Marbury, the right of the court to interpret the constitution, and
secondly, Brown v. Board of Education with regard to school segregation and
loving that extends from that.
MONTGOMERY: She was -- yes, in terms of super precedent.
WILLIAMS: But you know, to me, the big point here is, look, we're playing a
game in which we know that if you look at Justice Thomas, Justice Scalia,
Justice Alito, that every time an Obama type of legislation or law came
before them, they said, no, they're just like, Red Team, Blue team. No. And
the Republicans are rushing this through because they know she'll be around
fourth vote.
And when we think about something like the Affordable Care Act, we know
that in fact President Trump has said he wants it undone. He has offered no
replacement. And he thinks that she is going to be another vote to
absolutely undo the Affordable Care Act.
PERINO: Can we play a little bit of sound from that. So, Greg, this is her
talking about the Affordable Care Act and her position.
(BEGIN VIDEO CLIP)
JUDGE AMY CONEY BARRETT, U.S. SUPREME COURT NOMINEE: I have certainly no
agenda. I'm not on a mission. I'm not hostile to the ACA at all. And if I
were on the court, and if a case involving the ACA came before me, I would
approach it with an open mind, just like I do every case and go through the
process that we've just discussed.
(END VIDEO CLIP)
PERINO: Can you -- I mean, I don't know if you can ask for more than that.
GREG GUTFELD, FOX NEWS CHANNEL HOST: Also, I mean, I reject the idea that
because you don't like something, that makes you hostile to it. We are
actually accepting the language and the rhetoric of the left that somehow
that we've introduced this monstrosity of a social program. And we're all
supposed to say yes, it's here with us for life. No, we know their problems
with it. That doesn't make us hostile, that just makes us, you know, human
beings with brains.
The bigger thing that I have about this whole process is that you have a
lot of liberal left-wing women are using things like this and abortion to
portray this wildly successful female is somehow a slave to patriarchy,
comparing her to The Handmaid's Tale, dressing up like The Handmaid's Tale.
She's super religious so she must be -- you know, she must be subservient
to men.
Meanwhile, they Hironi or whatever her name is, I can't remember.
PERINO: Hirono.
GUTFELD: Accuses her if she asks her if she ever committed sexual assault,
right. I think it's --
PERINO: I mean, it's something that Hirono asks every single nominee.
GUTFELD: That's -- I get it. I understand. But if you were making the case
that, you know, men persecute women, and you have to make this case in the
-- in the interest of equality, to ask that woman that question, the
interest of equality is purely absurd.
PERINO: Yes.
GUTFELD: It's absolutely absurd. You have a family sitting there. I don't
know if they were there at that time, but they were there before, to ask
that question in the interest of "equality" is a farce. And so, the irony
of her being -- saying that she's subservient to men, she's, in fact, being
treated worse by women than by men.
WILLIAMS: I don't think anybody brings up the fact that she's a woman with
all these kids. I mean, we have people on the court who have families and
children, but I think conservatives thought like saying, oh, she's a --
she's just a woman --
MONTGOMERY: Have you seen -- have you seen some of the stuff on Twitter
from feminists?
WILLIAMS: No, it's not. Look --
GUTFELD: Feminists are all over.
MONTGOMERY: They are directed -- no, no, it's directed towards her saying
she cannot be a good mother when she's working full time.
WILLIAMS: Well, I think that's absurd. Of course, I think -- I think from
all indications, she's a great mother. But I just don't think it's really
relevant to what we're doing here which is we're confirming someone to a
lifetime position on the court.
PERINO: Could I play one more piece of sound.
WILLIAMS: This woman says, no one's above the law, Kennedy. No one's above
the law. So, they say, if you're the member of -- the Democratic member of
the committee, you say, well, OK, what about President Trump pardoning
himself? And then she says, Well, I can't speak to that, because it hasn't
been litigated.
You think to yourself, wait a second, didn't you just say, no one's above
the law? That includes the president in our democracy. And yet she plays a
game in which she said, oh, I can't speak to that. I mean, at that point,
you get frustrated.
PERINO: Yes, I don't think that's the same. I want to play one additional
piece of sound. This is (INAUDIBLE) number two, because I do think that
especially if you're a young woman, any girls watching here tonight. Here
is her talking about herself, how she sees herself. Take a listen.
(BEGIN VIDEO CLIP)
BARRETT: I hope that you aren't suggesting that I don't have my own mind or
that I couldn't think independently or that I would just decide like, let
me see what Justice Scalia has said about this in the past, because I
assure you, I have my own mind.
But everything that he said is not necessarily what I would agree with or
what I would do if I were Justice Barrett. That was Justice Scalia. So, I
share his philosophy, but I've never said that I would always reach the
same outcome as he did.
(END VIDEO CLIP)
PERINO: Jesse, last word.
WATTERS: Well, it's just quite insulting for several Democrat senators to
constantly saying, oh, well, you must agree with Scalia. And like, she's
not an independent thinker and independent woman. I think she handled it
brilliantly. And to Juan's point, she's being put here because Trump won
the election.
And she's not there to knock down Democratic legislation. She's there to
interpret the law as written in the Constitution. And that's what the
Democrats are afraid of, because this was mentioned. They analyzed how she
ruled in Fourth Amendment issues, illegal search and seizure. And she came
down equally on the side of the defendant, on the side of the government.
She didn't try to broaden the scope of the Fourth Amendment. She didn't try
to narrow it. And that's what a (INAUDIBLE) do. They interpret the law as
written. And I think that should give everybody a really strong feeling
about how she'll rule going forward.
PERINO: All right, good talk, everybody. Coming up, Facebook and Twitter,
they're blocking people from sharing a new report claiming Joe Biden met
with a top executive at the Ukrainian gas company his son Hunter worked at.
(COMMERCIAL BREAK)
MONTGOMERY: Welcome back. A major controversy over a new report about
alleged e-mails involving Hunter Biden. Facebook and Twitter are blocking
users from sharing a New York Post story detailing the messages that a
Senate committee is now investigating. Senators are set to look into the e-
mails that allegedly show Hunter Biden introduced his then vice president
father to a top executive at Ukrainian gas company Burisma.
The incident apparently happened in 2015, less than a year before then Vice
President Biden pressured government officials in Ukraine into firing a
prosecutor who was investigating the company. A Biden campaign spokesman
hitting back at the report saying Joe Biden engaged in no wrongdoing,
adding "we have reviewed Joe Biden's official schedules from the time and
no meeting as alleged by the New York Post ever took place.
Jesse, that's because it wasn't in his official calendar, but does every
meeting informal and otherwise that happens between a politician and
various emissaries and randoms from overseas, do those all end up in the
calendar?
WATTERS: Yes, if I was the vice president, I would not put in my official
calendar, meet with my son's corrupt natural gas Ukrainian associate. I
would not put that in there. But here -- his central defense was that I
didn't know what my son was doing. That's obviously not true. And his son
was selling access to his father. He wasn't a registered lobbyist. People
have been prosecuted for that in, you know, around Trump's world.
So, the most corrupt company in Ukraine was paying the Biden family and
Biden was helping the most corrupt company in Ukraine avoid prosecution.
Biden says, listen, this was U.S. policy. So yes, it was U.S. policy to
protect the most corrupt company in Ukraine because this company was
handing out massive no bid natural gas contracts to well-connected European
and American interests.
They were bribing politicians, and they were putting all of these people on
their board like a patronage mill. And this guy was a pro-Russian oligarch.
So, all Biden did was keep the gravy train running. I don't know if that's
legal, but it's swampy. And when Trump zeroed in on it, he got impeached
for it. And now Facebook doesn't want you to share the story. Again, it's a
rigged system.
And this is, in my opinion, helping the president because again, he is
being cornered by very powerful interests, whether it's big tech, whether
it's the media, whether it's big pharma, and he looks like he's fighting
for the little guy, because everyone in the world comes down against this
president. And again, I think it helps him.
MONTGOMERY: At least he's fighting now because of Regeneron. So, let's talk
about this, Juan, because there are some aspects of this that are
problematic that need to be vetted by journalists. They need to ask these
questions. How did this laptop end up in this shop? How did Steve Bannon
and Rudy Giuliani get hold of it? Supposedly, the store owner gave it to
the FBI. You were -- you were making some faces during Jesse soliloquy, so
where do you take issue with this story?
WILLIAMS: Boy, I'm glad you asked that question because I tell you, you
know what, I've had personal experience with this as someone who's, you
know, personal cell phone got hacked by the WikiLeaks people last time. And
so, I'm very sensitive to what gets reported how the press jumps on
stories, maybe before they're ready, you know.
And in this case, I just think, you know what, it's just so important that
I think we all understand very clearly that, you know, one, no meeting ever
took place, not only according to Joe Biden's schedule, but according to
Joe Biden, no meeting. OK. Number two, it seems to me this story has all
the hallmarks, Kennedy, of what I would say is disinformation, political
hit job put forward.
MONTGOMERY: An October surprise, if you will?
WILLIAMS: I guess they're trying to.
WATTERS: It's similar to the dossier, right, Juan?
WILLIAMS: Well, it seems to me it's much more similar to what we saw in the
2016 campaign right after the Hollywood Access tape.
MONTGOMERY: So, Juan, what you're saying is this is fake news.
WILLIAMS: Well, I don't know. I don't know. I can't say that with any --
it's not as if I know that. But I will say this, to pick up on your point,
it strains credulity that somehow Rudy Giuliani or Rudy Giuliani's lawyer
is in touch with a guy in a computer store in Wilmington who gets him the
computer.
It just seems to me like, you know what, it's just beyond belief. And it's
so it seems a little bit like somebody is out to smear somebody. And even
if all that was said from what we know was true, Joe Biden did nothing
wrong. This is like another nothing -- like, the unmasking story that was
supposed to we were all waiting for those October surprise, Bill Barr comes
out yesterday and says there's nothing to the unmasking story.
MONTGOMERY: OK, so Greg, Joe Biden has denied knowing anything about his
son's business dealings. And is there any part of this that will make
purchase with voters? Is there any part of the story that will harm Joe
Biden if it does, in fact, turn out that he did meet with one of those
Burisma executive?
GUTFELD: Well, I think when Joe Biden says he denies knowing anything,
people can believe that. But I do think that one of the bigger pieces to
this and that Trump should probably capitalize on is the actions of
Facebook and Twitter.
I agree with Juan that there are parts of the story that strain belief, but
that never stopped Twitter or Facebook in dozens of stories about the
dossier or the collusion or Jussie Smollett or sorted hoaxes that we've had
to go through in videos that we were told this and it turned out that.
Let's not forget Covington, right? Covington was amplified by the media and
they paid for it, right? So, I think that like the fact that Facebook and
Twitter are exercising some sort of judgment because they're skeptical of
this, that reveals a specific bias. And I think Trump should perhaps take a
close look at that and there -- and there might be something there that
people can agree upon. I won't say what it is.
I think that Hunter -- to Juan, I don't like it when people go into
people's stuff for reasons I won't get into.
WILLIAMS: But we'll agree.
GUTFELD: But yes, we'll agree. But Hunter is making it hard for responsible
libertines, right. I mean, he's giving partiers -- he's giving partiers a
bad name. And he's that typical spoiled brat offspring of a powerful person
who thinks he can get away with everything.
MONTGOMERY: I'll tell you who he is. He's Jeff Spicoli. His dad is a T.V.
repairman. He has the ultimate set of tools. He can fix it. But back to
Twitter and Facebook, are they -- are they running interference or is this
the responsible duty of big social media.
PERINO: I think in some ways are trying to fight the last war with new
policies that haven't been tested yet in the middle of an election with a
highly explosive story that might not check out but they're saying that
we're -- at least on Facebook's side of saying, this is going to go through
a third-party fact-checker. And in the meantime, I'm going to suppress it.
Twitter just said, we're not going to do it at all. And so, I do think that
if you believe that there is a faction of the Republican Party that wants
to go after these tech companies, you just fed them. I mean, basically you
just gave them their Wheaties
GUTFELD: Their Wheaties. Nice.
MONTGOMERY: And now, everyone is going to be on the cover like a gymnast.
"ONE MORE THING" is up next. Stay with us.
(COMMERCIAL BREAK)
PERINO: Hey, it's time for "ONE MORE THING." Greg?
GUTFELD: Now let's look at this.
(BEGIN VIDEO CLIP)
GUTFELD: Animals are great. Animals are great. Animals are great.
(END VIDEO CLIP)
GUTFELD: Of course, they are. It's true. You know what? You look at this,
you can understand how good this feels. There's nothing better than a good
scratch, right? Right there. That's Jeff. He's a bull in New Zealand and he
just likes to get his head scratched every now and then.
PERINO: This is your "ONE MORE THING?"
GUTFELD: Yes. Do you guys don't like Jeff the Bull? What is your problem,
Dana? Why don't you like Jeff the Bull?
PERINO: I don't know. I mean, I just thought there would be a little more
action.
GUTFELD: You're disgusting. I don't know what you mean by action.
PERINO: Well --
GUTFELD: You know what, we should have a talk with H.R. after the show.
PERINO: And we'll call him after this. Juan.
WILLIAMS: OK. So, life is full of surprises. And that's especially true
when the doorbell rings in the middle of the night. So, take a look at this
Monday night footage from a doorbell camera in California.
(BEGIN VIDEO CLIP)
UNIDENTIFIED MALE: Paul, it's Bob Wilson. You won the Nobel -- you've won a
Nobel Prize.
(END VIDEO CLIP)
WILLIAMS: Yes. That really happened, folks. Stanford professor Robert
Wilson rang Paul Milgrom's doorbell at 2:00 a.m. to tell him he won the
Nobel Prize for economics. Wilson and Milgrom are both Stanford professors.
They won the prize as a team. They live across the street from each other.
The prestigious award comes with a $1 million cash prize and a gold medal.
Now, you won't be surprised to learn that Milgram's phone was unplugged
because he was getting too many campaign phone calls with the election just
days away. So, congratulations to them. By the way, the USA is winning a
lot of Nobel Prizes. Go, USA.
MONTGOMERY: As is the Pact 12.
PERINO: He's a Stanford guy.
MONTGOMERY: An astrophysicist as well.
PERINO: I know the Stanford guys are happy. All right, I'm going to tell
you about this guy. This Utah man got a little more than he bargained for.
He thought he was going out on a normal hike, but things got a little bit
more intense. Watch this.
(BEGIN VIDEO CLIP)
UNIDENTIFIED MALE: Go away. No. No.
(END VIDEO CLIP)
PERINO: So, that is Kyle Burgess. He was in the middle of a two-mile run on
this lake canyon trail near Provo on Saturday evening and he cross paths
with some wild kittens. So, he started filming them on his phone and then
the mama, she was not happy. He realized they were mountain lion cubs. And
a moment later, it came out, protective mother emerged, and she was not
having it. Thankfully he --
GUTFELD: Look at the foliage.
PERINO: Yes, the foliage is great. He got a big rock. He threw it towards
her. She ran away. Everybody's fine. But I mean, that was --
GUTFELD: That wasn't a bull.
WILLIAMS: I heard it was like six minutes.
PERINO: Yes, six minutes. He was stopped by that. All right, Jesse.
WATTERS: Speaking of foliage --
PERINO: Foliage.
WATTERS: That's not how you pronounce that. Hey, don't do that. Hey, don't
do this. All right, so it's leaf season. Greg knows. He lives Upstate.
PERINO: Oh, no, you didn't do this.
WATTERS: What do you do with the pile of leaves after you've raked them up?
Hey, don't do this.
PERINO: Jesse, I can't believe you're doing this story.
WILLIAMS: Oh, my goodness.
WATTERS: You got to rake them and bag them. You don't want to light them on
fire like that.
PERINO: Yes. Kids, don't try this at home.
WILLIAMS: Wait a second. Aren't you -- aren't you having a boy -- you're
having a boy child? I think that was Jesse Jr. right there.
WATTERS: We're going to -- we're going to hire some landscapers.
PERINO: All right, Kennedy.
MONTGOMERY: Well, we all have been waiting for the UPS man during the
lockdown, especially kids who were home from school.
GUTFELD: Me too.
MONTGOMERY: See, you get to know that person pretty well. Check out this
UPS driver in Boston who got a big surprise from a family he visits almost
every day.
(BEGIN VIDEO CLIP)
UNIDENTIFIED MALE: Oh, my god. Oh, my god. That is so awesome.
(END VIDEO CLIP)
MONTGOMERY: The entire family, seven kids, and a bulldog dressed up in UPS
garb, so they can show their appreciation to their favorite driver. They
are down with brown.
PERINO: Indeed, they are. All right, great show everybody. That's it for
us. "SPECIAL REPORT" is up next.
Hi, Bret.
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