How the legal world is reacting to Ruth Bader Ginsburg’s death

This is a rush transcript from “The Ingraham Angle" September 18, 2020. This copy may not be in its final form and may be updated.

LAURA INGRAHAM, FOX NEWS HOST: I'm Laura Ingraham. This is "The Ingraham Angle" from Washington tonight.

After a long battle with cancer Associate Justice Ruth Bader Ginsburg, the leader of the liberal wing of the Supreme Court, died at home tonight at the age of 87. She was surrounded by her family.

Justice Ginsburg was a legal pioneer, a feminist, a woman's rights icon, and only the second woman to have been nominated to the court. A graduate of Cornell University, Columbia Law School and a proud Brooklyn native, she possessed a sharp wit, a keen intellect and a penchant for speaking her mind, even on issues that most Supreme Court justices steered clear from.

For her votes and hard hitting a opinions on cases ranging from immigration to abortion, she was a hero to millions of Americans. And not only was shean enormously popular figure in the legal world, but she ended up becoming a popular figure in the popular culture as well. There were children's books, a feature film, and documentaries about her story career. She was indeed a larger than life figure.

And given how polarized things are these days in Washington, it's part - it's probably hard for a lot of you to fathom that one of her best friends on the court was the late Justice Scalia, a fierce believer in the judicial philosophy of originalism.

Now, Ginsburg believed in the constitution more of as a living document, but their friendship endured.

(BEGIN VIDEO CLIP)

RUTH GINSBURG, ASSOCIATE JUSTICE OF THE SUPREME COURT OF THE UNITED STATES:

I was listening to him and disagreeing with a good part of what he said, but the way he said it in an absolutely captivating way

UNIDENTIFIED MALE: I think we should leave it at that. Great point.

ANTONIN SCALIA, FORMER ASSOCIATE JUSTICE OF THE SUPREME COURT: We agree on a whole lot of stuff. We do. Ruth is really bad only on the knee jerks.

(END VIDEO CLIP)

INGRAHAM: In fact, it was way back in 1987 that I first met Ruth Bader Ginsburg and her late husband Marty, who was just a wonderful person, at their Watergate apartment. And it was with the Scalia's with whom they spent many New Year's Eves long time ago. But tonight, we have a family in mourning and our prayers are with them.

Now, throughout this hour, we'll have full analysis of her career on thebench, the Senate battle ahead for her replacement, and the political implications of all of this in an election year that none of us thought could get any more dramatic.

Tonight, the Left and most in the media, they're furious, though, that the stakes are so high with the passing of Justice Ginsburg. They're seething, many of them, at the prospect that Donald Trump, at the end of his first term in office, could have put three justices on the court. But I have to say we warned them, and we warned them not to give so much power to unelected judges on any court.

Now, Robert Bork warned them about this over 30 years ago. So, in many ways, this is a crisis of the Left's own creation. Now, the court has outsized influence and power that, in many cases, should be properly left to the people through their duly elected representatives.

So, tonight, examining the political stakes with the Senate, the court and the presidency hanging in the balance, we'll be joined by Charlie Hurt, Scott Rasmussen and Raymond Arroyo. Also with us is Chris Scalia, the son of the late Justice Antonin Scalia.

But first, here to walk through Justice Ginsburg's legacy is Helgi Walker, attorney and former Supreme Court clerk; also is Sol Wisenberg, former deputy independent counsel; Harmeet Dhillon, civil rights attorney and founder of the Center for American Liberty; also, Carrie Severino, president of the Judicial Crisis Network, also former Clerk John Eastman, Claremont institution Senior Fellow, also another former clerk. Helgi, what do you see as the most defining part of Justice Ginsburg's legacy?

HELGI WALKER, FORMER SUPREME COURT CLERK: It has to be her role as a leader for women in the law and in America as full citizens, doesn't it Laura? There's really no way no way around that. She was a trailblazer for women. Second woman ever to sit on the United States Supreme Court and she changed he world for all of us, men and women alike.

INGRAHAM: And Carrie, obviously, we're going to get into the pitch battles - so, that will be ahead. But before that's done, I mean - yes, like the courts become extremely contentious place to serve on, to work at. As you dissect opinions, you've written books about the last confirmation, a battle with Justice Kavanaugh.

But she really kind of transcended a lot of the normal life in Washington in many ways. And like her buddy, Justice Scalia, she was a hero. As Jeffrey Toobin said tonight, she was a hero to Liberal Democrats.

CARRIE SEVERINO, JUDICIAL CRISIS NETWORK PRESIDENT: Yes. And, you know, she really set a standard that we need nowadays. The ability to reach across the aisle to justice like Justice Scalia, with whom she did not agree on very much in terms of their approach to the law, but with whom she forged a very deep and meaningful friendship.

And you talk about some of these pitch battles, even with some of her newer colleagues like Justice Gorsuch and justice Kavanaugh, I was very impressed that she came to their defense when they had been attacked during Kavanaugh's own confirmation process.

She was out there saying this is not right, I prefer the process the way it was when I was confirmed. She was almost unanimously confirmed despite her ideological leanings, and the fact that that was well known at the time. So I think that ability to reach across the aisle to be collegial with those with whom we disagree is something we all can take a lesson from.

INGRAHAM: Sol, we had tributes pouring in tonight from all over the legalworld. Bill Barr put out an incredible  statement, which I'm going to tweet out in a moment, which - look, addressed her incredible academic accomplishments, her legal accomplishments, her fierce spirit.

I suffered one bout of cancer. She suffered for bouts of cancer and kept working through all of it. So all of that combined, I think, makes the - makes the legacy of this woman, regardless of what you think about any of her decisions, which we know we can get into in this conversation as well.

Thoughts tonight Sol.

SOL WISENBERG, FORMER DEPUTY INDEPENDENT COUNSEL: She was a lawyer's lawyer, Laura, and a lawyer's judge. She cared very deeply about process, about following the rules.

Even this last term, you saw that in the Sineneng-Smith case, the case where she basically scolded, wrote a unanimous opinion, scolding the Ninth Circuit for deciding an issue that none of the parties wanted decided or asked to be decided.

Yes, she was constitutionally left of center, but she was very consistent and very and very principled, really one of the great liberal justices. And very importantly, very similar to the role of Thurgood Marshall with African-American rights under the Constitution, she was a trailblazer and had a great impact as a litigator, as you know, as well as a Supreme Court justice. That's very rare in Supreme Court history.

INGRAHAM: John Eastman, from Bill Barr tonight, "She was a brilliant andsuccessful litigator and admired Court of Appeals judge and a profoundly influential supreme Court Justice. For all her achievements and those roles, she'll be perhaps most remembered for inspiring women in the legal profession and beyond. She and I didn't agree on every issue, but her legal ability, personal integrity and determination were beyond doubt. She leaves a towering legacy and all who seek justice, mourn her loss." Wow.

JOHN EASTMAN, CONSTITUTIONAL SCHOLAR: Yes, no, a terrific statement. One can only imagine her reunited with her husband, Marty, and, and Justice Scalia, and maybe going to even opera up in heaven tonight.

But, look, the world of employment law and the role of women in thworkplace was changed because of Ruth Ginsburg's legacy. We don't need today to get into her more ideological decisions. That's an extremely important legacy. And we all ought to acknowledge and thank her for that.

INGRAHAM: When we talk about what's new next for the court. Helgi, it's something that confronts everyone in this election year. It seems like yesterday when we were talking to you and Carrie and John and Sol, about the Brett Kavanaugh nomination and all the ups and downs with that one. Gaming this out for us, Helgi, how big is this next nomination to the court, setting aside when it would happen and when the hearings would happen, but just how big is it in the makeup of the court?

WALKER: It's pretty important, Laura. But I think it's important not for politics, not for Republican or Democrat reasons. It's important that we continue in the tradition of Justice Ginsburg, highly qualified people who are principled people, perhaps of a different jurisprudence.

I would expect a different jurisprudence from President Trump. But the President has had a stellar record, Laura, as you know of nominating to this court highly qualified people of integrity and I think we can count on the president continuing on that track.

INGRAHAM: Carrie, Mitch McConnell tonight said that he would expect a voteon the next nominate before the end of the year, I believe he said. Howdoes this play out? Let's assume first that Donald Trump wins on November 3rd. I know a lot of people watching think, that's not. Well, let's assume that he wins on November 3rd, obviously, the process would be a lot easier.

But let's say he doesn't win on November 3rd, and they haven't rushed through a confirmation before the election, which to me seems unlikely.

SEVERINO: Yes. Leader McConnell has been very clear in his statement. And he points to the history of - when you have a Senate and the White House being held by the same party, typically in an election year vacancy, you do have a confirmation. That's different than what we saw in 2016, when they were an opposite parties. There, the vast majority the time, you don't have a confirmation. You have to go back to the 19th Century to find one that was confirmed under those circumstances.

So I think Leader McConnell has been clear. I think the President, obviously, has thought through. He's got a great list that he can draw from here. And, I think - well, the President will know the specific timing. I'll let him decide on that. But I think it's very clear we're going to have a vote on this vacancy before the end of the year.

INGRAHAM: And President Trump, as Carrie just noted, recently added another 20 names - we just were talking about this last week on "The Angle", of potential Supreme Court nominees. Joe Biden has not released a list.

And the list includes a number of women, Amy Coney Barrett, she's a judge on the Seventh Circuit Court of Appeals and clerked for Justice Scalia. Kate Todd, she's deputy counsel to the president and clerked for Justice Thomas. She worked on the on the impeachment battle too.

Barbara Lagoa. She's a judge On the Eleventh Circuit Court of Appeals. She also served on the Supreme Court of Florida. And Sarah Pitlyk is a judge on the District Court for the Eastern District of Missouri, and former clerk to then Judge Brett Kavanaugh. Wow.

Sol, any of them would be pretty strong candidates in my mind. But is it a done deal Sol that the replacement for this judicial icon would have to be a woman?

WISENBERG: Oh, I think that it's highly, highly likely. Yes. I mean, I don't have any inside information. But I think for all practical purposes, it would be a done deal. Laura. I think that--

INGRAHAM: Amy Coney was on the list early on, obviously. She was on theoriginal list Donald Trump, the candidate, released. And she's, obviously, had a lot of decisions now under her belt on the Seventh Circuit, Sol, that comes with pluses and minuses?

WISENBERG: Yes, she's - right, the more of a record you have, the more of a target that you are, as you know, and that's why some people unfortunately play it safe, which I think is a mistake.

There's no question that, that President Trump is going to, I think, nominate somebody who is highly qualified in the technical legal sense. The issue is going to be, of course, the ideological battle.

And anything can happen, assuming that the nomination is put forward after the election. You're not only - you're talking about - and I'm, I'm hearing this from the liberal side tonight. You're talking about - and I hate to be talking about this on the on the day that Justice Ginsburg passed away. But you only need a few defections on the Republican side for it not to go through. And who knows what a lame duck senator might do in thinking about his or her legacy.

But another thing that people don't think or thinking about when they talk about the court inevitably shifting rightward if President Trump gets the next nominee is. People leaving the court that's have a way of sometimes changing slightly the philosophy of people who were on the court, and they tend to shift a little bit. I mean, we've seen one or two opinions from justice Gorsuch, this past term that surprised people. So who knows what might happen in the next configuration.

INGRAHAM: Well, Sol, I'll say it usually shifts to the Left when that happens.

WISENBERG: Yes.

INGRAHAM: I mean, I don't think you can name too many Democrat nominees to the court, who've evolved to be more originalist in their judicial philosophy. I think it usually goes the other way around.

WISENBERG: That's for sure.

INGRAHAM: And you point out the Gorsuch opinion. Now, everybody, this is Joe Biden's criteria for a Supreme Court pick.

(BEGIN VIDEO CLIP)

JOE BIDEN (D), PRESIDENTIAL NOMINEE: We're putting together a list of a group of African-American women who are qualified and have the experience to be in the court. I am not going to release that until we go further down the line and vetting them as well.

(END VIDEO CLIP)

INGRAHAM: Well, back in August, Bloomberg reported that, "to name a Black woman to the Supreme Court to legal insiders, Biden's options narrowed down to very quickly to two justice names, Justice Leondra Kruger of the California Supreme Court and Judge Ketanji Brown Jackson of the Federal District Court in Washington, DC. Harmeet, was it smart for Biden to box himself in like that?

HARMEET DHILLON, CIVIL RIGHTS ATTORNEY: Well, Laura, it was no smarter for him to box himself in there than it was for him to box himself into appointing an African-American woman as his running mate, which really limited his choices to - I think, the fairly on appealing Kamala Harris.

Justice Kruger, certainly, is well known. She has a good track record in California as a jurist. So there's a lot to look at and talk about there. I'm not very familiar with the other judge. But by limiting himself that way, I think he is really doing a disservice to jurisprudence, to the court, to his legacy if he were to become the president.

And I don't think that's really how we should be selecting judges in today's day and age. Because it makes a lot of assumptions about people and their worldview just based on their innate characteristics, which I think is somewhat of an outdated concept today.

INGRAHAM: Yes, but it was the first time in my memory, and John Eastman, you can correct me if I'm wrong, that a presidential candidate released a lengthy list or any list of potential nominees to the court.

But that's because the Trump campaign back in 2016 understood that for conservatives - especially Christian conservatives, the court had become a very important lifeline to writing what they believed were past judicial wrongs. So he put that list out and a lot of people believe, John Eastman, that that really helped Donald Trump in those final weeks.

EASTMAN: It's probably the thing that carried the election for him. Look, there were a lot of people that were distrustful of Trump as making of a true conversion to conservatism. And he put that list out and made a solemn pledge that he would pick somebody from that list. And the list was just rock solid.

And what what's happened is, our Supreme Court has taken on the role as super legislator. We're not looking for judges who are going to legislate in the other direction. We're looking for judges who understand the role of the court, which is to interpret the law as it's given, rather than to make the law as they would like it to be. And, my one disagreement with Justice Ginsburg over time is that she unfortunately did that on occasion.

INGRAHAM: OK, panel, stay right there. We're a lot of Skype people. We're like a trip - we're like The Brady Bunch boxes tonight. Guys stay right there.

And as we just mentioned, if President Trump does nominate someone to the court, Senate Majority Leader Mitch McConnell has promised he will get avote to the floor. But how likely is that to happen before the election? And would McConnell have the votes to get it done? Now, let's go live to Fox News Congressional Correspondent Chad Pergram with some answers tonight, Chad.

CHAD PERGRAM, FOX NEWS CONGRESSIONAL CORRESPONDENT: Hey there, Laura. Well, here's the average time that you have when someone is nominated for the Supreme Court before they get a hearing. It's about 40 to 45 days. And in terms of nomination to confirmation, the average is about 67 to 71 days.

So even to get a confirmation hearing in just before the election, if they're going to do the vetting process - again, this is a lifetime appointment - they're really on the cusp of their. It's hard to see how they could possibly ram this through before an election. Brett Kavanaugh, the most recent justice put on the Supreme Court, 57 days before he had a hearing and 89 days before he was confirmed.

Now, let's look at the parliamentary math in terms of trying to confirm this justice. The breakdown in the Senate right now is 53 Republicans 47 Democrats. So, again, they could only lose two now. Lisa Murkowski, Republican Senator from Alaska, she has indicated that she does not think that they should try to fill this seat until after Inauguration Day. So conceivably, you're down to 52.

Then let's just say this vote were to happen before the election, what happens with Susan Collins from Maine, Republican Senator, who has a very competitive race? What happens with Cory Gardner, Republican from Colorado; Martha McSally, Republican from Arizona,, who's in a competitive race? She has indicated that she thinks that they should forge ahead and go ahead and try to fill this seat right away.

Now, again, if you drop down to say, 50-50, you could have Vice President Mike Pence break a tie. We've never had a confirmation for a Supreme Court justice broken on a tie with the vice president casting the deciding vote. In fact, there was never a deciding vote for any executive branch nomination - the tie broken by the vice president until Betsy DeVos in\ early 2017.

So this is going to be pretty interesting in terms of how vote stack up and the when, how fast can they get a nominee? How fast can they do a confirmation hearing and actually vet the person. Sometimes, remember, they run into issues with these.

I mean, let's look at what happened with Clarence Thomas, even though he was eventually confirmed. Harriet Miers, who was one of President George W. Bush's nominees, her nomination was withdrawn.

You certainly had this with Robert Bork back in the 1980s. So just because you have a nominee doesn't mean there's something that - that that means that they're guaranteed a slot on the Supreme Court, especially to do it in such a tight turning radius. So the chances of this happening actually before the election, that's really up in the air, Laura.

INGRAHAM: Chad, thanks so much tonight.

And joining me now is currently Charlie Hurt, Washington Times opinion editor, Fox News Contributor. Scott Rasmussen, pollster and Ballotpedia editor-in-chief, and Raymond Arroyo Fox News Contributor.

Scott, your history in polling is among the top in the field. Given what we know that voters think about this court, the importance of the court in the last election and in the most recent polling on this, Morning Consult, I think did the last one. Could this change the course of this election?

SCOTT RASMUSSEN, EDITOR AT LARGE, BALLOTPEDIA: Well, look, in the last election, the decision about the Supreme Court, President Trump's comments, and putting out a list is the reason he's in the White House. 87 percent of evangelical voters cast their ballots for the president, even though many had doubts about his own character.

So this was an important issue. And I think this time around, it changes the equation fundamentally. The question is no longer just about Donald Trump. It is about the future of the Supreme Court. And that is something that is very significant. This is a debate the American people are going to have about something that will last a lot longer than the next presidential term.

INGRAHAM: Charlie, one of your clothes pals David Gergen on the other network tonight over at CNN, he had a prediction about what the passing of Justice Ginsburg would mean for the election, and I think we have it. Let's watch.

(BEGIN VIDEO CLIP)

DAVID GERGEN, CNN SENIOR POLITICAL ANALYST: It makes it more likely that now - I think it makes more likely the Joe Biden will win the election. It makes it even more likely that the Democrats will take over the Senate. I think this plays into Biden's hands, simply because the unfairness is just so - it's reeks of hypocrisy.

(END VIDEO CLIP)

INGRAHAM: Charlie given, David Gergen's recent track record in political prognostication, does that bother you?

CHARLIE HURT, FOX NEWS CONTRIBUTOR: Yes, I don't know what history David Gergen is looking at to make such a prediction. It's kind of ridiculous. In fact, I don't think that you could go through and find a single election,\ in certainly in modern times that has gone the way that a Democrat has won on a fight over the federal judiciary. Whereas, you can find plenty of examples where Republicans win based on fights over the federal judiciary.

Obviously, as Scott just pointed out, the best example is President Trump in 2016. It's something that very, very much activates conservative voters, because they feel like the courts have gone awry. And the simple argument that true conservatives like President Trump make, judicial conservativesmake, about how the judges are to interpret the constitution as it is written, not as they wish it to be written. It's a pretty simple argument.

I would also argue that in in 2004, President Bush won reelection based on the fight. He understood what an important issue that was at that point. He had not had a single nomination to the Supreme Court. He - but he made that argument that he could get one, possibly two. He wound up getting two.

One, he put John Roberts on there. And then, of course, put his second choice on there.

INGRAHAM: Alito.

HURT: And - Samuel Alito, and he - and I think that made the difference in that election.

INGRAHAM: Raymond this year we've had - of course, we've had the pandemic. Well, first of all, we had impeachment. We had the impeachment trial that Donald Trump ultimately won. He was acquitted. Then we had the coronavirus pandemic, all that entailed with the shutdowns, the economic - the horrible fallout, the loss of human life, Joe Biden the nominee for the Democrats. We have these weird conventions. A pitch battles in the streets, riots. Now we have a Supreme Court nomination fight potentially before the end of the year, at the very least. How does this rate for political, legal, cultural drama?

RAYMOND ARROYO, FOX NEWS CONTRIBUTOR: Ain't 2020 grand? I mean, I think that's what you're staring back. First of all, our condolences to the Ginsburg family, all those mourning her loss.

You see Joe Biden coming out tonight and he's saying, wait a minute, the American people should vote on the next president who will then offer a nominee for the Senate to vote on. It shouldn't be done before the election. Meanwhile, I think you see Mitch McConnell and his caucus saying, we're going to move forward. We will have a vote as soon as possible, if you read between the lines.

Now, Laura, you asked the question earlier, should a woman replace Ruth Bader Ginsburg? Ruth Bader Ginsburg is not just a Supreme Court justice. She is a cultural mythic icon. I mean, in my little girl's school, there's a picture of RBG up on the wall. They don't know who Sandra Day O'Connor is, but they know who RBG is. So she's taken on a larger than life place in the culture. So you have to replace her I think with another woman, a woman who can make her own mark on the Supreme Court.

And the other thing, I think both Charlie and Mr. Rasmussen touched on this. Conservatives right now, evangelicalism and Catholics, you see a war to peel off some of Donald Trump's support. This will focus them in a new way on the importance of the Supreme Court, how much sway it has over our life every day, and the importance of electing a president who will nominate someone that reflects the value of the people who put Donald Trump in office. This changes the math as Scott said minute ago.

INGRAHAM: Yes. A well-known evangelical Christian whose name will not be used messaged me to tonight and said, "If you call yourself pro-life, and you don't vote for Republican Senator and Donald Trump in November than you're a fraud." I mean, that's what he said to me. I'm like, OK, I'm not sure we're going to go there tonight.

But his point is, it's all on the line now, Scott. And, again, you've been doing polling and been in the polling business for decades. And the polls in 2016 were badly off in in most cases. What does this do to the next\ round of polls that we see, given the importance of the court to conservatives, to Christian conservatives, and the liberals who are worried that they're going to lose the Roe v. Wade?

RASMUSSEN: Laura, when he talks about the next round of polls, there's not going to be an instant reaction, because the type of thing that we're going to see an issue like this affects turnout, it affects who's going to show up and vote. And that's the thing that we're already having a very difficult time to measure.

None of us have ever polled during a pandemic before. The last time there was anything like this was 102 years ago. I was just getting started in the polling industry back then. So none of us really know how the likely voter bottles are going to turn out.

And so I think when you talk about this, it's really not about the short term, the next wave of polls, it's about the conversation. And, look, I hear all this talk that Republicans are ready to go and vote right away. I think that's a big mistake.

I think the President should come out and say, I want the American people to decide this. I'm going to nominate someone after I'm reelected. Here's who I'm thinking of nominating. And by the way, I want to specifically hear from Joe Biden, who he's going to nominate.

And the reason I think he should do that is that puts the focus on the choice for the court, not on this side argument of whether or not the confirmation battle should go ahead right now.

INGRAHAM: Yes, and the timing of it. And isn't it also the case, Charlie, that right now, the last thing the President wants is for there to be some GOP internal fight where you have Romney versus, McConnell or McConnell arguing behind the scenes with Murkowski or the president tweeting about - and you have Cory Booker - I mean, Cory from Colorado--

RASMUSSEN: Cory Gardner.

INGRAHAM: Gardner, excuse me. That, you know, you don't want that kind of fight right before the election. They have to be unified, if only to say, we'll, put this off until after the vote. Charlie?

HURT: But the other side of that is, President Trump is one of those rare politicians that we've ever seen, who is always willing to spend the political capital that he builds. He's not afraid to put something out there and make it a fight.

Obviously, the drawback to that is exactly what you just laid out there. It raises the specter of all sorts of infighting. But let's remember a couple of things. One is, President Trump has already been through this twice. He's got a short list. He knows -- he has people who have been vetted. He knows -- he has a real good hunch who it is that he would like to nominate. And the second thing is, I think that this opening -- obviously I think this has a huge -- will have a huge impact on the presidential election. And I think that ultimately it does help President Trump because it's conservatives who care about the Constitution and care about fidelity to the Constitution. And that's really what's at stake here, and that's what the liberal justices on the Supreme Court have been shredding for decades.

But the other thing is that on the Senate races, it suddenly nationalizes all of these Senate races, and it takes Senate races where maybe Republicans fielded a weak candidate or maybe they don't -- there might be some local issues that don't cut in the favor of Republicans. But suddenly if you're in Arizona and maybe you don't live McSally, but suddenly this is what's at stake, does that mean that you're going to come out and make sure that you vote for McSally? I think that there's a real possibility that this cuts in all of those races like that.

INGRAHAM: And Raymond, we have Lindsey Graham up for reelection, and that race is tighter than he wants it to be. I assume he'll win, but it's tighter than he wants it to be. John Cornyn from Texas, Ben Sasse, of course, Thom Tillis who is in a very tight race in North Carolina, Joni Ernst in Iowa, and Susan Collins in Maine. This is the Judiciary Committee, the Republican Judiciary Committee members, it's on the line for them on November 3rd. So when Donald Trump puts out his nominee, Raymond, next week, which I imagine it will be, when he names his pick -- first of all, it better be a phenomenal pick, and I imagine it will be. Better be unimpeachable.

HURT: Amen.

INGRAHAM: And those senators better be on board with that pick. Raymond?

RAYMOND ARROYO, FOX NEWS CONTRIBUTOR: I think Charlie has it exactly right. This is going to nationalize all those Senate races, but it does something else for Donald Trump. Over these many months, we've been watching Joe Biden and his running mate, COVID-19 snatch the headlines. That running mate is going to be severely blunted when this drama of a Supreme Court pick moves center stage. This is really important, I think, for the reelection bid of the president, so my guess is he will make that appointment quickly and he's do it quickly. And then he'll encourage those senators to come on board. That will be part of their group reelection. We'll see how that plays moving forward.

But this is where those on the right, particularly religious conservatives, this is the center of their universe, that Supreme Court and the social and cultural issues that move them. This is why they voted for Donald Trump, and my suspicion is, is why they'll support those in his party as well in this next cycle.

INGRAHAM: But Scott, I'm also going to remind everybody, remember that image, or that footage, I should say, of that crazed leftist banging on the Supreme Court. Remember, like banging, banging on the Supreme Court after the Kavanaugh -- in the Kavanaugh hearings. It was madness in Washington for those couple weeks. The left, they felt galvanized, they were protesting.

We've been through the summer of love, OK, of riots and protests and looting. I don't know what the fall of love is going to look like, but that's another thing that we haven't figured into this equation, Scott, whether there could be more unrest if this gets pushed faster than maybe the Republican committee would like it to be. But McConnell is a master of all this, Scott. He's a master of procedure, to say something that's been said a couple of times tonight, but he really is. He knows generally where the votes are and how to get them.

SCOTT RASMUSSEN, EDITOR-AT-LARGE, BALLOTPEDIA: Look, Senator McConnell does his job very well. I have no concerns about his capabilities there. But I think it is a strategic mistake to try and push this through and the use the capital in that way. I think that everything that the others have said about this being a defining moment for the election and about this being a reason that can nationalize the election, all very, very good. But what Republicans should want is for their nominees, for their candidates to be saying, yes, we support the president, we support the person he's going to nominate, but we don't want to get dragged into that discussion about why are you pushing this right now, why are you having this argument with Mitt Romney or somebody else.

The focus should be on, there is a clear choice. If Donald Trump is reelected, here is who gets put on the Supreme Court. If Joe Biden is reelected, maybe we know, maybe we don't know who gets put on the Supreme Court. The president should really challenge him to name names. But the focus should be on that choice of a justice, not on the procedural battles. Because of the procedural battles, the Republicans will come out on the short side of the messaging war.

INGRAHAM: That's actually -- I really hadn't thought of it that way, Scott. That's a really interesting point. Just as a matter of the way it's going to be taken in by the public. Trump has the constitutional right to pick someone, nominate someone, and if McConnell can muster up the votes magically, I don't see that the votes are there to do it before the election, certainly, then he's more masterful than I thought. But otherwise, I think put forth a nominee and let the country cogitate on it for a bit and have the vote.

But there also could be a recess appointment option, which we're going to get into in a moment, which hasn't been discussed at all tonight, but that's also an option if the president should lose on November 3rd, which again, I don't think is going to happen. Panel, stay right there.

As I mentioned earlier, what surprises a lot of people to hear was that one of Justice Ginsburg's best friend was also one of her biggest intellectual opponents on the Court, the late Justice Antonin Scalia. So after Scalia died four years ago, she wrote this moving tribute to her, quote, best buddy, saying "Toward the end of the opera, Scalia/Ginsburg, tenor Scalia, and soprano Ginsburg sing a duet, saying, we are different, we are one, different in our interpretation of written text, one in our reverence for the Constitution and the institution we serve."

Joining me now is someone who saw this relationship close, Chris Scalia, son of the late Justice Antonin Scalia. Chris, what do you remember about the friendship between your dad and Justice Ginsburg.

CHRIS SCALIA, SON OF LATE JUSTICE ANTONIN SCALIA: Hi, Laura. I just remember just how, as you suggested, how surprising it was to so many people, but just how almost commonplace it was to us. I think we as a family took it for granted because they were just obviously very good friends. They celebrated New Year's Eve together every year. They were friends before they were on the Supreme Court. They were on the D.C. Circuit Court of Appeals together for several years, and even before that they were friends.

So I think we took for granted as a family just how unusual that friendship was, or just how surprising it was to maybe the outside world. But they got along because they just had a lot of things in common, apart from, as you mentioned, their judicial interpretations. They were born in New York around the same time, different boroughs, a few years apart. But I think they were probably familiar types to each other. And they shared a love of opera, as that quotation suggested. They even made cameo appearances in operas together. And they shared a love of wine. And it wasn't just they who were friends. Also their spouses were friends. My mom and Justice Ginsburg were friends, and Marty Ginsburg, Justice Ginsburg's late husband, was also -- they all gathered together often. And Marty was a great cook. And my dad liked to eat. So I think that helped the friendship along, too.

(LAUGHTER)

INGRAHAM: One thing that is refreshing but it really shouldn't be, Chris, and you touched on it, this idea that politics or what you do for a living has to define all of your relationships. And if there's one that I've really hated about the last couple of years, and it's really the last 10 years in Washington, is how that has infected everything, from entertainment industry to sports to -- we can't get away from politics in these pitched ideological balls. And that really shouldn't be everything about a relationship, any relationship, frankly, friendships, family. And it's -- so I guess it's kind of a bygone era it feels like now, but maybe that's just Washington D.C.

SCALIA: Yes, I think a lot of us have friends who disagree with us. And we're friends for other reasons. And maybe things -- maybe that is becoming more and more difficult, but I think one of the reasons people really kind of look up to the friendship that they had was because they -- not just because it seems rare, but because deep down they also know it's possible, and they have approximate friendships.

But I want to share a story that I only heard recently. Judge Jeff Sutton of the Sixth Circuit clerked for my father and was visiting him I think shortly before my father passed away, and it was Justice Ginsburg's birthday. And my dad had two dozen roses to give to Justice Ginsburg. So he said sorry, Jeff, I've got to go. I've got to bring this down to Ruth's office. And Jeff said two dozen roses? Why are you -- he was teasing my dad, saying what is the point giving her two dozen roses? What do you get out of this? When is the last time she sided with you on a five-four decision? And Judge Sutton was kidding around, but my dad took it seriously and said, Jeff, some things are more important than votes. And I think that really captures the significance of their friendship and why it should be so significant to us, too.

INGRAHAM: Chris, it was important to hear from you tonight. Thank you so much for joining us. We really appreciate it.

SCALIA: Thanks for having me, Laura.

INGRAHAM: And we're looking live now outside the Supreme Court where mourners are gathering in Washington. People are laying flowers on the steps of the Supreme Court.

Let's bring back our legal panel, Helgi, Sol, Harmeet, Carrie, and John. Harmeet, let's go back to you on this. I mentioned this earlier. There's another possibility -- again, we're pushing forward into December, November, December now, for a recess appointment option for the president, which again, this is not what he would want. He would want an appointment to be a lifetime appointment to the court. But tell us about that possibility given what may or may not happen on November 3rd.

HARMEET DHILLON, CO-CHAIR, WOMEN FOR TRUMP: Sure. It's definitely a possibility. The Supreme Court itself actually narrowed the definition of when you can do a recess appointment. I think that ruling was about six years ago. And so it has to be when the Senate is in recess for at least three days. So the Senate controls whether that can happen or not. You can probably see some gamesmanship happening around that. So that would be a last resort.

And you have to think about who is the type of justice candidate who would want to be appointed in a recess appointment under the circumstances? If it's sort of a lame duck gesture, maybe some older person who knows that they aren't going to ever be confirmed as a Supreme Court justice might take that sacrificial opportunity. But I think that would be sort of a less desirable option than, of course, trying to go for the full appointment.

And I want to just remind your viewers that some justices have been confirmed within a very short time period, even I think Justice Stevens was 19 days after his nomination, or referral to the Senate. So it is possible, and so I certainly hope that isn't what the focus of the effort is, is towards a recess appointment, because there's all kinds of consequences after that.

INGRAHAM: John Eastman, I want to go back to you. We talked about Mitch McConnell, who has had the most successful record along with current White House Counsel Pat Cipollone, and before him, the previous White House Counsel, of really getting an incredible number of confirmed judges on the courts of appeals, military courts of appeals, tax court, federal district court, and of course two Supreme Court justices. So I have a feeling, astrong feeling, that they have been thinking about this for a while, right, John? It's not like they're just going to come up with a wild guess of a strategy right now.

JOHN EASTMAN, CLAREMONT INSTITUTE SENIOR FELLOW: That's right. And the earlier comment that the this is going to nationalize the Senate elections. It's going to nationalize the 2022 Senate elections. You have got Lisa Murkowski up in 2022. You've got Chuck Grassley up in 2022. And if there is a nomination and McConnell sets hearings, and they start trying to throw up for that, they can call their careers over in 2022. They will not get past their primaries. So this is very significant.

And Mitch McConnell is the master of understanding the dynamics, the political dynamics in the Senate. But Lisa Murkowski and Chuck Grassley and Mitt Romney and others need to understand their own careers are on the line here as well.

INGRAHAM: And I want to also remind our viewers, and this is something that I believe it was Jeffrey Toobin said tonight over on CNN that, look, Ruth Bader Ginsburg, her final state through her granddaughter was that she wanted her replacement to be chosen by the new president. And that obviously means that Donald Trump wouldn't win the presidency, which was a pretty obvious implication of her statement. But Jeffrey Toobin was making a comment about who she was philosophically in addition to all of her legal accomplishments. Let's listen.

(BEGIN VIDEO CLIP)

JEFFREY TOOBIN, CNN CHIEF LEGAL ANALYST: Let's not kid around here. Ruth Bader Ginsburg was a liberal Democrat. She was indiscrete before the election in 2016 displaying her contempt for Donald Trump. And so she wants to be replaced by a Democrat. That is an unusually blunt statement from an unusually blunt justice.

(END VIDEO CLIP)

INGRAHAM: An unusually blunt statement, Carrie Severino, as she is lauded  tonight, rightfully, for all of her legal accomplishments and her cultural and iconic status. She was a liberal Democrat. And she slammed Donald Trump in 2016 in statements that were quite shocking for people who are not accustomed to justices speaking about politics at all. And that is a -- that is something that cannot be ignored even on a night like tonight. Carrie?

CARRIE SEVERINO, JUDICIAL CRISIS NETWORK PRESIDENT: Yes, it clear she did not harbor a great deal of love for the current president. But remember, with respect to the selection of an appointment, she has been on both side of this issue, too, and maybe that shifts a little with the political winds. In 2016, when asked if Garland should be given a vote, she said that's the Senate's job and there's nothing in the Constitution that says the president stops being the president because it's an election year. So she certainly has been in favor of that before.

And as I mentioned earlier, she actually has decried some of the hostility of the current confirmation process and has spoken repeatedly about how wishes it had gone back to a system more like when she was confirmed when there was a little more understanding, even if you had a political valence, if you were very well-qualified, you would be nominated and certainly not smeared like someone like Kavanaugh was. So I think some of those may be colored by her views of the current president, but I think would want to see this confirmation happen quickly.

INGRAHAM: And whether there are more important things than votes on the court when so many issues have been taken by the Supreme Court from abortion to defining gender and so forth, roses are great, but votes to a lot of Americans out there watching tonight, they matter significantly in the balance of power among the three branches of government. Panel, thank you so much for your comments tonight.

And in moments, we'll bring back our political panel for more on the fallout from Justice Ginsburg's passing. Don't go away.

(COMMERCIAL BREAK)

INGRAHAM: Justice Ginsburg, liberal Supreme Court icon, passing away earlier tonight. The political consequences of this will be far-reaching in a dramatic showdown coming.

Let's bring back our political panel, Charles Hurt, and Raymond Arroyo. Raymond, you're hearing tonight that there is something brewing perhaps on a push to try to get a vote before the election, or at least what the liberals are worried about with that possibility.

RAYMOND ARROYO, FOX NEWS CONTRIBUTOR: Well, we're seeing on social media, Laura, and a columnist for "The New York Times," Farhad Manjoo, just tweeted out, "If they try to fill that seat, people gotta take to the streets en masse." He then writes we won't even concede that if they try. So you already see mobilization of people taking to the states if an attempt is made to replace RBG before the election. We'll see what happens next. But my guess is the president at least names someone. That will galvanize the electorate like never before. We saw that with Kavanaugh.

INGRAHAM: Charlie, the court has become politicized. This is what Robert Bork warned about in his 1987 confirmation hearing and before that. And we'll remind everyone what Justice Ginsburg said in 2016. Watch.

(BEGIN VIDEO CLIP)

UNIDENTIFIED MALE: When do you think we'll see a woman as president?

RUTH BADER GINSBURG, SUPREME COURT JUSTICE: When do I think ?

UNIDENTIFIED MALE: Yes.

GINSBURG: We came pretty close.

UNIDENTIFIED MALE: Do you think sexism played a role in that campaign?

GINSBURG: Do I think so?

UNIDENTIFIED MALE: Yes.

GINSBURG: I have no doubt that it did.

(END VIDEO CLIP)

INGRAHAM: She had no doubt that sexism played a role in the 2016 -- that was an unusual comment for a Supreme Court justice, no doubt. That's why Toobin called her unusually blunt. Real quick.

HURT: Yes. She was not afraid to dip her toe, more than just her toe, into politics. But her wish, her reported wish about who gets to pick her replacement, it's more than just unusually blunt. It's constitutionally wrong. We don't have a system where a conclave of justices, unelected justices, pick their replacements. The president of the United States chooses who they want to nominate for the Supreme Court, and the Senate either confirms or doesn't confirm that nomination.

And for no matter what happens in this election, President Trump is president for the next four months, and Republicans control the Senate. President Trump can nominate somebody, and Republicans in the Senate can act on that nomination. And they can do it both between now and the end of the year, or they can do it between now and the election.

INGRAHAM: That is his constitutional prerogative. And Raymond Arroyo, what we've heard all night long is Merrick Garland's name, that Merrick Garland's nomination was not brought up for a vote. Harry Reid pleaded with Mitch McConnell to allow a vote, even if the vote wasn't successful, allow a vote, and that nomination was held up. We had a Democrat in the White House. You can make the hypocrisy claim there as well.

ARROYO: Mitch McConnell explained at that time we had divided government. We were reelected in 2018, he said, to support the president, and that's what we will continue to do. So that's the argument he's making now.

Look, Laura, as has been referenced all evening, Ruth Bader Ginsburg was a liberal icon. She smacked down the abortion restrictions in Louisiana, in Texas, in Nebraska, recently. She was against the Little Sisters of the Poor and Hobby Lobby. All of that will be in the background of this race and remind people of the stakes and how who you elect as president, who you elect as senator, has a direct impact on your life via these justices.

I think this changes the map on this race. We'll see if the president and Mitch McConnell decide to go full bore here, or if they simply name a nominee and hold off, they begin the process but hold off on a vote until after the election. We shall see.

INGRAHAM: Charlie, what Raymond said earlier, and I'm picking this up as well on social tonight, what Raymond said about this -- it's not even an implicit threat of protests and/or violence. It's an explicit threat. That is a disturbing development, Charlie, from this entire summer of loveending in this new fall of dismay, whatever we're going to call it. But to threaten the tranquility or the peace and safety of a city or anywhere in the country because you don't get your political way or constitutional interpretation, we're in a heap of trouble if that's where this is going.

HURT: This is what happens when you shred the Constitution and the Constitution no longer means what it means. You get this kind of reaction from people who get their feelings hurt when they lose politically, and they take to the streets and they do this stuff.

But it should be no surprise after what we've seen the last couple months. But if that's the way they want to play this, they will overplay their hand, and Democrats will lose the White House, the Senate, and the House.

One last thing, though, about Merrick Garland, the important thing that we must never forget is the difference there is that the American people through voting for their senators had put Republicans in charge of the Senate. And because of that, the Republican controlled Senate had the prerogative to vote on Merrick Garland, to not vote on him, to do whatever they wanted to do. They had that prerogative.  They've been put in charge by the American people. Just like right now the American people put President Trump in the White House and they put Republicans in control of the Senate. Now, obviously some of those senators in the Republican conference might bail. That's nothing that anybody can control. But it's a completely different situation than it was where President Obama nominated Merrick Garland.

INGRAHAM: Democrat Senator Mazie Hirono, who was abominable during the impeachment proceeding and the Kavanaugh proceedings, is out there, Raymond, encouraging her GOP friends to defect. Watch.

OK, I guess we don't have the sound bite. She was basically saying earlier today as well --

HURT: We can imagine.

INGRAHAM: -- that she was annoyed that Mitch McConnell was so efficient in getting nominations through. She said I'm hopeful there will be a courageous Lisa Murkowski among Republicans.

ARROYO: Laura, she sees the handwriting on the wall. Remember, in the aftermath of the Kavanaugh battle, the American people responded to theunfairness of the smear job levelled against Kavanaugh.  After that, President Trump and the GOP, their approval ratings went up.

But I want to give you a taste, and this is what you and Charlie were talking about, we talked about early on. Reza Aslan tweeting now, "If they even try to replace RBG, we will burn the entire f-ing thing down." This is the level of discourse that we're seeing on social media, and I think we're going to see it in the streets in the days ahead. This may be just the beginning, and I do think it backfires politically. It's a bad look.

INGRAHAM: I'm going to second and third the emotions that I've heard tonight, or the views, substantive views, emotionally and dramatically presented from Charlie and Raymond. And both of you are indispensable tonight in this analysis, so thank you both very much for being with us, and we'll be talking to you about this for at least a couple months it looks like.

Now, the president has every right to put forward his nominee to replace Justice Ginsburg. Senator McConnell has every right to push for a swift confirmation. But does he have the votes? That's the question. But a lot of people are saying tonight these are the wages of politicizing our judicial branch, should never have been politicized in the first place, should stay in its lane. Interpret the Constitution, don't try to be a super legislature. But we have a big vote coming up. It's all on the line.

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