Kennedy retirement grants Trump second high court pick

This is a rush transcript from "Special Report with Bret Baier," June 27, 2018. This copy may not be in its final form and may be updated.


PRESIDENT DONALD TRUMP: We have obviously numerous people. We have a list of 25 people that I actually had during my election. We have a very excellent list of great talented, highly educated, highly intelligent, hopefully tremendous people. It will be somebody from that list.

LEONARD LEO, TRUMP JUDICIAL NOMINATION ADVISER: If the president nominates someone extraordinary like Neil Gorsuch again, I think it's very hard to stop that kind of a nomination. The American people were widely supportive of Neil Gorsuch, and Justice Gorsuch had bipartisan support in the Senate.


BRET BAIER, ANCHOR: A big day with the announcement that Justice Anthony Kennedy, a swing vote in so many different cases at the U.S. Supreme Court is retiring next month. He sent a letter to President Trump and then met with the president, saying this letter is a respectful and formal notification of my decision effective July 31st of this year to end my regular active status as an associate justice of the Supreme Court. For a member of the legal profession it is the highest of honors to serve on this court. Please permit me by this letter to express my profound gratitude for having had the privilege to seek in each case how to best know, interpret, and defend the Constitution and the laws that must always conform to its mandates and promises.

With that let's bring in our panel: Charles Hurt, opinion editor for The Washington Times; A.B. Stoddard, associate editor at Real Clear Politics, and Jonathan Swan, national politics reporter for Axios. A.B., I know this caught people up on the Hill by surprise. It caught a lot of people by surprise. It had been the whispers in the wind possibilities, but when it happened, there were a lot of people shocked up there.

A.B. STODDARD, REAL CLEAR POLITICS: Yes, good and bad shock. Republicans were exuberant. It was really hard for the Senate majority leader to stifle his smile.

BAIER: That is Senator McConnell in party face mode.

STODDARD: Yes, it was hilarious. And then for Democrats, this is very, very tough day. One Senator today, a Democrat, told me that the retirement of Kennedy putting it off and putting it off and hoping to delay it was one of the last prayers at night when the head hit the pillow. This is very, very, very profound for them about not just what the vote will do and how it will turn out in midterms, excite Republicans and conservatives, but really what it means about the impact of these decisions going forward.

BAIER: But the decision today about unions that really hits unions pretty hard, and also a big fundraiser for Democrats.

JONATHAN SWAN, AXIOS: So President Trump -- I think about it as two phases of the way he's thought about the court. The first phase is he has thought subsequently and I think is correct that it was a political masterstroke of his to release that list because it was really important to the Republicans base voters, it energized them. And so he sees that list as partly responsible for his victory. So that's the first way he saw --

BAIER: He is not wrong about that.

SWAN: Not wrong about that. But now he sees the real practical effects of the court. And he has learned that this week and particularly over the travel ban, because you had liberal courts stymieing the travel ban and this week it was upheld by the Supreme Court. So Trump now knows both the political force of this decision and the practical agenda force of this decision.

BAIER: Charlie, to listen to Leonard Leo who is advising President Trump on his next picks and also advised on Neil Gorsuch.

SWAN: And wrote a list.

BAIER: And wrote the list, that's right. There is really nothing Democrats can do other than trip up a potential candidate.

CHARLES HURT, THE WASHINGTON TIMES: No. And I think that by any schedule there ought to be someone confirmed by November. So we're looking at something that is going to probably happen before the election.

What will be interesting to see is what will those senators from those states that obviously Trump has targeted, senators from states that overwhelmingly voted for Trump, is it going to make it very difficult for them to vote against a nominee by Trump? This is the sweetest of sweet spots for Trump. This is the thing that units the establishment with the MAGA folks. And the greatest never-Trumper has to admit that Neil Gorsuch was a huge success and that the list that he picked from was a huge success, as Jonathan pointed out. And he will stick to this again because it's worked very well for him, and it's in all likelihood going to be another huge success.

BAIER: So he is talking about the Jon Testers and the Heidi Heitkamp's and the Claire McCaskills and the Joe Donnellys. They are going to be answering a ton of questions now in these races about how potentially they are going to vote. These are all the Democrats defending in red states, essentially, Trump states.

STODDARD: I predict minimum two of them vote for the nominee from that list.

BAIER: Whoever it is?

STODDARD: Absolutely. Minimum two, maybe more.

But the idea of Senator Gillibrand and other liberal senators, prospective 2020 candidates, saying we're not going to allow hearings. They don't run the Senate. No one cares if they show up at the hearing. Trying to grind the Senate to a halt to try to stop this -- they gave up the filibuster on Neil Gorsuch. They never showed up. It was a huge mistake. They're just going to add insult to injury for themselves. It really is going to be a mistake to pressure those senators, those Democrats you just named who are up in cycle by trying to shut the Senate down and stop this. It's not stoppable, and they need to take their toys and go home.

BAIER: Here's the president and the leaders in the Senate:


TRUMP: We will begin our search for a new justice of the United States Supreme Court. That will begin immediately.

SENATE MAJORITY LEADER MITCH MCCONNELL, R-KY.: The Senate stands ready to fulfill its constitutional role by offering advice and consent on President Trump's nominee to fill this vacancy. We will vote to confirm Justice Kennedy's successor this fall.

SENATE MINORITY LEADER CHUCK SCHUMER, D-N.Y.: Our Republican colleagues in the Senate should follow the rule they set in 2016 not to consider a Supreme Court justice in an election year.


BAIER: That wasn't the rule. It was a presidential election year. And you go back to President Obama who had a vacancy filled in August before a midterm election. There are obviously Democrats will make the case they should hold off until after the election, but they really don't have the backing.

SWAN: People in this environment will use whatever tools they can to advance their agenda. There are new rules. There are no standards of principle anymore. It's whatever you can do to eke out an advantage. So again, you said it best first. Their only tool is to try and prevent him from getting the votes to get through. That's it. And the whole ballgame is those 10 red state senators.

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