Leo: Trump made SCOTUS a defining issue for presidency

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Leo: Trump made SCOTUS a defining issue for presidency

Adviser to President Trump for judicial nominations reacts to Democrats opposing Judge Kavanaugh.

This is a rush transcript from "Your World," July 10, 2018. This copy may not be in its final form and may be updated.

(BEGIN VIDEO CLIPS)

VICE PRESIDENT MIKE PENCE: Judge Kavanaugh is a man of impeccable credentials.

SEN. CHUCK SCHUMER, D-N.Y., MINORITY LEADER: If anyone believes that Judge Kavanaugh or anyone else on the list would uphold Roe v. Wade, then I have a bridge to sell you.

SEN. MITCH MCCONNELL, R-KY., MAJORITY LEADER: That kind of cheap political fear-mongering insults the intelligence of the American people.

SEN. RICHARD DURBIN, D-ILL., MINORITY WHIP: Women lose in Kavanaugh's courts.

SEN. CHARLES GRASSLEY, R-IOWA: He's a respected jurist. I think his record speaks for itself.

SEN. DIANNE FEINSTEIN, D-CALIF.: His views are outside the mainstream. And there's every reason to believe he would overturn Roe.

SEN. JOHN KENNEDY, R-LA.: They ought to give the man a chance.

SEN. JOE MANCHIN, D-W.VA.: I'm want to look at all his findings and records and everything he's ruled on and all his writings and everything. So, it's a deep dive we have to do. I think it's our responsibility.

(END VIDEO CLIPS)

NEIL CAVUTO, HOST: OK. This is starting off well.

Welcome, everybody. I'm Neil Cavuto. And this is "Your World."

And a world of controversy around the president's pick to replace Justice Kennedy on the Supreme Court.

And doesn't Mike Emanuel know it?

The extremes on both sides alive and well and fiery today.

Hey, Mike. What is the latest?

MIKE EMANUEL, FOX NEWS SENIOR POLITICAL CORRESPONDENT: Neil, good afternoon.

This is just the start of the process that many Republicans and folks in the White House hope will end up with Judge Brett Kavanaugh sitting on the Supreme Court this fall. Judge Kavanaugh started making the rounds here on Capitol Hill earlier today.

His VIP escort initially was none other than Vice President Mike Pence. Those close to Kavanaugh describe him as thoughtful and considerate and very detail-oriented about legal cases before him. Democrats say they need time to review his extensive paper trail from his years during the Ken Starr probe in the Bush White House and more than a decade on the federal appeals bench.

Kavanaugh met today with Senate Majority Leader Mitch McConnell and Judiciary Chairman Chuck Grassley. Both of them are calling for a thorough, but swift confirmation process, with the new Supreme Court term starting in October.

In the coming days, you can expect Kavanaugh to sit down with members of the Judiciary Committee, which will consider his nomination. There will also be an outreach to swing voters, red state Democrats who could consider voting for Kavanaugh, reflecting their more conservative constituents.

Those close to Kavanaugh say he's an incredibly smart jurist, also not a polarizing personality. And FOX News has learned Vice President Mike Pence is expected to meet this evening with Chairman Chuck Grassley and Ranking Member Dianne Feinstein to talk about this Kavanaugh nomination -- Neil.

CAVUTO: All right, so here we go, Michael. Thank you very, very much.

EMANUEL: Yes, sir.

CAVUTO: Well, anyway, Senate Minority Leader Chuck Schumer spending a good part of the day picking apart the guy who, well, the president chose to be his guy.

(BEGIN VIDEO CLIP)

SCHUMER: Who has vetted these judges? A preordained list of 25, preordained by The Federalist Society and the Heritage Foundation.

The Federalist Society is run by a man named Leonard Leo, whose goal in life has been to repeal Roe v. Wade. Ed Whelan, leading conservative commentator, said that no one has done more to create a Supreme Court that would repeal Roe then Leonard Leo.

He created the list from which Trump chose.

(END VIDEO CLIP)

CAVUTO: All right, fair and balanced, a chance for Leonard Leo to speak for himself, adviser to the president for judicial nominations and a key player in the selection of Judge Brett Kavanaugh for this seat on the Supreme Court.

Very good to have you.

LEONARD LEO, FOUNDER, THE FEDERALIST SOCIETY: Great to be here.

CAVUTO: Well, you have been painted already as this right-wing evil force. How do you respond to that?

LEO: You know, what Senator Schumer saying is really insulting and offensive to the president.

From the very beginning, this president made the Supreme Court a defining issue in his Campaign and his presidency. He came up with the idea of doing a list. He owns that list. He campaigned on it.

This whole Supreme Court issue is part of a campaign more than any other candidate. It propelled him to victory. It helped hold the Senate, Republican majority.

CAVUTO: But you did build that list, by and large? Were you key to it?

LEO: Look, it's a list that certainly I played a role in.

And it's a list, frankly, that any objective observer of the court's could have put together.

CAVUTO: But it's a conservative list of 25 judicial candidates who would make good Supreme Court justices.

(CROSSTALK)

LEO: Sure, absolutely.

CAVUTO: All right, so you came up with that.

There have been a lot of investigations into the list and what was behind it, and you behind it. Tom Carter, a fellow I guess used to be your number two or worked with you, alongside you, at The Federalist Society and elsewhere, said that you were a visionary, said Leonard Leo is a visionary.

But he went on to say, "He figured out 20 years ago," referring to you, "that conservatives have lost the culture war, abortion, gay rights, contraception. Conservatives didn't have a chance if public opinion prevailed, so they needed to stack the courts."

What did you think of the way The Huffington Post and others started to frame that?

LEO: Well, that's a complete lack of understanding of history.

The people who are on the wrong side of the culture are the left. And that's why they captured the courts. And that's why they want to stack the courts with people who are going to check their own litmus tests on abortion and on other issues.

CAVUTO: So, how would you look at the people that you ultimately would put on a list or have the president consider? What kind of rigors did you use?

LEO: Sure.

For the president, Neil, it's all about what makes a judge most fair is interpreting the law the way it's written. It's enforcing those limits on government power that are contained in the Constitution.

We believe -- and this is what the president believes, most importantly -- that at the end of the day the reason why a judge wears a black robe is because he sheds his political predispositions.

And we got to get -- we got to get the court out of politics. And the way to do that is to have a confirmation process that focuses on the business of judging, what it means to interpret the law, and not just checking every box as to what you want in a certain kind of case.

CAVUTO: Did Roe v. Wade enter into your thinking?

LEO: No. That's not the way I think about the process.

And more importantly than what I think, it's not what the president did. I can tell you throughout this process the president never discussed with me or anybody else I know the Roe v. Wade issue or the abortion issue.

CAVUTO: But you're a Catholic, right?

LEO: Sure.

CAVUTO: OK.

The only reason why, the media is making a big deal that three out of the four finalists were Catholics. This Judge Kavanaugh, Catholic. Nothing wrong with that. I'm Catholic.

But that the inference was that that is where the bias was on your part or The Federalist Society's part and everyone else around here to get those type of thinkers, pro-life thinkers together.

Was that true?

LEO: That is not what propels the conservative legal movement in this country.

What propels it is what Justice Scalia stood for through his entire life. And that's the idea that it's the business of the court to interpret the Constitution faithfully and to leave your politics and your culture and your religion and everything else aside.

That's what this president believes. That's what the American people want. What Senator Schumer and the liberals want is, they want a justice who's going to check the boxes on their left-wing extremist issues.

CAVUTO: All right, so when it comes to the Catholicism -- and you have heard this -- that...

(CROSSTALK)

LEO: By the way, I can't believe -- I can't believe that right here and now in our country, we're talking about whether Catholics can engage in a vigorous public debate about the proper role of the courts.

And every time we open our mouths, it's about what we view in our own religions. We can believe in the rule of law just as faithfully as anybody else.

CAVUTO: No, no.

And, by the way, I raised this yesterday on this show, where people were talking about, as has happened before -- and it had -- with John Kennedy running for president. Democrats rallied around him, said that he was a candidate for president, not a Catholic candidate for president, but very different political environment now, I guess.

LEO: Well, the only difference is they don't call us papists anymore.

(CROSSTALK)

CAVUTO: All right.

But is there a litmus test you look for? Obviously, conservative thinkers, those who are originalists and not to go beyond what the intention of our forefathers.

But on issues like Roe v. Wade, you hear Justice Roberts talk about not going back against precedent. Courts have gone against precedent in the past. Do you think with Roe v. Wade they should, you, yourself?

LEO: The most important thing to think about with Roe v. Wade or any other precedent of the court, is what's the role of precedent in stare decisis in judicial decision-making?

And Brett Kavanaugh, to give you an example, is co-author of one of the most important books we have today on the issue of precedent and how to struggle and grapple with it. He actually co-authored it with Neil Gorsuch, who's, of course, also on the court, and with several other judges.

And what that book says is, look, when you have a major precedent of the court, you have to think about it, you have to struggle with it, and you have to...

CAVUTO: But what if they find that that precedent is wrong or they're against what was done in the past?

Now, I get a sense from Chief Justice Roberts it would take an act of godly influence, I guess, to change a precedent that's been established by the court and people have gotten used to for the better part of 45 years. Do you know whether Justice Kavanaugh feels that way?

LEO: No one can know what a Supreme Court justice is going to do.

But I will tell you this. This is a court that, if you look at trends in history, is pretty minimalist in terms of when it overturns precedent. It really avoids that.

And so that's kind of where we are historically. And so the important question is really what Senator Collins and others have been asking, which is, do we have -- do we have someone who's not just going to outright hostility toward cases and is really going to grapple with precedent?

And I think Brett Kavanaugh's record shows that he goes into a case being fair and open-minded. And he does believe that the courts need to consider precedent.

And that's a very important part of the confirmation process.

CAVUTO: Mitch McConnell must have had such -- because he loves all four candidates, but he had particular concern about Judge Kavanaugh, that maybe that long record -- and you're right. It's a brilliant legal record of opinions and dissents.

You get a full breadth of the guy over a dozen years of such rulings -- could work against him, because there's an enormous trail to go through. And people are going to pick it apart. And it is just going to be bedlam. And he wanted to save the president that trouble.

LEO: Well, fortunately, we know a little bit more about the record than when Senator McConnell spoke.

So, the Bush Library has now indicated that, yes, there are a lot of documents, but many of them are duplicates. And an awful lot of them are things that no one's going to be interested.

He was staff secretary to the president. So White House menus, public press releases. I mean, if Senator Feinstein wants to scrutinize what soup they had on Wednesdays and Fridays, that is fine.

(CROSSTALK)

CAVUTO: Every document, they went through them in that case.

But, Leonard, let me ask you. Did you -- when you were putting this and helping to put this list together for the president, did the president relay to you a basic, not a litmus test, but standards he was looking for?

Obviously, a conservative justice and all that, but did it go beyond that on key issues, gay rights, any of this? What was the marching order?

LEO: On at least three occasions when I discussed this with the president, he laid down three criteria, and only three.

And these are his direct quotes. One, extraordinarily well-qualified. Two, not weak, by which he meant someone who is not going to be swayed by the political or social fashions of the day and was going to call them the way he sees them.

And, thirdly -- and this is his formulation -- someone who's going to -- quote -- "interpret the Constitution the way the framers meant it to be."

Now, look, Neil, you saw some of that in yesterday's opening remarks by the president. He said that consistently the very first time in March of 2016, when we met. He reiterated that literally a week after the presidential election in Trump Tower, when the list -- the first list began to become narrowed.

And he reiterated that both at the time of the nomination of Neil Gorsuch and at the time of his swearing-in. That's at the core of what he believes. That's what has driven the process. And that's -- that's where he stands and where he has stood ever since he began running on the issue.

CAVUTO: Was attorney any talk about -- he was obviously involved in the Whitewater investigation and all of that, working with Ken Starr.

That he went too far? There was talk that he thought that that was an overreach, to start to examine and overly be hostile toward the president, a sitting president, and that have his views change since then? Some interpreted his selection as a sign he would not aggressively go after President Trump, for example.

LEO: You meet Brett Kavanaugh?

CAVUTO: Yes.

LEO: First of all, people really ought to do their homework before they talk about what Judge Kavanaugh believes here, because the articles he's written don't say that.

What they say is, look, if you have an independent counsel or a special prosecutor, there ought to be some accountability and transparency, right, because civil liberties are at stake.

But what Kavanaugh was talking about in that article wasn't what a judge ought to do about an independent counsel, but what Congress ought to do in fashioning a law that gives independent counsels power.

And so this has nothing to do with judicial power.

CAVUTO: But it never represented a change in his thinking, Leonard, from what he was when he was looking at Bill Clinton to evolving or changing his point of view, what he would do today in the same circumstances?

LEO: No. No.

He was recognizing that every government official needs to be accountable, transparent, and Congress needs to put limits on any government bureaucrat or official's power.

CAVUTO: What is your sense of how this whole thing's going to go? I mean...

LEO: He's going to get confirmed.

CAVUTO: All right, do you see any Democrats jumping toward him?

LEO: I think that Senator Manchin, for example, has been very thoughtful throughout the judicial selection process.

He was very thoughtful during the Gorsuch confirmation, during a lot of court of appeals nominations.

CAVUTO: What about on the Republican side? Lisa Murkowski or Susan Collins? Sort of bristle at the possibility that he could push Roe v. Wade.

LEO: Well, I was very heartened by Senator Collins' comments, particularly where she said that the most important thing for her is to find someone who's going to -- quote -- "adhere to the Constitution and the laws of the United States."

(CROSSTALK)

CAVUTO: ... respect precedent.

LEO: Well, absolutely.

A judge has to respect precedent. Precedent has always been a...

(CROSSTALK)

CAVUTO: Do you personally believe we should respect the precedent of Roe v. Wade?

LEO: I think -- look, I mean, I -- I'm not the one that's been nominated.

CAVUTO: I understand.

LEO: So, what I think doesn't matter.

But what I do think is that a judge would not be doing his job if he didn't sit there and struggle with a precedent. And, one, a judge has to decide whether a precedent is strong enough to survive.

And, again, when you have major precedents of the court, that's a big hurdle. And Judge Kavanaugh will explain what his standards are here.

CAVUTO: I understand.

Are you also going to be behind any other future picks that come up? Will it always be from that list?

LEO: That's up to the president. It's the president's list.

He said he's going to pick from the list. He did refresh the list last fall. Who knows what he will do.

But, at the end of the day, what's really heartening about all of this is, for the first time in our modern history, we have got a president who really is making this a big part of his legacy.

CAVUTO: We will watch very closely.

Leonard Leo very much advises the president on judicial nominations.

The read from Senator John Cornyn on all of this after this.

(COMMERCIAL BREAK)

CAVUTO: All right, they didn't waste any time on Capitol Hill.

Brett Kavanaugh planning his visits to Capitol Hill.

One of those who there to meet him and sort of him get him ready for this whole process, the Senate majority whip, Judiciary Committee member, John Cornyn of Texas.

By the way, fair and balanced, we did call his counterpart, Senate Minority Whip Dick Durbin. He declined. Now, that was rare for us. They got back to us.

All right. So, Senator, very good to have you. And I appreciate it.

SEN. JOHN CORNYN, R-TEXAS: Thanks, Neil.

CAVUTO: Abortion right away becomes the issue du jour.

You commented on Chuck Schumer demanding earlier today that this candidate immediately answer the following question: Do you support a woman's constitutional right to an abortion? And would you vote to overturn the '73 decision that guaranteed it nationwide, Roe v. Wade?

You found that ridiculous.

CORNYN: Well, I think it would be wrong for any candidate for judicial nomination, any -- especially for the Supreme Court, to tell ahead of time how he or she would decide a contested case, when they don't know what the facts are and they don't -- and they have to respect either precedent by the courts or by the decisions of Congress and apply it.

So no self-respecting nominee is going to answer that question ahead of time. Ruth Bader Ginsburg refused to do it, and appropriately so. And I think Brett Kavanaugh should decline to answer it as well.

CAVUTO: Yes. You called the demand on, I think, Senator Schumer's part a pipe dream.

And you refer to Ruth Bader Ginsburg, sir. And I think that was the start of the non-answer hearings. Both sides got very, very good at this, not specifically answering any case law, potential law that could come up or issue that could come up. So they get to be very general, vague affairs.

I'm wondering if that's what we're looking at here. CORNYN: Well, I think it's going to be an interesting confirmation process.

We know the left has decided to go to war on this issue, and -- because they view the Supreme Court as a policy-making arm of the federal government. For a long time, they have simply ignored Congress or losses at the ballot box, and decided that they were going to promote judges who would make policy or legislate from the bench.

Obviously, Judge Kavanaugh is not that kind of person, just like Neil Gorsuch is not that kind of person. And he believes policy should be made by the executive and legislative branch. And they're the only ones held accountable to the voters for their decisions.

So, you might say this is going to be not as exciting as it might be, if we're talking about all these hot-button issues.

CAVUTO: Right.

Senator, I misspoke before. I thought had already met with the judge. You will have your own meeting. You're a bigwig there. So, of course you will your own private meeting.

But how do you expect this usual courtesy -- series of courtesy calls to go? Virtually every Democrat, save those maybe in close red states, where the incumbent Democrat could be in some trouble, is expected to vote against this candidate.

In fact, right out of the gate, without a name, they were saying that. How do you think this ultimately goes? Do you lose a couple of Republicans and need a few Democrats? Or what do you think?

CORNYN: Well, I think the Neil Gorsuch confirmation is pretty good indicator of where the votes are going to come down.

I was very disappointed to hear some of my Democratic colleagues say they wouldn't vote for anyone nominated by the president, and no matter what the name was, no matter what the background was.

And so I think we saw three Democrats vote for Neil Gorsuch.

CAVUTO: OK.

CORNYN: And I think that's probably the ballpark of what we're looking at for Brett Kavanaugh.

CAVUTO: We shall see.

Senator, thank you very, very much. I know it's been a busy day for you.

CORNYN: Thank you.

CAVUTO: We will have more after this, including the latest on that NATO meeting coming up.

(COMMERCIAL BREAK)

(BEGIN VIDEO CLIP)

PRESIDENT DONALD TRUMP: It's going to be an interesting time in the U.K. and it's certainly going to be an interesting time with NATO.

NATO has not treated us fairly, but I think we will work something out. We pay far too much and they pay far too little.

(END VIDEO CLIP)

CAVUTO: All right. Now he is in Brussels, and now he's going to meet with his European counterparts. And they're no mood to hear from him on lectures of money, even though it's true what the president says. Very, very few of the 29 NATO countries foot the bill here.

But that has already prompted some angry responses from some of those members.

Before I get into that, I want to get right to Francesca Chambers The Daily Mail White House correspondent, who I believe is in Brussels. Indeed, she is.

Francesca, how -- what is the mood there? I know that sounds like a classic anchorman question, but it's obviously got to be a little chilly. They have not been looking forward to this day. And here it is.

FRANCESCA CHAMBERS, THE DAILY MAIL: Right.

Well, today, we had what you call the doing Donalds, Neil, where you had Donald Tusk saying here in Brussels that the U.S. should be nicer to its allies, really, saying that it doesn't have that many.

And that was after President Donald Trump this morning was tweeting about NATO again, berating U.S. allies for not spending more on security in Europe, meanwhile saying that they have massive trade gaps with the United States.

So, Tusk hit back at him here in Brussels. And then President Trump was asked about it on the White House's South Lawn. And he said the United States had plenty of allies, but then doubled down on his position, making it clear that in these meetings tomorrow he intends to pressure the U.S. allies not just on security, which is what they're here to talk about in NATO, but also on the issue of trade.

CAVUTO: I thought this European chief was a little condescending in his remarks, saying you got to realize, Mr. President, appreciate your allies. After all, you don't have that many.

Is that to say that the 29 NATO members don't count as many, are they not with him, are they not on his side? What?

CHAMBERS: Well, he issued two warnings, Neil.

That was the first of the warnings. The other one was to encourage European countries to spend more on defense, in response to President Donald Trump. And that's been something that everyone here has recognized and acknowledged, that since President Trump ran out as a candidate and since he took office, that defense spending has actually increased to NATO.

In fact, previously, there were three countries that NATO Secretary-General Jens Stoltenberg said today had previously spent the 2 percent commitment that they made in 2014 on defense spending. However, since President Trump has taken off, that has increased to eight countries, Neil.

So the president is having an impact and is having an effect. And that the U.S.' message here.

CAVUTO: Yes, and with 21 to go, I believe, if my math is right here.

The president did say, to your point, just to clarify, we do have a lot of allies, but we cannot be taken advantage of. We're being taken advantage of by the European Union.

This at the same time we're looking at separate trade battles with a lot of those European partners, in the middle of our standoff with the Chinese, and, then, lo and behold -- and we're going to be discussing this later in the show -- the Chinese and the Germans coming together on a deal on that could be a sign of things to come.

This looks like it could be a tension convention.

CHAMBERS: Well, I'm the president is upset on multiple fronts, as you're noting.

First, there's the trade spat that he has with Canada. And this will be the first time that he's had to come eye to eye with the Canadian prime minister, Justin Trudeau, since the G7 summit, where the president left thinking that they were roughly on the same page, and then was in the air when Trudeau said that they weren't.

And then the president pulled himself out of the G7 communique. So, that is something that we will be closely watching tomorrow. But you also bring up Germany.

President Trump said last week at a rally in Montana that he's upset with Germany for not paying enough to NATO. It's not meeting its 2 percent commitment. It's making roughly 1.2 percent. The president has rounded that down to 1 percent. But that's another issue that we expect to see.

And the president said at that rally that he doesn't understand why Germany pays billions of dollars to Russia. That's something that he's very upset about. Meanwhile, saying that it needs the United States and needs NATO them to protect them from Russia on the security front.

CAVUTO: Boy, I can feel the icy wind.

All right, Francesca, thank you very, very much. Enjoy yourself there.

In the meantime, we're focusing on the battle that Francesca was pointing out and China and Germany making nice on a potential trade deal, or at least icing the United States out.

Are you getting worried? After this.

(COMMERCIAL BREAK)

CAVUTO: Looks what is barrelling up. Tropical Storm Chris set to become a hurricane off the East Coast. Could happen later today. Already, strong rip currents. You know the drill. People are getting nervous. We're on it.

Back in 60.

(COMMERCIAL BREAK)

CAVUTO: All right, on the corner of Wall and Broad, more buying again. On the top of the 320 points yesterday on the Dow, another 143 added right now.

So if they're worried about what could be a raucous Supreme Court test for Brett Kavanaugh, they had a funny way of showing it, or about an imminent trade war and the fact that the Germans and the Chinese are going into cahoots together, at the expense of us, again, a funny way of showing it. Maybe they suspect cooler heads will prevail.

Speaking of cooler heads, Ohio Republican Senator Rob Portman joins us right now, a member of the Foreign Relations Committee.

This is right up your alley, Senator, if you think about it. Foreign relations and all, they're at tenterhooks here, with the president now pushing NATO to the edge here, you have got to, got to, got to pay up, and separately inviting their wrath on these trade issues.

Are you surprised that it's gotten the response it has? The European Commission head is saying effectively, you know, watch your allies. You don't have that many of them.

SEN. ROB PORTMAN, R-OHIO: Well, first, on the 2 percent NATO commitment, they ought to do it.

I mean, I think the president's right on that. And he's seen some real progress, $14 billion more in defense spending just in the last year.

So, the European countries are starting to come on board. I think they understand that we have borne the lion's share of this for too long, and it's time for them to step up more.

On trade, though, I have got to tell you, Neil, I have talked about this before. We have got to be careful, because if they're doing something unfair in terms of trade, yes, use our unfair trade laws and go after them.

You can use the international rules, the WTO rules. But if you state a national security mechanism, like 232, against trade, you don't have to prove any injury. You don't have to prove any unfair trade. You simply say it's because our national security.

My concern there is, one, you're going to get serious retaliation, as you have seen. And you are going to have other countries use the same mechanism against us. That means higher tariffs. That means bad for consumers. That means bad for our exporters.

CAVUTO: Well, are you raising this with the president?

I notice Republicans, this goes against your DNA to fight these kind of battles. You're generally a laissez-faire party. Keep the government out.

This president, though, seems to be given a little bit of attitude here. Maybe your members feel and your colleagues he's been proven right on some things. It's worked out. You seem to be keeping your faith that this will all work out?

PORTMAN: Well, first of all, there are two different, I think, areas here.

One is China. And I think there you have a lot of consensus that China is using unfair trade. And what we're going after them on under what's called Section 301 is about unfair trade. That's appropriate. And although it's going to hurt some of our exporters here, and it's going to hurt some our consumers here, people do realize you got to take on China and deal with this unfair trade issue.

CAVUTO: Yes, but we're going after everybody else, Senator. We're going after Canada and Mexico.

(CROSSTALK)

PORTMAN: Exactly. That's the issue, when you're going after your allies.

(CROSSTALK)

CAVUTO: Some of that might be justified.

But what do you tell the president? Some of your colleagues were saying, we want this approved in the Senate. You can't just willy-nilly do this on your own. And it didn't go anywhere.

PORTMAN: Yes.

I have talked to him about it, of course. And I talked to Secretary Mnuchin as recently as last night about it. I have a call with the trade representative this afternoon on it, Bob Lighthizer.

And I do think we have to be careful. And we have to be targeted and specific. So, look, if a country like...

CAVUTO: Well, they're obviously ignoring you, Senator. Right? They're not heeding that.

PORTMAN: Well, I think they have a plan.

I just don't know if it's going to work, because the plan would be put pressure on by increasing the tariffs using a national security rationale. Hard to explain how you use national security on some of these tariffs. But let's say you use that rationale.

And then eventually they will cry uncle and they will come around to other issues we want them to be concerned about, like auto tariffs. The Europeans do have higher auto tariffs than we do. We have high light truck tariffs, but they have high auto tariffs.

But, Neil, this is where you have a negotiation. And with allies, you don't want to have a situation where they are turning to other trading partners. You want them to continue to buy our stuff.

CAVUTO: That's what's happening.

The fact that Germany and China are even talking about doing their own thing, does that worry you?

PORTMAN: Well, look, we're the biggest market, we're the biggest economy in the world. They want to deal with us.

So, ultimately, it worries me, but not a lot. And I think that's one reasons the markets are reacting as they are. But let's talk to them as allies. Let's negotiate this thing. Let's be sure that they know we're serious and let's use the kind of trade remedies where they can't then turn around and retaliate against us and it becomes a tit for tat.

CAVUTO: Yes, that's always a threat.

And let me switch gears. And I'm jumping on you. I apologize. And people get furious, as they should.

Brett Kavanaugh and his journey to become the next chief justice -- justice, I should say.

PORTMAN: You're promoting him already.

(CROSSTALK)

CAVUTO: Yes, I know. I'm already promoting the guy.

PORTMAN: I like that.

CAVUTO: Do you think it's going to be hard? I was thinking of the chief justice, because he, of course, is one who is not keen on breaking precedent, legal precedent.

We're told that Judge Kavanaugh might have a different mind-set on that. That could come up on Roe v. Wade. But what do you think of this whole thing?

PORTMAN: I think he's a great pick. And I don't think he will have a hard time at the end getting confirmed.

But there will be a fight here. And, unfortunately, it will be a partisan fight. In other words, it won't be about this guy's qualifications, clearly qualified.

His brilliance, his intellectual brilliance, clearly, he's a very smart guy. It won't be about his record, because he has been a fair and impartial judge, I think, with the right philosophy that most people want.

So I'm concerned that it's becoming too partisan. This town is enveloped in partisanship now, to the point that even before he's picked, everybody says the other side of the aisle can't support him. They don't even know who he is yet.

And so I do hope that we will have a fair hearing here, that he has a chance to be properly vetted. I think people are really going to like him.

I happen to know the guy, Neil. I have known him for over 15 years. I also know his wife. They both served in the Bush administration with me. And really fine people.

(CROSSTALK)

CAVUTO: Do you know if Susan Collins and Lisa Murkowski like him?

PORTMAN: Yes.

Well, they -- I'm sure they like him, because who wouldn't like this guy? They may have some differences in terms of judicial philosophy.

But they voted for Neil Gorsuch. And this guy, Brett Kavanaugh, to me, is very much in the mold of Gorsuch in terms of his judicial approach, which is one of restraint, but also independence and impartiality.

In other words, he's not going to go in with his own set of views. He's going to hear every case as it comes down.

As you know, in the process here, when there were three and four people on the list, sometimes, Brett Kavanaugh wasn't the top pick of some people on the right because of his independence.

CAVUTO: That's right. That's right.

PORTMAN: And I think that's what you want in a justice. That's what most people want.

So I hope that he can get confirmed with a pretty strong vote and end up on the court and then prove his skeptics wrong, because I think he's going to be great justice.

CAVUTO: All right, we shall see.

Always a pleasure, Senator. Thank you very, very much.

PORTMAN: Thanks, Neil. Good to be on with you.

CAVUTO: All right.

You know, not everyone on the left feels that this justice pick is a waste of time. I want you to meet the liberal who is supporting this Supreme Court nominee.

And he has some reminders for Democrats in general. Step back. Step way back, when we're back.

(COMMERCIAL BREAK)

CAVUTO: All right.

It's already assumed that getting Democratic support for Judge Kavanaugh is going to be next to impossible. Then, lo and behold, I'm reading in The New York Times a liberal's case for Brett Kavanaugh.

Akhil Reed Amar is Yale Law School professor. What is it with all these Yale guys? They're conquering the world.

Anyway, he writes very eruditely, very, very -- steps way back from the vitriol of the moment to make that case that, even though he strongly supported Hillary Clinton for president, as well as Obama's pick, Merrick Garland -- remember, he didn't go anywhere -- he thinks that this nominee's credentials are impressive.

And he joins me right now out of New Haven, Connecticut, to talk about it.

Professor, good to have you.

AKHIL REED AMAR, YALE LAW SCHOOL PROFESSOR: Thank you for having me.

CAVUTO: What kind of reaction, first of all, have you gotten from this column?

AMAR: There's a lot of anger in America on the right and on the left.

I don't think that's good for Americans. We have a lot more in common. So, a little bit more blowback from the left than I expected, but this is the beginning of the process. And I would like us all to come together, actually, ideally. It's still possible.

There used to be a time when justices got confirmed, judicial nominees, by 90 or more votes.

CAVUTO: Oh, I know.

AMAR: Antonin Scalia did on the right, and Ruth Bader Ginsburg did on the left.

CAVUTO: You go on to write: "Although Democrats are still fuming about Judge Garland's failed nomination, the hard truth is that they control neither the presidency, nor the Senate. They limited options. Still, they could try to sour the hearings by attacking Judge Kavanaugh and looking to complicate the proceedings whenever possible."

And that's exactly what could develop now. And no one wins in that instance.

AMAR: It could. And be careful what you wish.

Suppose, even in the best case for the opponents, suppose they actually defeated this nominee. Would you get someone better as the next one? I think not at all.

I think Brett Kavanaugh is spectacular. And it's a fine list, but he's the best on that list that President Trump circulated.

CAVUTO: What do you like about him, Professor, if you just could update people on that?

AMAR: He's thoughtful. He reads. He reads across the board. He hires clerks across the board, women, as well as men. He's respected by all the justices on the Supreme Court across the spectrum.

They hire his law clerks. They followed various opinions that he's -- and ideas where he's written some lower court opinions, and then the Supreme Court has followed his lead. But basically I think he's smart and open- minded and fair and decent.

And he actually supported Merrick Garland. And don't be surprised if Merrick Garland supports him.

CAVUTO: You do raise the possibility that there might be a better or different way of doing this.

You talk about fair questions you could ask Judge Kavanaugh in this case about past writings, activities, also about how he believes various past notable judicial cases, Roe v. Wade, should have been decided.

Now, that's an interesting way to take on a controversial issue, because all these candidates tend to eschew anything having to do with how they would rule on something.

You are positing, what about going back in time and looking at a case? But I still thought to myself, that will never happen. Those questions will never come up. Or if they do, no smart candidate in this case, you know, this judge, is going to respond.

AMAR: It might be a utopian proposal.

But I'm trying to move the confirmation process forward, so it's not just a game of keep away and gotcha. It's not -- doesn't degenerate into personal attacks. It's not a rubber stamp. It's not a witch-hunt.

The candidate is asked questions about his legal views, not his personal political views, his legal views. He answers and gets the benefit of the doubt when he answers. That's his reward. And everyone understands that the answers are not promises or pledges, because once confirmed a judge has to feel -- a justice has to call it as he sees it.

And even if he just changes his mind in the interim or if he encounters a new argument, legal argument, or new evidence, he has to be free to change his mind.

But I'm trying to actually reform a badly broken confirmation process.

CAVUTO: No, you're quite right, because it ends up being you get 50- something votes, if you're lucky, and that's it. End of story. It's nothing like the old days.

But being that you're more liberally minded, and you're looking at the judge here, and looking at Kavanaugh as a thinker, as a jurist, as an excellent writer, academic, do you think that he would be that conservative vote?

Or is he potentially, maybe just like Justice Kennedy he will be replacing, more of a swing vote, and that he won't fit or comport the labels some on the right are assigning him or hope to assign him?

AMAR: Well, Justice Kennedy is the justice for whom Judge Kavanaugh clerked.

CAVUTO: That's right. That's right.

AMAR: And I think there's a lot of similarities between these two.

To the extent that there might be any difference, there are different flavors of liberals, different flavors conservatives. I think Judge Kavanaugh is more of an originalist. And that's not a bad thing.

That is someone who actually -- and I got my Constitution here -- who cares a lot especially about the text and the original history and understanding the Constitution.

There have been great liberal originalists, Hugo Black on the Warren court, and conservative originalists, Clarence Thomas. I think actually Clarence Thomas is a better originalist than Justice Scalia was, because Clarence Thomas was more open to read his book history books and historical scholarship.

CAVUTO: Wow.

AMAR: And I think Judge Kavanaugh, when he becomes Justice Kavanaugh, if and when he does, will be very open to reading good historical scholarship, trying to give him a better sense and his colleagues of what this document really says.

CAVUTO: So, you just want to get away from this idea that it goes, I think, as you said, the ping-pong, back and forth, hearings that prove nothing. You want them to prove something.

You want them to elevate this debate.

AMAR: I think it would be amazing if the Senate became a place for serious constitutional confirmation -- conversation. A nominee could really show his legal chops. And, boy, Brett has them.

A president would be rewarded for a really good nomination. The reflected glory would -- would redound to the president, as well as the nominee. And the American people would get a good lesson in serious constitutionalism and where reasonable people actually disagree.

CAVUTO: Interesting.

AMAR: I know it's utopian. It's pie in the sky. Right now, we're very deeply divided. I'm trying to see if we could possibly find a way forward.

CAVUTO: No, I think you offer a lot of good ideas, Akhil Reed Amar, a way to bridge the gap, and a very hot and feisty gap between the two sides. At least you give a blueprint here.

Very good seeing you, Professor. Thank you.

AMAR: Thank you.

CAVUTO: All right, the fallout from that after this.

(COMMERCIAL BREAK)

CAVUTO: You know, as if there's not enough going on in Washington, now we're getting word that former FBI lawyer Lisa Page is expected to appear for a private, closed-door interview with the House Judiciary and Oversight Committee members tomorrow.

Peter Strzok, as you know, is getting ready to testify in public on Thursday. Will either, both show up? What will come of it? I think they have to show up at this point, told in advance. They have little printed invites and all that.

Anyway, The Federalist's Mollie Hemingway is with us right now.

Mollie, what are you watching for?

MOLLIE HEMINGWAY, THE FEDERALIST: Well, whenever people come before Congress, you get a lot of grandstanding from both Democrats and Republicans.

CAVUTO: No way? Really?

HEMINGWAY: Lengthy -- lengthy speeches, where they like to hear themselves talk.

I would hope they would actually use this time to just get answers. There is so much we don't know about this investigation, why it started, when it started, what tools were used.

Yes, Peter Strzok and Lisa Page were crazy biased. And they appeared to make bad decisions. But we need to just know more about just the more important issue of what the FBI was doing, surveilling the Trump campaign and how that was handled.

CAVUTO: Would they know that, Mollie? Would they know the genesis of that? A lot of people have said some of the outlandish things they were saying about then candidate Trump might have been because they were aware of some of this Russian stuff.

That might be giving too much the benefit of the doubt. But what do you think?

HEMINGWAY: No, no, no, I would love to hear what they have to say, but they're definitely two key players, not just in the Clinton e-mail investigation, but also this Russia probe.

And they would know a lot about the use of confidential informants, again, when things started, why they started, what the legal basis was, whether there were ethical concerns about surveilling a major party's presidential campaign in the middle of the election season, and just how they followed protocol, whether they followed protocol.

These are the people who would know. Lisa Page was...

CAVUTO: But Strzok wouldn't do that in a public venue, right? The FBI would be all over him.

HEMINGWAY: He should be asked these questions.

And, of course, it's very frustrating, because the FBI and DOJ have not been forthcoming in private venues. But the American people really do need to know these answers, so we can have faith and trust in the FBI and Department of Justice.

And the answers need to come out one way or another.

CAVUTO: We still don't know what was the start of this, do we?

HEMINGWAY: We don't.

And it's kind of amazing that we're this part -- far into it.

But what we also know is that we don't have good evidence of the entire thing that we have been looking for, which is treasonous collusion with Russia to steal an election.

And not having that is really interesting at this point. And, again, people who don't think that political differences should be criminalized or subject to surveillance really want to make sure that this is something that the FBI handles properly.

CAVUTO: Well put.

Mollie, thank you very much, Mollie Hemingway of The Federalist, also a Fox News contributor.

And, as Mollie and others have pointed out, as we look at this -- these close ties or whatever, these disparaging comments, that many were making, identified and anonymous, not a one expressed a bias toward Donald Trump, not a one. They might be there, but I have yet to see them.

That will do it here.

"The Five" is next.

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