Leonard Leo on why Trump appointed Judge Kavanaugh

This is a rush transcript from "The Ingraham Angle," July 9, 2018. This copy may not be in its final form and may be updated.

LAURA INGRAHAM, HOST: Good evening from the White House. I'm Laura Ingraham. And this is "The Ingraham Angle" on a historic night here in DC. Less than an hour ago right behind me, President Trump fulfilled a campaign pledge and nominated a staunch Conservative to replace the retiring Justice Anthony Kennedy on the Supreme Court of the United States.

53 year old Brett Kavanaugh is currently a judge on the DC Circuit Court of Appeals which and widely regard as the most prestigious court of the United States, outside of the Supreme Court itself of course. Judge Kavanaugh is straight out of central casting. A judge who would have been strongly considered, I think, by any Republican President. He's a graduate of Yale College and Yale Law School, I won't hold that against him and even clerks, of course, on the Supreme Court for the man he's nominated to succeed Justice Anthony Kennedy.

Joining me now to analyze the president's pick is the senior Fox News political analyst Brit Hume, former White Water Independent Counsel Ken Star who was Judge Kavanaugh's boss during the investigations into Bill Clinton, Justin Walker, a law professor at the University of Louisville who clerked for both Judge Kavanaugh and Justice Kennedy and here with me at the White House is federal society's Leonard Leo, the President's top outside advisor on judicial picks.

Now Leonard we got to go to you first, I mean Congratulations. You are also kind of the man of the moment because you've been working this process behind the scenes. We were both in that room together when Brett Kavanaugh walked out. His father comes out first, his mother, Mrs. Scalia was there, Jean Scalia, two of the sons of Mrs. Scalia. And of course General Edwin Meese from the Reagan administration and former attorney general. What did you feel, I know how I felt, when all of that was going down?

LEONARD LEO, EXECUTIVE DIRECTOR OF THE FEDERALIST SOCIETY: Oh a tremendous sense of history going all the way back to the Reagan administration. You know the idea of transforming the federal judiciary to respect the constitution and the law. Of course seeing Brett and his beautiful family and thinking back on his many years of accomplishment. It was an electric evening, a magical evening.

INGRAHAM: Now twelve years on the circuit court of appeals, for people who aren't really into the legal organization of the court, the DC Circuit is the second highest court, for all intents and purposes. There's a lot of administrative law cases Leonard, that are decided there, kind of a lot of geeky Orissa cases, I can't believe I just said the word Orissa, forget that just said that. But a lot of cases that come out of the administrative law process and Judge Kavanaugh dealt with a lot of those cases. Doesn't have a lot of judicial opinions on the First Amendment and that concerns some Conservatives, should they be concerned?

LEO: You know, he's got a couple of cases on religious freedom which is really important. He does have one really important finance case and he's got all these cases involving the administrative state where he gets into the whole issue of how government needs to be accountable and transparent and the separation of powers and the constitution needs to be respected. Its' an incredible record, almost 300 opinions.

INGRAHAM: Now, he said, and this is what stuck in my mind. I know it sounds contrite but "I revere the constitution" Like everyone says they revere the constitution. But someone like, full disclosure I've known Brett for 27 years, he does revere the constitution. People were criticizing him over the last 72 hours because he was staff secretary, which is run the paper flow for Bush 43. Bush 43 did not really support is President, did not vote for this President so a lot of Conservatives said, "Well he comes out of the Bush administration, how can we trust him to be a Scalia or a Thomas or an Alito or a Gorsuch?" What do you say to those still doubting Brett Kavanaugh tonight after this incredible speech that he gave in the President's introduction?

LEO: Laura, you've known him a long time and as you know, he's dedicated his entire life to defending the constitution and the rule of law. And he understand what makes a judge most fair is the idea that you interpret the law as it's written and you enforce and respect and enforce the limits on government power continuing the constitution and that what it's all about. He said that tonight I think, right?

INGRAHAM: Yes he did and stay right there because we're going to stay with Leonard for most of the show tonight. Brit I have to go to you. You've been standing here where I'm standing so many years during so many of these pitch battles for Supreme Court nominations. What is you sense after hearing Judge Kavanaugh speak tonight and yet the resistance out there from so many Senators whom on the left said, "We're not going to support anyone that the President nominates" Your reaction tonight Brit?

BRIT HUME, FOX NEWS SENIOR POLITCAL ANALYST: I think Judge Kavanaugh gave a perfectly fine account of himself tonight. He seems to have an attractive family and he seems to be a nice young man, he seems young to me anyway, 53 is young to me at this stage in my life Laura. But I'm bound to tell you after the announcement I went and watched some of the reaction on competing channels and I must tell you that it's already starting. He has rendered a number of decisions, for example reigning in the administrative state here in Washington.

And he will be portrayed Laura, I can tell you without any fear of contradiction, as an enemy of the environment, as a defender of the big interests against the little guy and so on down the line. It's a litany that you've heard before and we're going to hear it again. It will get very loud, it will probably be almost 100 percent humbug but it's going to be out there and all I can say he needs to be well prepared to defend himself in the hearings. And the White House and those supporting this nomination better be prepared to rebut the allegations because they're going to be thick and fast.

INGRAHAM: Judge Starr you've been in the thick of it yourself with the left opposing any sense that you might ultimately rise to the court at one point during your career. They painted you as a guy, you couldn't be trusted with the sacrosanct rights to abortion in the constitution and all these other social issues. You've seen it close up what this city is like to dedicated professionals who are dedicated to the rule of law, the constitution and textualism, originalism as a jurisprudential outlook. You're reaction to Brett, whom you know very well who worked for you in independent counsel.

KEN STARR, FORMER US CIRCUIT JUDGE: And we practiced law together.

INGRAHAM: Of course, at Kirkland and Ellis.

STARR: Thank you and Brett Kavanaugh is the real thing. I predict that he will be confirmed. It's going to be, I guess, easy for some people to vote against him but he's going to ware well, he's the real thing. He is the goodness of kindness and spirit that we saw tonight in the statement. What we heard tonight really came from Brett's heart and I've known him since he was coming off the Justice Kennedy clerkship. And what you see with Brett is what you get. He's going to be extremely winsome.

But substantively, I think we're going to have a different conversation, we're going to have the political conversation that's unfolding as Brit just said. But I think it's going to be a deeper conversation, I hope there will be. Maybe not on Capitol Hill but there's going to be in the country and it began tonight. What do we want the Supreme Court to be? And what do we want the Supreme Court Justice to be? We can use shorthand terms and they're helpful, originalism and textualism.

I would also say, do we want restore the traditions of the Holmes's and the Brandeis', the Frankfurter's? Byron White appointed by President Kennedy who believed fervently in ‘We the people' and the ability of ‘We the people' to govern ourselves as opposed to government by platonic guardians, including a five to four majority. It's the right of ‘We the people' to govern ourselves. Judge Kavanaugh has the advantage, in addition to being just so steeped in those first principles, to also understand what we have been talking about and that is the administrative state and the need for accountability and he's been a very powerful voice for that fundamental principle.

INGRAHAM: Justin you clerked both for Anthony Kennedy and for Judge Kavanaugh. Justice Kennedy has hired seven of Judge Kavanaugh's clerks over the years, meaning Justice Kennedy puts Judge Kavanaugh in high regard, very high regard. You're one of the clerks of course, and again going back to the Conservative who were going nuts over the past 72 hours, "He's another David Hackett Souter" I kept saying, "You guys are shooting yourselves in your own foot" What can you tell our viewers at Fox tonight about their relationship, Anthony Kennedy and Judge Kavanaugh's relationship, and does that extend to their jurisprudential outlook on some of these more hot button cases.

JUSTIN WALKER: Thanks Laura. They both absolutely revere the constitution and I just can't imagine how proud Justice Kennedy must be that his successor will be, not just be one of his former clerks, but a former clerk who Juice Kennedy talked about in chambers all the time. He would point at the chair where Judge Kavanaugh sat when Judge Kavanaugh was a clerk and he called him Brett, ‘Brett, he was always there in the morning when I came and he was always there at night when I left. I would say Brett go home you work too hard, but he would never go home". He just absolutely is probably bursting with pride right now at Judge Kavanaugh's nomination.

And, you know, I guess I also think America is going to fall in love with Judge Kavanaugh and I think there are going to some senators who will find it very difficult to vote against such a family man, such a patriot and someone who was just spent the last twelve years in the second highest court writing 300 opinions. That's 300 times out of 300 times adhered to the constitution, adhered to text and approached every matter in a partial, fair and independent way.

INGRAHAM: Brit you alluded to the caustic nature of this nomination process earlier on. I want to play for all of you, part of what Mitch McConnell said today on the senate floor about how the sky is always falling when a Republican nominates someone to the court. Let's watch.


SEN. MICTH MCCONNELL, R-KY., SENATE MAJORITY LEADER: We're looking at the destruction of the constitution of the United States as far as I can tell. It's hard to keep a straight face when you hear stuff like that. Please, give the American people some credit. Decade after decade, nominee after nominee, the far left script hardly changes at all. And you wonder why everyone a Republican President nominates to the Supreme Court is some kind of threat to the public.


INGRAHAM: Brit that was about as animated as you and I have ever seen Senator McConnell, he was trying to crack jokes. But as great of a speech as Judge Kavanaugh gave tonight, coaching CYO basketball and the story about how his parents are incredible people. The left doesn't are about any of that. This is about abortion and gay marriage, correct? That's it.

HUME: It is about those kind of issues and abortion in particular, and Laura it gives you a sense of what this issue and it's seizure by the Supreme Court back in 1973 has done to our politics and has done to our judicial system. This is an issue I think it's reasonable to argue, should have been settled by the legislative processes and let the people decide what the law and that ought to be. And the Supreme Court devised a right that no one had previously detected in the constitution for that and we've been fighting this battle ever since.

Far from settling the issue, it has animated and some might say poisoned our politics to a great extent ever since. And here we are again, and once again that issue comes to the fore, it is the enduring political and moral issue of our time and one which the courts had far more to do with than they probably should have. And that is the approach that judges like Brett Kavanaugh and others on this list would have stood against and that is why the Democrats and their allies are so opposed to such nominees.

Because they are accustomed now to winning these victories on social policies and other issues by judicial fiat. Because they are not able to win them in the legislative process. And that is why there is much at stake in the nomination like this, which tips the balance of the Supreme Court. This may be, as Judge Starr suggests, an edifying process in which a deeper debate will occur, I certainly hope so. But I'm just a political reporter and I'm looking at what I see out there and it looks pretty rough to me.

INGRAHAM: Leonard Chuck Schumer was on the Senate floor today and it was like dueling speeches. We may have some of that sound, do we have some of that sounds guys? We'll get to it later. He was basically was up there, Brit was right, hitting the gong how this is an alarm bell for the left and for the Democrats that this do or die, you got to stop this. My question though is if Brett Kavanaugh is solidly Conservative, he's maybe not Scalia, a full on textualist but if he's solidly Conservative, replacing someone who's judicially Conservative I'm saying, is it that big of a swing as the left is saying, "This is a swing justice" Is it really, given especially last year's opinions of this court where Anthony Kennedy was with the five-four majority on every opinion of great consequence?

LEO: That's a really good point Laura. You're going to see a lot of scare tactics, let's face it, Judge Kennedy was not really a moderate or a Liberal, he was for the most part, a Conservative Justice. Especially on issues like separation of powers, federalism, areas of religious freedom, free exercise in particular. We saw the last term he voted with the Conservative majority of the court 75 percent of the time. So this is hyped up, this is really hyped up. And of course we know why, because the left wants have a court that is outcome based, they want to make sure they get results from the court that they know they can't get through the political process.

INGRAHAM: And Judge Starr, I think that's hits the nail on the head does it not? We now have a federal court system that is doing the difficult and the ugly job of legislating from the bench on issue upon issue. Barack Obama had a profound effect, Justin you know this as well, had a profound effect on our judiciary with the nominations he got through, even with some of the delays in the last few years. He transformed the Fourth Circuit Court of Appeals, as you know well Judge Starr sits down in Richmond, he transformed that court with his nomination.

STARR: And Laura, this was not in fact what the founding generation intended. When we go back to the Alexander Hamilton of Broadway Fame and if we read his federal of '78 and what he said so eloquently. And he said it in about four pages and every school child in America child read it and now every grown up should, that this the judiciary is the least dangerous branch. Why is the least dangerous branch? Because it's not going to be imposing its will on the American people, it's simply going to be exercising judgement.

So that's what I call the grand tradition in American constitutional law. The John Marshall's, the great chief justice all the way through so many justices who are revered even to a great extent by the left like Louis Brandeis and Benjamin Cardoso. They would not in fact countenance first of all the scare tactics for one thing, this is really beyond the pale. But also just the jurisprudential approach that we really just care about results.

We're here to make what we believe to be the most humane and compassionate public policy, that's what we're here to do. No that's not what we're here to do, when I say we, I'm talking about the courts of the land. You're rather to be stewards of the law, and to take the text, we keep talking about the text. The text is so terribly important, mediate on that text but don't just make it up and that is the great divide that is going to, I think, divide the United States senate.

INGRAHAM: And Justin again, former clerk for both Justice Kennedy and Judge Kavanaugh. I know you were smiling tonight when Judge Kavanaugh said this, alluding to what Judge Starr just said about reverence for the constitution, let's watch.


BRETT KAVANAUGH, APPALLETE JUDGE: Tomorrow I begin meeting with members of the senate which plays in a central role of this process. I will tell each senator that I revere the constitution. I believe that an independent judiciary is the crown jewel of our constitutional republic. If confirmed by the senate, I will keep an open mind in every case and I will always strive to preserve the constitution of the United States and the American rule of law.


INGRAHAM: Justin for all the suspicious Conservatives out there who remember David Hackett Souter who has trotted around the senate, met all these senators back in the day and he turned out to be a judge, very nice man but who ultimately evolved to a much more judiciary Liberal point of reference regarding the constitution. Is Judge Kavanaugh the type of judge who would evolve, again for all those critics out there on the right and there shouldn't be really any left, but who would evolve to a more Liberal block on this court? What can you say to them tonight?

WALKER: I would point out first if all that when I took Judge Kavanaugh's class as a second year law student the very first thing he assigned in the constitutional law class to read the constitution. And this was a really surprising assignment in some law schools, because as you know you read case after case and sometimes you take a whole constitutional law class without reading the constitution. I think that left, right and center, anybody who comes at this question with an open mind is just going to find a judge who spent 12 years adhering to the structure and the history and the meaning and the text of the constitution and doing so in such a fare minded way.

You know, he mentioned in his speech that the dean who hired him was now Justice Keagan. Justice Keagan, Justice Sotomayor, Justice Breyer, three left of center justices, they'll all hired former clerks of Judge Kavanaugh. And that's because left, right and center, Judge Kavanaugh is so easy to respect and admire.

INGRAHAM: All right well given this historic night tonight, we appreciate all of your input. Leonard Leo is actually going to stay with us throughout the entire hour. The rest of you gentlemen, thank you so much. Critical analysis from all of you and it's barely been an hour since President Trump announced his Supreme Court nominee. But left reference is already in full resistance mode just a few miles from here at the Supreme Court. Should I walk down there, maybe hang out with for a while, Leonard what do you think? We're going to take you there, I'm not going but we'll be there next.

If you're just joining us, President Trump earlier tonight named his Conservative Brett Kavanaugh as his nominee to replace the retiring Justice Anthony Kennedy on the Supreme Court. Chief White House Correspondent John Roberts joins us now to explain why the President went with the 53 year old judge from the DC Court of Appeals. I feel like I'm intruding on your space here at the White House.


INGRAHAM: I feel like it's the super bowl for me tonight, I'm so excited. It's great, so much fun.

ROBERTS: It's the super bowl for a lot of people. I learned why there was so much contradicting information and this why because everybody I would talk to today would say, "Well I think this" And someone else would say, "No, it's exactly the opposite" And Hartmann's people were saying, "It's Hartmann" The reason is because the President didn't make the decision until late last night. He called Kavanaugh to tell him that he was the pick. He then called Don McGinn the White House Counsel. He called the Vice President but he told three other people that they were on the list and because the decision was so late, the White House had to prepare four background packages, even asking each one of the nominees who they would put on their guest list, if they were chosen. So all of this information was--

INGRAHAM: How depressing. If you were one of the other people and you have your guest list, that's kind of sad, I feel bad for them.

ROBERTS: All of this information was out there and so people who were supporting the individual candidates said, "Well we we've been asked for a guest list so that must mean that our person is the candidate" But when it came to down to it he went with Brett Kavanaugh who the President said all along was the front runner. I guess he's the one who he believes he can get nominated, not nominated but confirmed through the process by the first of October. And Leonard will tell you, they think that that's a really important date because if they can't get a done by then, then it might get kicked to after the election. And what Democrat is going to allow a nomination to come to the floor before a new senate is seated.

INGRAHAM: John I heard in the recent days that there had been some resistance to Kavanaugh building up inside the White House and I've been getting texts and emails from people saying, "What are you hearing?" Because it seems like there's some criticism of Kavanaugh's record, even that Mitch McConnell was concerned because Kavanaugh had worked with Judge Starr who just joined us in the previous segment, and is part of the Independent Counsel in White Water. But that was going to be difficult, also because he was staff secretary to Bush 43 who didn't even support President Trump. I mean I think I've got to say it's to President Trump's credit that that didn't dissuade him. That didn't dissuade him, he sat right outside the oval office for Bush 43 for what, five years, six years?

ROBERTS: And here's the tough thing about doing television with Laura because she knows far more than I do.

INGRAHAM: I'm sorry, I was just awful to speak, I'm interrupting you.

ROBERTS: You know far more about this than I do. But I do know there was some resistance among, not necessarily in the White House, but among some people. Particularly the 2011 Obamacare decision. Where he ruled in his opinion that the individual mandate was a tax as opposed to a penalty. And He said, "Well we don't have the jurisdiction to hear this case because the tax doesn't kick in till 2015, it's now 2011, got to wait until you pay the tax and then it can come into work.

INGRAHAM: The problem he has to deal with the Supreme Court precedent or whatever so, he's a circuit judge so he can't like overturn to the Supreme Court.

ROBERTS: And he was a firm believer in stare decisis as well unlike Judge Amy Coney Barrett who has written it. But she might be the next Supreme Court pick, for the record. And then there was this idea that he was very tight with the Bush's. He met his wife Ashley in 2001 and talked about that day because I was here at the White House when we were all told to evacuate the White House because they thought there was a plane that was coming in here. It was the Flight 93 that went into the ground in Pennsylvania and people just thought that maybe he was a little too tight with the Bush administration for this President's liking. So for the fact that actually nominated him and put him out there with such conviction as he did tonight really was I think quite extraordinary.

INGRAHAM: Oh this is going to be wild. This is going to be a fun several weeks. John Roberts, thank you so much. Great to be in your territory here.

ROBERTS: Great to see you Laura.

INGRAHAM: And John as everyone is alluding to tonight, the left is in full resistance mode over Judge Kavanaugh. Left wing agitators and politicians began protesting his nomination in front of the Supreme Court, almost as soon as President Trump made the announcement.


UNIDENTIFIED FEMALE: We make insure that we defeat Brett Kavanaugh. All our rights are at stake.

UNIDENTIFIED FEMALE: He is a dangerous man who will endanger our fundamental freedom.

UNIDENTIFIED FEMALE: This just must not become the next justice on the Supreme Court. And what that will take is all of us fighting as hard and as long as we can.

UNIDENTIFIED FEMALE: We won't stand for any nominee. No Brett Kavanaugh who wants to take away our constitutional rights.

UNIDENTIFIED MALE: Hell no on Kavanaugh. Hell no on Kavanaugh.


INGRAHAM: They must have had a lot of different signs, ‘Hell no Coney Barret', ‘Hell no Hartmann' But they had to put up the Kavanaugh sign. Well a left wing Centre for American Progress put together tonight's protest. Joining me now for reaction Chris Hahn, former advisor for Senate Minority leader Chuck Schumer, Harmeet Dhillon the DNC Committeewoman in California and Mathew Lembke, an attorney in Alabama who previously clerked for Justice Kennedy has been following this very closely. It's great to have all of you tonight.

Matt let's start with you, Justice Kennedy for whom you clerked, I'm wondering what he's thinking tonight. He's probably over the moon but that association with both Justice Kennedy and the Bush's did give a lot of Conservatives, before we get into the resistance, pause about Judge Kavanaugh, whether he'd be the right type of justice, whether he'd evolve in the role. Matt you know Brett and you know Justice Kennedy, what are your thoughts tonight after watching this all unfold?

MATTHEW LEMBKE, PARTNER AT BRADLEY LAW FIRM: Well I think it's a great night for Justice Kennedy. He's got to be immensely proud that his law clerk has been nominated on the court. It will be his second judge on the court if Judge Kavanaugh is confirmed as of course Judge Gorsuch, now Justice Gorsuch also clerked for Justice Kennedy. But I think in terms of the Conservative concerns look, there's a 12 year record of 300 decisions by Judge Kavanaugh that show that he is a principled Conservative who believes in judicial restraint and believes that he's not the 101st senator, some super legislator.

But instead he's there to interpret the law. President Trump had four great candidates. I think any one of them would have made a terrific nominee and people had their favorites. But now I think all Conservatives will rally around Judge Kavanaugh because he really is a principled Conservative that we can count on.

INGRAHAM: Well except the protesters and Chris, that's your party there outside the courts, they are kind of straggling around now but they had all their pre-printed signs up. You have the Nayryl people, you have the Planned Parenthood people, you had Centre for American Progress. I didn't find that display tonight, I'm putting myself as an outside observer which is hard given my background clerking on the court and so forth. None of that seemed attractive to me. It seemed in poor form and it seemed like doesn't matter who the President nominates, he could have nominated Merrick Garland, they'd probably would have had a ‘Resist Garland' sign up there. You reaction to what's unfolded at the court.

CHRIS HAHN, FORMER ADVISOR TO SENATOR CHUCK SCHUMER: No if he would have nominated Garland I'd be here talking about how great a President Donald Trump was but no without shock at the development but--

INGRAHAM: Maybe you but not this crowd.

HAHN: But I will say this, look Merrick Garland, it all comes back to it. That is what set this up right? So the left wing of the Democratic Party and the Democratic Party as a whole has no choice but to resist this nominee regardless of his qualifications, regardless of his background because they feel like they're nominee was stolen by Mitch McConnell two years ago. And as a result we are in for probably the super bowl of all super bowls of battles in Congress over the next couple of weeks.

And I think October 1 is a very aggressive deadline, especially given the fact that he has 300 decisions that people are going to have to wade through and understand. He's going to get a lot of questions on those.

I remember I heard Mr. Leo talk about the Federalist papers. My favorite Federalist paper is Federalist 51, ambition must counteract ambition. And Congress has lacked ambition to counteract this president and check it. So the court is probably the last resort here. So Democrats have to take that into account when they look into his background.

INGRAHAM: Harmeet, Bernie Sanders was out there in full resistance mode after Judge Kavanaugh's announcement tonight by the president, but Bernie was all hot and bothered. Let's watch.


SEN. BERNIE SANDERS, I-VT.: What we are talking about here is in a moment in American history where we have rightwing extremists controlling the House, the Senate, and the White House. If we appoint another right- wing extremist to the Supreme Court, I have very serious concerns about justice in this country and what will happen to the men, women, and children, and the future of our nation.


INGRAHAM: Harmeet, I think the left is going to try to use this to whip up votes in the fall on the midterm election cycle. That's why they want to put this off if they can until after the midterms. I think they're not going to be able to do that. But your reaction? Bernie Sanders is still very popular, fills stadiums, unlike other people who wanted to be president. Your reaction to his comments tonight before the court announcement?

HARMEET DHILLON, ATTORNEY: Well, I think it's ironic that this whole thing has occurred because Hillary Clinton rigged the whole Democratic process so that Bernie Sanders couldn't get traction in it, and now here we are. Conservatives are very grateful that Donald Trump is now making this second terrific pick.

But the reality, Laura, is no matter who had been picked, and remember in the Gorsuch situation, Democrats had they blank signs, and they actually took markers there and they filled in the blanks as to who was the person they are going to be protesting. I'm sure that was happening today as well in D.C. It doesn't matter who it is. It doesn't matter who it was. It could've been anyone on that list of 25 or even any conservative, and the same hysterical reaction would've been there. It's an hour later, not even an hour later, and blood is already running in the streets according to these people.

But remember that the same crowd, NARAL, NOW, People for the America Way, they said Justice Souter was going to overturn Roe v Wade. We have been hearing this. It's not down to Merrick Garland. You've been hearing this hysteria over reaction dating back to Bork and before. And each time they got it wrong, and it is the boy who called wolf. Nobody is taking these people seriously today.

INGRAHAM: Hold on, Chris. Matt, we have about 15 seconds. Matt, if there's one thing Brett Kavanaugh could do to sway a Collins or a Murkowski, do you think they're going to be a problem in this ultimately?

MATT LEMBKE, PARTNER, BRADLEY LAW FIRM: I think he's going to emphasize the importance of stare decisis, the idea that courts should be very hesitant to overturn precedent. And he's going to think about --

INGRAHAM: Independent.

LEMBKE: That's right, an independent judiciary.

INGRAHAM: All right, we are out of time. We'll be right back. Stay there.



BRETT KAVANAUGH, SUPREME COURT JUSTICE NOMINEE: My mom was a trailblazer. When I was 10, she went to law school and became a prosecutor. My introduction to law came at the dinner table when she practiced her closing arguments. Her trademark line was use your common sense, what rings true, what rings false. That's good advice for a juror and for a son.


INGRAHAM: Judge Kavanaugh seems like, I don't know, an obvious win for Republicans. A few people are grousing on the other network tonight. We'll talk about that in a moment. He has proven record, though, of protecting the Constitution and has not been afraid to court controversy. But how is this nomination going to play or politically? Should Republicans rush to confirm him or should they use this opportunity to motivate voters in the midterm elections? Interesting theory there.

Joining me to discuss, our esteemed pollsters Frank Luntz, Mark Penn, also we continue with Leonard Leo, the president's outside advisor on judicial nominees who's been with the president and inside the White House on this from the very beginning. It's great to have all of you on.

Leonard, we were just talking about this issue of Murkowski and Collins, two Republican senators who are pro-choice and who the left had been courting to oppose this nominee. Can our viewers at FOX tonight assume that they have been consulted on this nomination? Or is the president confident that in the end they will vote to confirm Judge Kavanaugh?

LEONARD LEO, EXECUTIVE DIRECTOR, THE FEDERALIST SOCIETY: The president I know spoke with Senator Collins. And Senator Collins made it clear what the road map is for confirmation. She said she wanted a judge who was going to adhere to the constitution and the laws, and she wanted someone who was going to respect major precedents of the court. If you look at Brett Kavanaugh's record, that's what you get. You get someone who struggles in grapples with precedent. He knows it's important and you've got to figure it out. And he adheres to the constitution and the laws. So we'll see what happens, but she has certainly given herself and other moderates in the Senate some space.

INGRAHAM: Frank Luntz, you have an interesting theory about whether this vote to confirm this nominee is best rushed before the beginning of the court determined early October or held until after the midterm election cycle. When I first heard it, I was like, has Frank lost his mind? What is he talking about? But explain this, because it got more interesting as I thought about it as the day went on.

FRANK LUNTZ, POLLSTER: I think Chuck Schumer is right. I in fact hope that the Republicans follow his advice. Two reasons. First is that we need a conversation about the Constitution, right now in 2018. And the longer we have this conversation, I think the better conservatives are going to do, because in the end when you talk about freedom of speech, the press, religion, when you talk about the Bill of Rights and the 10 Amendments, I think that the longer the conversation goes, the better conservatives do. We want to educate the American people on why that document is so important.

And second, conservatives are much more focused on the Supreme Court then liberals are. Conservatives are more likely to get out and vote. This is the only issue that galvanizes Republicans to participate in this midterm election. So yes, Senator Schumer, I do hope you get that extended period to have this conversation. It will elect at least two more Republican senators. It may even save the Republicans in the House because every conservative will vote to ensure that this man, a strict supporter of the constitution, becomes the next Supreme Court justice. It is that significant in the American political process.

INGRAHAM: Interesting. Mark Penn, the poll with hart about last week, I thought it was interesting about whether we whether the confirmation vote should take place before the midterms or after. And 62 percent according to the NBC poll said it should occur before the November elections, which I think it probably freaked out Chuck Schumer and company. But most people said before, not after. What about your pal Frank's idea here? Obviously that's from the Republican perspective. I think it's interesting but I am someone who is a bird in the hand. Get this done, get him in. I get paranoid about waiting too long on these things, although I think it's an interesting idea.

MARK PENN, POLLSTER: I always had a philosophy about nominations and endorsements. Get them done as quickly as possible because you never know what tomorrow brings. I think Frank's strategy would be a huge gift to Democrats. Thank you, Frank. The longer this thing plays out the more actually I think the Democratic base would be energized and the more the base would turn out because then they could actually affect the choice through the election.

Right now we can protest but we ain't going to do anything about this nomination in particular unless something significant is found in his record, which has not happened with Neil Gorsuch. And so I think the longer this plays out, the more it plays actually to the Democratic advantage. Two-thirds of the people in this country would not overturn Roe versus Wade even though abortion itself is a closely split issue. And second trimester and third trimester abortions most people want only under limited circumstances. They do not want to overturn and reopen social wounds in this country, and they think that any nominee that would do that will probably take the country in the wrong direction. And the more this reopens the wounds, the election, it makes for a more divisive society.

INGRAHAM: I think, though, here's the problem. Hold on, here's the problem with that. The problem with that is you have someone like Brett Kavanaugh who -- listen to his speech tonight, how he spoke, how he spoke with not only reverence about the Constitution but with the process. Looking forward to meeting with senators, being an independent jurist. I think most fair-minded people, not the agitators over at the courts tonight, Mark, but most Americans watching him tonight, they see even a snippet of that, they are going to think he's not a fire-breathing dragon. He's not going to rip up the Constitution and put women in jail. That doesn't strike most people.

And so I think that image tonight at the courts hurts the Democrats morning, noon, and nights. I don't like that's attractive. I don't think those women out there tonight helped the Democrats at all. But Frank, your thoughts about what we heard tonight. And apparently on another network tonight, CNN, Rick Santorum was criticizing Brett Kavanaugh, criticizing him. What is that all about?

LUNTZ: This country, this country needs civics. It's not taught in high schools. It's not taught in colleges. We need our next generation to understand the importance of the Constitution and how this government operates. And the longer that we have this discussion, it may not be about politics, but it absolutely is about the next generation, and to understand where they Constitution matters, the Bill of Rights matter, and that we should not be politicizing everything.

These protesters and the extremism that's being articulated is one of the things that's driving this country apart. And it's driving people insane. I love the fact that this president made this very calm, very conscientious choice, that he chose someone who is committed to the constitution. And I think that the longer we have this conversation, the better it's going to be for America in the long run.

INGRAHAM: Leonard Leo, that's a risky idea of putting up a confirmation vote. I get what Frank is saying and I think that's one of the main reasons people wanted Donald Trump -- for a lot of reasons -- immigration, trade. But this court became a really big issue in the presidential election, the Supreme Court. Huge. Would you be in favor of letting this thing play out longer than the beginning of the new term at the courts? Or do you agree with Mark Penn that that would be a gift to the Democrats?

LEO: I think the faster you can get it done, the better. The president made this a defining issue in the presidential campaign. He rallied a lot of voters around it. He won in part because of it. He continued that momentum by nominating Neil Gorsuch. This is a train that has moved with great pace over the past couple of years and I think that pace should continue.

INGRAHAM: What about Santorum hitting Brett tonight, Kavanaugh? What's that all about? Hugh Hewitt, I'm sorry, Hugh Hewitt, when was the last time he was right about a major political issue? No offense. I like him as a person.

LEO: Anyone who's read Brett Kavanaugh's nearly 300 opinions knows what he stands for. A lot of these folks are probably saying, gee, he didn't come out in the health care case the way we wanted. But the fact of the matter is he had a prior precedent he followed. I think it's just a red herring.

INGRAHAM: Stay there. Leonard is going to stay with us to discuss the suggestion that the president could get yet another Supreme Court vacancy. We're really getting ahead of ourselves. And Raymond Arroyo exposes the theater of Supreme Court confirmations. Stay there.


INGRAHAM: All right, I am so excited. This has been such an incredible night. And when it comes to potential Supreme Court nominees, no one has the president's ear more than his adviser for judicial nominations Leonard Leo, who is now himself under fire. That's the way it goes. You step in the flames, you're going to get some heat. Leonard is back with us.

Leonard, the left is so brutal. Anyone who has had with his president on pretty much any issue has become a target. You are now a target, and Chuck Schumer addressed this today on the Senate floor. Let's watch.


SEN. CHUCK SCHUMER, D-N.Y., SENATE MINORITY LEADER: No one has been more dedicated to the enterprise of building a Supreme Court that will overturn Roe v Wade then the Federalist Society's Leonard Leo, the very man who chose the list of 25. That's what we are up against here. And that's why America is on tenterhooks.


INGRAHAM: When he does this, he is really serious. When he goes, no one. I have known you, Leonard, for a couple decades at least and you don't strike me as this scary dude who is going to shred the Constitution and put people, put constitutional rights in the dumpster. But you have now become part of the story, and how does that feel? You are a mild-mannered guy who cares about the rule of law. A lot of people say why doesn't Leonard go on the court? And you're like I don't want any part of that. But how did that feel today?

LEO: This is actually really insulting and offensive to the president. He made the Supreme Court a defining issue in this election. He took ownership of the list. The list was his idea, his idea.

INGRAHAM: A great idea, by the way.

LEO: It propelled him to victory, it helped to hold the Senate. As I said before he continued that momentum with Neil Gorsuch. He has been in the driver's seat this entire process. This is not outsourced. This is the president. And he owns this process.

Senator Schumer, he is just hysterical, and they are going to be hysterical through this process. And that's just what we are going to have to deal with. But you know what, the American people are going to see through it because they love the Constitution. They love the constitution.

INGRAHAM: But they say you guys, you Republicans, didn't give Barack Obama Merrick Garland. Of course, Senator McConnell blocked that nomination from going forward, didn't even get a vote on him. They think now it's payback time.

LEO: Well, if the American people didn't like it, they didn't have to elect Donald Trump. But guess what, they did. And the America people gave us Neil Gorsuch.

INGRAHAM: My sources are saying that the president was extremely hands-on in the process and was doing his own due diligence. He was calling people. He was cross-referencing claims about certain nominees. He liked all of the, all four, all of them very much. Is that accurate?

LEO: It's true. It is.

INGRAHAM: As people, his one-on-one relationship with them?

LEO: Laura, he was as transparent and engaged and intense as any president.

INGRAHAM: Brett said that. Brett said that tonight.

LEO: -- any president in modern history. He met at length with these nominees, these prospective nominees. He asked questions. He talked Democrats and Republicans. He was on the golf course over the weekend on the phone half the time talking to people about this process. I have never seen anything like it.

And the Democrats are complaining that it's a corrupt, secret game. Of course not. This president has been out there working hard on this for a long time.

INGRAHAM: What do you say to these never-Trumpers out there? I'm sorry to have to bring them up. But people who say the Democrats should take over in November because this president, this is not a true Republican president. They're out there, George Will, Max Boot, others who sometimes appear on our own network as well. They're a lot of good people, but they are just adamant to block him, supposed Republicans adamant to block this president.

LEO: The Supreme Court and the Constitution has always been at the center of conservative and GOP agenda, and I hope through this process as Brett Kavanaugh unfolds what he believes in, that some of those people will begin to realize that this president has played an incredibly transformative, multigenerational role in helping to restore the Constitution and the rule of law.

INGRAHAM: Not going to be a Souter, right Leonard?

LEO: No. That's absurd.

INGRAHAM: Leonard Leo, thank you so much for spending so much time. Come back anytime. We will do a dramatic number, maybe a duet.


INGRAHAM: And up next, the most dramatic moments in Supreme Court confirmation hearing history. I'm going to love this segment. Raymond Arroyo is going to break down the theater of the confirmation process. Stay there.


INGRAHAM: You all know Supreme Court confirmation hearings have produced some of the most dramatic moments in Senate history and could contain some lessons for Judge Kavanaugh. Joining us now from New Orleans to discuss the theater of the confirmation process, bestselling author, FOX News contributor Raymond Arroyo. Raymond, I know you spent the day watching old SCOTUS confirmation hearings of the past. So which do you think Kavanaugh could most benefit from?

RAYMOND ARROYO, FOX NEWS CONTRIBUTOR: I did, indeed, Laura. And I pulled some because as I looked at the nominee, this is a man, as you've been mentioning, 13 years on the federal bench. But what many people forget, he was part of the Whitewater investigation. He wrote the Starr report which had the articles of impeachment or at least suggested impeachment of President Clinton. He then worked for the Bush administration.

I expect, and as I watched these hearings, it put me in mind of Ted Kennedy who in 1987 dredged up Robert Bork's past history, his political history, working for Richard Nixon. Here's what he said.


TED KENNEDY, FORMER U.S. SENATOR: The man who fired Archibald Cox does not deserve to sit on the Supreme Court of the United States.

Robert Bork's America is a land in which women would be forced into back alley abortions, blacks would sit at segregated lunch counters, rogue police could break down citizens' doors in midnight raids, and schoolchildren could not be taught about evolution. Writers and artists would be censored at the whim of government.


ARROYO: Laura, I think we are going to hear that type of language, that dystopian nightmare will be painted again. The black alley abortions, all that dark vision, they are going to try to paint Kavanaugh with that same brush. It worked in the case of Judge Bork because he was very defensive. We can't play all of the hearing, but he was very defensive and sharp and didn't quite know how to fight back and clear his name. That's something Kavanaugh should be wary of.

INGRAHAM: I remember. I was working at the White House when that went down, and I loved Judge Bork of course. But the charm factor wasn't on display during those hearings. And he kicked puppies too. I'm surprised Ted Kennedy didn't say that. Elena Kagan, by the way, let's remember Kagan, currently associate justice on the court. She had a very interesting way of dealing with tough questions. Watch this exchange from 2010.


SEN. LINDSEY GRAHAM, R-S.C.: Christmas Day bomber, where are you at on Christmas Day?

ELENA KAGAN, SUPREME COURT JUSTICE: I should ask exactly what you mean by that.

GRAHAM: I'm just asking where were you at on Christmas?


KAGAN: You know, like all Jews I was probably at a Chinese restaurant.



INGRAHAM: She was hilarious, I've got to say.

ARROYO: You'll remember that hearing was like stand-up comedy. But Brett Kavanaugh should watch something. He can take that light touch which we saw some of tonight when he was announced. He has that warmth. He needs to get in touch with his inner Jerry Seinfeld and have a good time.

But let me tell you the admissions we heard tonight that he was an altar boy, his Jesuit training, that may come back to haunt him because they are going to try to use the Catholic thing against Kavanaugh. Your boss, Clarence Thomas, had similar problems and that they brought -- they threw everything at Clarence Thomas including the kitchen sink. He decided to respond with righteous indignation. This is another way to go. Watch.


CLARENCE THOMAS, SUPREME COURT JUSTICE. This is a circus. This is a national disgrace. And from my standpoint as a black American, as far as I'm concerned, it is a high-tech lynching for uppity black who in any way deign to think for themselves, to do for themselves, to have different ideas. And it is the message that unless you kowtow to an old order, this is what will happen to you.


INGRAHAM: Never have truer words been spoken to my former boss, Clarence Thomas. Brilliant jurist, has had an amazing career on the court. The ultimate revenge is life tenure.

Raymond Arroyo, thank you.


INGRAHAM: In the last 81 years, only three other justices have held the seat. Hugo Black, Lewis Powell, and Anthony Kennedy. And I think I could take a pretty solid bet on this that Brett Kavanaugh will be confirmed by the U.S. Senate. But this fight ahead of us is going to be something. We'll be with you covering it every step of the way.

Goodnight from the White House. Shannon Bream is up next.

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