Sen. Lee: 'Not helpful' to challenge legitimacy of Supreme Court

This is a rush transcript from "The Story," October 8, 2018. This copy may not be in its final form and may be updated.

MATHA MACCALLUM, HOST: Applause all around. Very interesting speeches from the president and from Brett Kavanaugh, as there was a lot of palpable relief in that room for the people who were there. Obviously all gathered to congratulate the new justice, the new associate justice of the Supreme Court.

The president pointed out, there was an unprecedented nature to the beginning of his comments in this, where he spoke quite clearly about the process. He apologized to Brett Kavanaugh, and to his family for what he called the politics, the personal and political destruction that they went through.

And now you see President Trump leaving with Justice Anthony Kennedy now retired and replaced by Brett Kavanaugh.

He also said very clearly to everyone gathered there and at home, you were proven innocent under historic scrutiny, and then he addressed his daughters, Margaret and Liza, and said, "your father is a great man."

I'm joined once again by Bret Baier, host of Special Report. Bret, quite striking in the nature of these comments that we just saw.

BRET BAIER, FOX NEWS CHIEF ANCHOR: Martha, considering what the nation has just been through with this confirmation process, that really was quite striking.

The president making a point and I think that that is the seminal moment that you just pointed out, where he apologizes directly to Brett Kavanaugh saying, "you endured a campaign of personal and political destruction based on lies and deception," and then turning to his daughters saying he is a great man. And your father from the Supreme Court will defend the eternal rights of our nation."

He also made a point to single out Senate Majority Leader Mitch McConnell who received a standing ovation, the president joking probably the longest standing ovation he's ever received, but also pointing out that Maine Senator Susan Collins crediting her for what he said was a brave and eloquent speech on the Senate floor.

Obviously, politically this is a huge moment, Martha. And whether and how it affects the midterm elections coming up, I think we have yet to know. But 29 days, a lot can happen and both sides seem pretty fired up in the wake of this confirmation.

MACCALLUM: Yes, absolutely, Bret. And you know, when it was time for Brett Kavanaugh to make his comments, he said that he was grateful to the president for his steadfast and unwavering support.

And having watched politics, both of us, for a very long time, there were many junctures of this process where perhaps some people might have failed and might have given up on this process as it became more and more contentious.

The president did not and clearly, Brett Kavanaugh was grateful to him for that. He said that I will be part of a team of nine and I will be a team player. And he talked about how he is humbled and proud to sit in Justice Kennedy's seat. Clearly he is trying to put all this behind him, Bret, and move on with the work ahead.

BAIER: Yes. And it's important that all of the Supreme Court justices were there in the room, it's important to know that of appellate court justices around the country, he has been responsible for the majority of opinions that have then been used by that Supreme Court the most times of any single judge around the country.

Now he is a justice on that court. And he said he is a member of the team of nine and all of them he says respect the Constitution to the nth degree. It was kind of at times an emotional speech for Justice Kavanaugh now as we saw him get emotional in that confirmation hearing, and now the court goes on to some big cases on the docket already the session.

MACCALLUM: It certainly does. And he thanked his daughter's teachers, apparently they'll be in attendance tomorrow for his first two cases. They were adorable as they looked up at their dad and it's been no secret that the whole family has been through quite a bit in the weeks that we have watched this unfold.

Bret, thank you very much, great to be with you tonight.

BAIER: All right, Martha.

MACCALLUM: So that concludes our coverage of Brett Kavanaugh's swearing-in ceremony, the ceremonial version at the White House tonight led by President Trump. Our coverage continues here on the Fox News Channel.

Here now exclusively as a senator who was called out by name this evening as a big part of behind the scenes struggle to have this moment take place in the confirmation of Justice Kavanaugh, Utah Senator Mike Lee. He sits on the Senate judiciary committee and he is the author of the book "Written Out of History: The Forgotten Founder Who Fought Big Government."

Senator Lee, thank you very much. Good to have you with us here this evening.

SEN. MIKE LEE, R-UTAH: Good to be with you.

MACCALLUM: Your thoughts as you watch this incredible process that we all saw play out as it sort of has a bow tied on it, at least to some extent this evening?

LEE: It was an emotional moment coming at the conclusion of a very emotional process. And quite rewarding for me as a member of the judiciary committee, to see this come to fruition.

It's significant, Martha, that he will now be sitting here in cases tomorrow as a Supreme Court justice. There is an enormous amount of work that goes into that. But it was great to see the swearing-in ceremony to have his former boss, Justice Kennedy's swear him men. It was quite a capstone on the evening.

MACCALLUM: Indeed it was. And in fact it was pointed out that that was the first time that someone who clerked for a Supreme Court justice was then sworn in to sit on a court by that now retired justice. It was just a remarkable moment, and he really commended Justice Kennedy on the decisions that he had made while he was sitting on the bench and said, he greatly admired him, you know. But he also talked about putting behind all of this and trying to move on.

Clearly he'll do that tomorrow, Senator Lee, but on the outside of this Supreme Court, is this over?

LEE: Look, sooner or later people will realize that inside the Supreme Court it really is not a partisan environment. In fact, very, very few decisions are decided on a five to four basis. The most common configuration is nine to zero and there are a lot of cases that are decided either nice to zero, or eight to one or seven to two.

Most of them are not political charge in any way, and I think Justice Kavanaugh will be someone who contributes, build coalitions and will be greatly respected by his colleagues.

MACCALLUM: Yes. We have heard, though, from Senators Booker, and others that they question the legitimacy of the court at this point and that they would consider opening continuing investigations into Judge Kavanaugh and even sort of restructuring the makeup of the court. What do you say to that?

LEE: I'm not sure what good that does, I'm not sure that that is a good idea to be questioned the legitimacy of the court. I mean, look, you can look at the federal judiciary despite its flaws, despite the fact that from time to time it issues ruling that some of us might disagree with.

I'd hold our federal court system up against any of its kind in the world. And the same goes for the Supreme Court. And as lawyers and officers of the court and as U.S. senators, I don't think it's helpful for us to be challenging that. I think it's time to move forward and let the court do its work.

MACCALLUM: What did you think about what the president said at the beginning of all of this? He apologized to the family for the process and for everything that they went through which was a political and personal destruct -- personally destructive process as he described it. And he also said you were proven innocent under historic scrutiny. What did you think of that?

LEE: I think a lot of us sympathize with that expression, and look. The fact that you had a writer on a late night comedy show tweeting out and saying, you know, regardless of what else happened, I'm just glad we ruined his life.


LEE: That speaks volumes. I fear that that speaks volumes about many of those who were engaged in the politics of personal discussion. And I really dislike seeing that, it's not good for our political disclose in America. It certainly not productive as far as looking toward the kind of judiciary we have to have.

MACCALLUM: Judge Kavanaugh also said -- Justice Kavanaugh, excuse me, also said that he wanted to put this contentious process behind him with gratitude and no bitterness. It takes a big person to walk away from what he has been through and carry no bitterness for all of what we saw. His name dragged through the mud throughout this entire process.

LEE: It does take a big man. It takes a brave man. And I think in this instance, Justice Kavanaugh is driven by his faith as been apparent as he's gone through this very difficult period of time when he's undergone so much scrutiny.

I think his faith has driven him to that point where he can move forward with nothing but forgiveness in his heart and I think that speaks great things about him and portends well for what we can expect from him on the Supreme Court.

MACCALLUM: Do you think -- I know you were very close to Jeff Blake, and R, throughout this process you spoke with him quite a bit. Is he satisfied in his heart, is he at peace with his decision here?

LEE: Yes, I believe yes. Look, I'm always careful not to speak for any colleague. But it was evident to me that when he cast his vote and it was evident to me as we went through the evidence that he was convinced as I was, that this was someone who is qualified to serve on the Supreme Court in every way.

MACCALLUM: Senator Mike Lee, thank you very much. Good to have you with us tonight.

LEE: Thank you.

MACCALLUM: President Trump succeeds in getting a second conservative on the Supreme Court and we watch that moment unfold. Just a moments ago together, an accomplishment that even some of the most dug-in never Trumpers never admitted they like.

But does that change their opinion of the president? Here now, Quin Hillyer, conservative columnist and self-proclaim never-Trumper, Nathanael Blake, senior contributor to The Federalist and as a former never-Trumper as he describes it who now plans to support the president in 2020, and Charlie Hurt, opinion editor at the Washington Times and a Fox News contributor who's always been pretty supportive of the president, Juan Williams co-host of The Five and author of the new book, "What the Hell Do You Have to Lose" is not a big fan.

So good to have all of you with us. As we sort of take a look at this moment this evening. Quin, let me start with you because clearly putting conservatives on the Supreme Court is something that all conservatives wanted this president to do. So obviously you are behind that part of this, right?

QUIN HILLYER, CONSERVATIVE COLUMNIST: I'm absolutely thrilled. I mean, I've known Brett Kavanaugh since 21 years ago this month and I was at his Rose Garden swearing-in in 2006 when he got on the previous court. I think the president made a great pick in Brett Kavanaugh and I'm very excited to have him on the court.

MACCALLUM: but you're not -- it doesn't change your opinion of the man himself, the president himself?

HILLYER: No it doesn't. I knew going in that there would be his some things that the president does that I like, and this is the one that I expected to like the most and I'm very, very happy with this. But you know, I will take each issue as it comes, each case as it comes, and I'm still not sold on the president as a whole but he is a lot better than Hillary Clinton.

MACCALLUM: All right, got it. Nathanael Blake, you say that you have changed your opinion as you watched this president in action. Why?

NATHANAEL BLAKE, SENIOR CONTRIBUTOR, THE FEDERALIST: He has been better on policy than I expected. He has kept faith with his promises that he made to the conservative movement to appoint originalist justices to the Supreme Court and originalist judges to the lower federalist court. And he has not made the sort of catastrophic blunders that I thought he might.

MACCALLUM: You know, for all of the bombast, Charlie, you know, when you look at the agenda and the things that the president promised on the campaign trail, how would you say he has measured up, and do you think that other Republican presidents might not have stuck this process out with Brett Kavanaugh?

CHARLES HURT, FOX NEWS CONTRIBUTOR: I think without a doubt that a mere mortal Republican establishment president probably would have bailed very early on in this fight because it got so hot, it got so nasty. Bu you have this guy who is just used to fighting and of course it's the reason a lot of good conservatives don't like him. That happens to be the reason I did like him. He's a fighter and he doesn't back down.

And I think to me, the key moment in this whole sordid process was when Brett Kavanaugh went back before the committee and he told the committee, he said, look. I'm not going to quit, I will never back down. You are going to have to vote and kill my nomination but I'm never going away.

And when he did that I think that was a message to the president that he's going to stick with him and that they are going to go to the bitter end. And I think that it shows, because obviously a lot of conservatives were very concerned about the issue of Supreme Court nominations.

He has done something that very few politicians ever do in Washington and that is, he has stuck to his promises. Almost in a maniacal process where he sort of check things off. It's truly down to the point where, he works off of a list of nominees and, I would argue that in the past say, 50 years, there has not been a single president who has been -- who has put -- has a better record of putting a good conservative jurist on the Supreme Court.

MACCALLUM: Interesting. Juan, let me bring you in here. When I interviewed Brett Kavanaugh back on September 24th I asked him that do you think the president would stand by you and he did not hesitate, he said, absolutely. I spoke with him this morning as he is absolutely going to stand by me.

And you know, as we said there were a lot of junctures where some weaker people might have failed on this candidate when it looked pretty bad. What do you think as you watch this ceremonial swearing-in tonight, Juan?

JUAN WILLIAMS, FOX NEWS CO-HOST & POLITICAL ANALYST: Well, I think that we have sort of Republicans doing an end zone dance here, but I think that in terms of the court, I think the American people have less trust and integrity of the institution. I think Kavanaugh is seen as a rubber stamp for a conservative agenda.

And I think it comes to the idea of a structural strict originalist reading of the Constitution that is now being advanced by doctrinaire conservatives as opposed to saying that the Constitution is a living document.

And Kavanaugh steps in at a time when we have a controversial cases, Martha, dealing with abortion specifically and I think that is a key one. But also with things like voter suppression, and you have to stop and think about gun control, or something that Justice Scalia obviously was so central one, that's going to come back. On all of these issues now, you have a solid five-member majority, Republican appointed on the court.

MACCALLUM: But you never know, that's the point, you know. And he worked for Anthony Kennedy who was the famous swing vote on so many cases and you do have to wonder as you look at this. And Quin, maybe you can weigh in on this for us. You know, whether or not -- once you are through this process, you are on your own. And you are not going to be reappointed and nobody is going to, you know, weigh in politically on your decisions.

And he -- Susan Collins, when she gave that momentous speech she essentially said, he assured me that he will never overturn Roe v. Wade.

HILLYER: Well, I don't know what he will do in Roe v. Wade, but it's very clear to anybody who really watches that of Trump top 10 or 15 potential picks Kavanaugh was among the most institutionalist, the most moderate, if you will, moderate out of those 15. Now, those 15 very conservative justice -- or potential justices.

But he is still -- I mean if you look at his record, if you look at Shelby v. Holder, if you look at Hall v. Sebelius, he is an institutionalist like his former boss Kennedy and that's why that crazy reaction to him is if he is some kind of hard-line partisan right winger is wrong.

Look, when I was first dealing with him 21 years ago, he was going out of his way to actually defend, believe it or not, the Clintons on a couple of matters that I was talking to him about, and he was very fair-minded at the time, and his whole record as judge has been very fair-minded. He will make a very good justice.

WILLIAMS: I think he has a very fair record as a judge on the D.C. circuit. But Quin, I would point out to you, this is a man who was on Ken Starr's group going after the Clintons and with some fairly scurrilous sexual stuff.

And then going as a member of the Bush White House about these memos, and you know that Democratic senators thought some of those memos were stolen. The Democratic perception is that he is a political player.

HILLYER: No, but he was, and it's important that during both of those 10 years he was a lawyer working for a client.


HILLYER: And he was working very, very hard for his client and very successfully I might add. But that just to me accrues to making him an even better, wiser jurist.

MACCALLUM: Nathanael?

HILLYER: On the Ken Starr investigation, can I just say something really quick.


HILLYER: On the Ken Starr investigation, if you read a Bob Woodward's book, Bob Woodward resented him as the most thoughtful moderate fair-minded toward the Clintons of all the people in Starr's investigation. He was the one that said it is not our job to convict Bill Clinton, it's only our job to give facts to the Congress. That was very -- he was wise beyond his years and he was not a partisan attack dog.


MACCALLUM: I got to leave it there. Gentlemen, thank you very much. Good to have all of you with us tonight.

WILLIAMS: It's good to be with you, Martha.

MACCALLUM: So coming up, more reaction to the historic confirmation of Justice Brett Kavanaugh this evening with Guy Benson and Marie Harf.


BRETT KAVANAUGH, ASSOCIATE JUSTICE OF THE UNITED STATES SUPREME COURT: The Senate information process was contentious and emotional. That process is over. My focus now is to be the best justice I can be.




TRUMP: I want to apologize to Brett and the entire Kavanaugh family for the terrible pain and suffering you have been forced to endure. What happened to the Kavanaugh family, violates every notion of fairness, decency and due process. Our country, a man or a woman, must always be presumed innocent unless and until proven guilty.


MACCALLUM: President Trump just moments ago at Justice Kavanaugh's official swearing-in ceremony at the White House. His confirmation was a slow and some would say vicious process from both sides. There may still be more yet to come of the politics of all of this.

Join by hosts of "Benson and Harf" on Fox News radio, Fox News contributor, Guy Benson, and Fox News analyst, Marie Harf. Good to see both of you this n.


MACCALLUM: I thought it was an interesting moment in the ceremony that we saw tonight. He also said to Brett Kavanaugh, Marie, you were proven innocent under historic scrutiny.

MARIE HARF, FOX NEWS RADIO CO-HOST: Yes. I was a little uncomfortable with a lot of things the president said, unsurprisingly. This definitely felt like he was taking a victory lap. And some of the language he used like when he said exactly what you just referenced that Kavanaugh was proven innocent that technically isn't true. This was not a court of law.

And I do think that it was rich to hear someone like Donald Trump who at every campaign rally said lock her up and basically convicted Hillary Clinton to now care about due process.

But Martha, I also think that the Republicans have to be careful not to overplay their hand here. There are many people who were deeply offended by this process. And this did get pretty close to sort of an end zone dance. I'll be curious to see how people react to what they saw tonight.


BENSON: Well, look, I'm not sure about the president apologizing to Brett Kavanaugh for what he went through. I think the Senate Democrats owe Kavanaugh an apology for their disgraceful conduct over the course of this entire process.

Frankly, they should apologize to Dr. Ford. At least Dianne Feinstein should for whomever leaked out that information against her will. It was absolutely -- you used the word vicious, Martha. I will echo that. It was a seek and destroy mission from the very beginning, from the Senate Democrats. They were willing to do or say anything to stop this nomination from going through. And thank goodness they failed.

MACCALLUM: I want to talk about the vitriol that is now aimed at Susan Collins. And this is one of your former colleagues, Marie who spoke out about it on the Sunday shows. Watch this.


JEN PSAKI, FORMER WHITE HOUSE COMMUNICATIONS DIRECTOR: That's political cowardice. That is somebody who is pretending to be a feminist but that is fake feminism. And that's why I think that she is going to be defeated in 2020 if she decides to run again.


MACCALLUM: What did you think about that, Marie?

HARF: Yes, I agree with Jen, my former colleague. And I think it was interesting last night when Susan Collins did an interview where she said she believed that Dr. Ford had been assaulted but she thinks it was a case of a mistaken identity. That is like trying to have it both ways and that statistically and incredibly rare thing. It just doesn't happen.

And so for her to dismiss Dr. Ford that she just doesn't remember, I will say there were a lot f women I know, independent women, even some Republican women who watch Susan Collins seem to be ready to support Judge Kavanaugh no matter what came up to discard the concerns of so many of her Republican constituents. I do, Martha, I think she will face a serious challenge in 2020. I think senators like Dean Heller will also take--


MACCALLUM: I take -- I mean, I take umbrage that the notion of fake feminism.


MACCALLUM: This is a woman who is a senator in the United States Senate and she represents her state of Maine, she weighed all the evidence, all of the input as she saw it. So she is supposed to just because of her gender decide with the accuser and forget everything else that she has coming in to her in terms of information and input, Marie?

HARF: Well, look, I think what happened over the last week to many people looks like a Republican Party determined to get him confirmed no matter what anyone thought. No matter if the allegations were true or not.

And for a female senator, one of the few number on the Republican side to side with a group of male senators who said things like--


MACCALLUM: I don't -- honestly--

HARF: -- who made fun of--


MACCALLUM: Guy, let me bring you, Guy. No, I don't understand what her gender or anyone's for that matter has to do with how they saw the information that they took in.

BENSON: Right.

MACCALLUM: You don't just because you're a woman sign a document somewhere that says that you will bly every other piece of information that has come in to your brain and side with the person who is accusing simply because of your sex. Guy?

HARF: I expect women to take other women seriously and it doesn't think like she did here.

MACCALLUM: I think she -- I think she--


BENSON: She absolutely did.

MACCALLUM: Go ahead, Guy.

BENSON: She also did.

HARF: I don't think she did.

MACCALLUM: I think that's very unfair.

BENSON: She laid out a very adult reasoned to case for why she was an adult in the room in a chamber of a lot of non-adults--

HARF: Wow.

BENSON: -- she stood up and she weighed the evidence and she explained very explicitly how she reached her conclusion. And for some people to come after her as a fake feminist because she used her independent mind to come- -



BENSON: -- to come to her own independent conclusion I think it flies in the face of feminism. Feminism is not all women have to think the same way.


MACCALLUM: No, it certainly is not.

BENSON: Feminism is that women can think whatever they want.

MACCALLUM: That's exactly right. Marie?

HARF: Thank you for giving me that explanation. I know--


BENSON: You're welcome. You might need it on this one.

HARF: I know what's--


MACCALLUM: No, you suggested that if you are a woman you had to side with her.

HARF: That is not what I said.

MACCALLUM: That's what I heard.

HARF: Well, then you weren't listening.


MACCALLUM: No, I was listening.

HARF: Because what I said was--

MACCALLUM: Go ahead.

HARF: To a lot of women they felt like the Republican Party was not taking seriously Dr. Ford and other claims. Not that they had to automatically believe her. But the Republican Party over the last week, senators were telling women who were assault survivors they would listen to them when they grew up.

Donald Trump making fun of assault survivors at a rally. That's the Republican Party that Susan Collins is so proud to be part of.


MACCALLUM: You know what?

HARF: That is not feminism. I'm sorry, but it's not.

MACCALLUM: Yes, but we weren't -- we're not talking about any of those things when we're looking at the case that was presented before the Senate judiciary committee. And the responsibility of those senators was to look at the evidence as it was presented to them.

And to make what I guarantee was one of the most difficult decisions they ever had to make about a future Supreme Court. They have to do that without taking into consideration what kinds of labels and names they're going to be called and is thrown at them.

And I just think too as a woman to not respect the decision that she ultimately came to, regardless of what it was. If she had said no, I think we should respect her opinion. If she said yes, we need to respect her opinion. As a woman, as a senator, as a person who represents her state.

BENSON: And Martha, I will tell you the people that I know in my life who are most fired up about this are right-leaning women who absolutely came down on this, on Kavanaugh's side and were thrilled with the dispassionate case that Senator Collins built.

And every female senator who is a Republican except for Lisa Murkowski voted for this confirmation. Because Justice Kavanaugh deserve to be confirmed.


MACCALLUM: And I, you know, I think everyone should respect Lisa Murkowski's decision as well. She did the same thing. She weighed the evidence and she made her decision. We've got to go. Thank you very much, Marie and Guy. Always good to have you with us.

BENSON: Thank you, Martha.

MACCALLUM: So that is our story on this Monday night. Tomorrow, don't miss my interview with Senator Chuck Grassley in the hearing room where all of this started. See you then tomorrow night.
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