Sen. Rand Paul: Supreme Court vote will be divided along party lines

This is a rush transcript from "Your World," June 27, 2018. This copy may not be in its final form and may be updated.


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

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

Senator McConnell would tell anyone who listened that the Senate had the right to advise and consent, and that was every bit as important as the president's right to nominate.


NEIL CAVUTO, HOST: The battle is on. And so are we.

Justice Anthony Kennedy is leaving the Supreme Court. And that's got everybody plotting. It's our biggest issue today. It's our only issue this hour. It is that important right now.

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

And get ready for a summer to remember, as a Supreme Court justice is getting ready to hang up his robe. We have got you covered with Joe Lieberman on the very big battle to come, religious leader Bob Vander Plaats on the holy war -- yes, you heard me right -- yet to come, then Republican Senator Rand Paul, yes, on whether any of this gets done.

First to Shannon Bream at the Supreme Court, where the search is now on.

Hey, Shannon.


This is an interesting day, because, this morning, the term actually closed out. They formally closed it up and said, we will see you back here on the bench October 1, and no hint of any retirements.

But what we didn't know is that Justice Anthony Kennedy had already made up his mind. He wanted to talk to President Trump before issuing a very simple letter this afternoon to the president, and it went public, in party saying this: "Please permit me, this letter, by this letter, to express my profound gratitude for having had the privilege to seek in each case how to best know, interpret and defend the Constitution and the laws that must always conform to its mandates and promises."

He truly has been a swing vote. He doesn't like that term, but he's been a key in all these 5-4 decisions, many of them of landmark consequence. There have been a lot of these decisions even in the last week.

But over time, we think about him being a key vote in cases involving abortion, involving LGBT rights. He's been celebrated by folks in those camps. And those advocates, they now today are lamenting the fact that he's going to be gone. They're very worried about the kind of person that President Trump will pick.

They're unhappy with Justice Neil Gorsuch because he's proven to be what conservatives had hoped he would be. And now the president quickly getting another chance, a second seat.

Already, in the Senate, a number of reaction. You played there sound from the top Democrat in the Senate, Chuck Schumer. They don't want tots seat filled. They say they're going to do what they have to try to block it, although as long as they're in the minority, there are limits to what they can do.

Senator Kamala Harris out of California, herself viewed as very progressive and liberal, is saying this today.

She says: "We should not vote on confirmation until they have voted at the ballot box." She doesn't want this before the midterms, saying: "The president's list of potential nominees are complete nonstarters. They are conservative ideologues, instead of mainstream jurists. We cannot and will not accept them to serve on the highest court on the land."

The president has prepared a list of 25. Not clear how she plans to stop them. But as long as this is done before the midterms and the Republicans maintain at least a 51 percent -- or 51-vote margin there in the Senate, it's going to be really tricky for Democrats to have anything to do with really shutting this down, Neil.

CAVUTO: Shannon, I don't know. This much, I do. You are going to have a long, long day. You already have had one. And I can't wait until your show tonight.

So, thank you very, very much, Shannon. Great work.

BREAM: Yes. Thank you very much.

CAVUTO: All right, John Roberts at the White House, where all of this went down.

And the president optimistic that he will move very, very quickly on this - - John.

JOHN ROBERTS, FOX NEWS CHIEF WHITE HOUSE CORRESPONDENT: Well, the president's already that a whole lot of leg work on this, Neil.

Remember, last year, I think it was probably sometime in the spring and then later on in the fall, the president released a list of a number of names up from which he would draw a nomination for the Supreme Court.

Conservative groups are very happy with every name on that list. I talked to Carrie Severino at the Judicial Crisis Network. She said, we're very pleased that the White House is a list of justices, potential justices at least, that we don't have to worry about and she said that she could throw her support behind any one of the people who are on the list.

The president, though, when he was meeting with the president of Portugal earlier in the Oval Office, paying the expected tribute to Justice Kennedy, who he said had come down to see him and spent about a half-an-hour talking with him. Listen here.


TRUMP: Justice Kennedy will be retiring. And he is a man that I have known for a long time and a man that I have respected for a long time. He's been a great justice of the Supreme Court. He is a man who is displaying great vision.

He has displayed tremendous vision and tremendous heart. And he will be missed, but he will be retiring.


ROBERTS: Now, the president also said the Oval Office that nominating a person to the Supreme Court is about one of the most important things that a president can do.

And there are a lot of people, Neil, who have said, short of committing U.S. troops to battle, it is the most important thing.

The president this time too has the opportunity to cement a 5-4 conservative majority at the court for a number of years to come. Clarence Thomas is 70 years old. Justice Alito is 68 years old. They could conceivably, if you look at Ruth Bader Ginsburg, serve for another 10 at least, if not 15 years.

But then when you look at Justices Gorsuch and Roberts, they are still relatively young. And they could serve for potentially a generation. And the two leading candidates that the president is looking, Justice Kavanaugh of the D.C. Circuit, and the Justice Amy Barrett of the Seventh Circuit, the leading candidates for men and women, Barrett in he mid-40s, and Kavanaugh's about 53 years old.

But the president has to take that list of 25 and narrow it down to a single person. The president said that discussion began today with Justice Kennedy. Listen here.


TRUMP: Had a very deep discussion. I got his ideas on things, including, I asked him if he had certain people that he had great respect for that potentially could take his seat, which is a very hard seat to fill.

So we talked about different things. And he was here for about a half-an- hour.


ROBERTS: President knows, though, Neil, he's going to have a big battle getting his nominee through the Senate, because Senator Chuck Schumer came out just a little while ago and said that none of the people on that list should be acceptable to Congress.

So the gauntlet has been thrown -- Neil.

CAVUTO: Indeed it has.

John Roberts, thank you very much, my friend, John at the White House.

When they told me that Tom Dupree was coming in and going to be here in person, and I said, and I'm wearing this silly outfit, the former Justice Department maestro, just a great guest.

Good to see you, my friend.


CAVUTO: So, what are we looking at here? And how difficult will this process be?


Well, the first thing I would say is, you cannot understate the importance or cannot overstate the emphasis of what is going to happen, what we're about to see.

This is a transformational development, the fact that the president is...

CAVUTO: It really is.

DUPREE: It absolutely is, because, look, Justice Kennedy has been the swing vote on the Supreme Court for the last decade-plus.

We are going to be replacing a swing vote with someone who in all likelihood will be a conservative, a reliable conservative across the board. I think that is going to have massive ramifications for everything, from economics cases, business cases, constitutional cases, abortion, Second Amendment. Everything.

This just changes the entire fundamental dynamic of the United States Supreme Court, potentially for a generation.

CAVUTO: You know what is so interesting, too, Tom, is that whether this president is reelected or not, just by the stroke of this move, he could be and would be consequential for generations to come.

DUPREE: I think that's right.

And it's striking to me that he appreciates the fact that this is one of the most somber, significant, sacred responsibilities that he has. The justices that a president appoints to the court are one of the few things that we know will outlive his tenure for decades potentially.

And given the way the court is currently constituted at this point in time, 4-4, with Justice Kennedy right in the center, this is a really, really big deal.

CAVUTO: Now, how do know he won't, whoever is picked doesn't morph into something else? David Souter, of course, that was the rap against him.

President Bush thought he was picking a conservative. Turns out that he was much more liberal. So, you don't know for sure. And I know people evolve in that role. But then this list that you have been privy to and it's out there now, what do you think of that? Is that a hard and fast, right list?

DUPREE: I think it is a fantastic list, Neil.

I think the president will not go wrong choosing anyone from the list as we have seen it. And, look, I will say this. There are no guarantees that someone...

CAVUTO: It would be from that list? There are no potential surprises?

DUPREE: That's what he said. I mean, I suppose he could expand the list, but he's been pretty firm and consistent that he's going to choose from this list.

And I would say that, while there are no guarantees that someone will adhere to the ideology and the thinking about the Constitution that he or she brings to the office, at the same time I think the vetting process is very different today than it was back during the first President Bush, when Justice Souter was selected.

CAVUTO: Right.

DUPREE: You will recall, at that time, the first President Bush made the decision, based on kind of his gut feel, that certain people on his staff had recommended.

CAVUTO: And there were people who warned him this -- this New Hampshire guy isn't what you think.


DUPREE: Absolutely. They said he will be home run for conservatives. You know what? He wasn't. He wasn't even a single.

But I think at this point we are now sufficiently sophisticated in the process that people who advising the president can look at the track record, what has this person written, what has this person said about the Constitution?

So by the time the president ultimately makes his decision, I think he can have a very, very good degree of confidence that this person is as advertised.

CAVUTO: But it's a 50-49 Senate right now with the Republicans, right, and given John McCain's absence.

And I'm wondering, I mean, you need every Republican on board, right, assuming every Democrat rejects.

DUPREE: Right.

There's not much margin for error. And I think that will play a huge role, in that this is not going to be a slam dunk, whoever the president puts in.

CAVUTO: And gone are the days we had 97-0 votes, right?

DUPREE: Yes. Right.

I know. And it's funny. Justice Scalia was confirmed unanimously. Can you imagine something like that happening today?

So whoever he chooses, I think it's a safe bet this is going to be one of these razor's edge, 51-49-type votes. And for that reason, they need to make sure they manage this confirmation process the same way they managed the Gorsuch process, that is to say, very professionally and successfully.

CAVUTO: Yes, that was well done.

Tom Dupree, so good seeing you in the flesh, my friend.

DUPREE: Good to see you, Neil. Same to you.

CAVUTO: Thank you very, very much.

I can't keep teaching you this legal stuff, just so you know.


DUPREE: You're a quick study. You're a quick study.

CAVUTO: There we go. There we go.

All right, we got a lot more coming up. Rand Paul's read on this, a very, very, of course, influential senator. He's his own man when it comes to these things.

So, early reads on what he's thinking, what he thinks his colleagues will be thinking -- after this.


CAVUTO: All right. We will know soon what the president wants to do about this, replacing Anthony Kennedy on the Supreme Court here.

Now, much of this was telegraphed. It was just a matter of when we were told, not even if. But, again, as we indicated, the Supreme Court justice indicated to the president today, he wanted to stop by, talk to the president, tell him in person that he wanted to step down.

And now the choices. The president has a list. He's going to use that list.

Now, on that list so happens to be the Utah Senator Mike Lee.

I want to get the read on that from Kentucky Senator Rand Paul, what he makes of that.

One senator on the list, Senator, and your colleague Mike Lee. How do you feel about that?

SEN. RAND PAUL, R-KY.: I think he would be a great pick.

But I think I would hate to lose him in the Senate. He and I are allies are so many things, constitutional war powers, criminal justice reform, personal privacy. All of these issues, Mike Lee has been right there with me. So, I would hate to lose him from the Senate.

But he's a very thoughtful guy, well-read, well-spoken and knows the law better than anybody that I have ever met probably. So, he would be a great pick. But I would be of divided loyalties, because I think we really need him in the Senate, where we're often outnumbered by people who don't really seem to give a darn at all about the Constitution.

CAVUTO: Well, that is high praise from you, Senator.

Obviously, it would be a little convoluted, too, because then he would have to leave the Senate. And then obviously the governor of that state would appoint a replacement. And that could be confusing.

But do you think that there's anyone on that list that could surprise folks, because some people look back, particularly on the conservative side, and say, we have been disappointed before. They use the Souter example and others, even Anthony Kennedy, who surprised people with how he could go from conservative to a swing vote, albeit an important vote.

But what do you make of that?

PAUL: Well, I don't know anybody on the list.

But I do know that the guy who was at the top of the list, Neil Gorsuch, is amazing. I just read his opinion in the Carpenter case. This is a case about whether the government can track your location forever, all of the time, without a warrant.

CAVUTO: Right.

PAUL: And his was the only dissent that said, when you give your records to a third party, a telephone company or a bank, Gorsuch was the only one that says the Fourth Amendment still should comply completely and always, that you still have a privacy or a property ownership in information when you let somebody hold it. You haven't given up an expectation of privacy.

And Gorsuch's opinion was better than anybody else's on the court. So, you're talking to a guy who is a big fan of Gorsuch on the Fourth Amendment and I think on property and on a lot of other issues. He is going to probably end up being the most libertarian justice we have.

So if anybody else is in the mode of Neil Gorsuch, I'm all for them.

CAVUTO: Senator, some of the recent decisions that have been close ones and 5-4 rulings have prompted some to say we need a more decisive court. One more conservative vote in this case could potentially make 5-4 rulings 6-3 rulings. The other side laments that process, though, and hints that this is going to be a very, very divisive summer into the fall.

What do you think?

PAUL: I -- if I had to predict, I think Supreme Court vote, no matter who President Trump picks, will be divided among party lines, because the Democrats have dug in.

And I don't think they're willing to look at each individual person that is nominated. They're so angry, they're now talking about violence. There are people in the Capitol pushing people, yelling kidnapper.

It's really gotten kind of out of hand. You have members of Congress fomenting this kind of stuff. So, no, I think they're going to dig their heels in and just yell and scream and vote against anybody President Trump picks.

But there's about eight states where Democrats are running for the U.S. Senate where President Trump won by between 20 and 40 points. And so if they want to yell and scream and say they hate everything about Trump and they're not going to do anything and not listen to anything Republicans have to say, their voters might think otherwise in November, because I think they're tired of Democrats making everything so partisan, frankly.

CAVUTO: So, this other view that, oh, what's the rush? And you hear that many on the left and said, there's no need to rush. And they use that.

And Chuck Schumer, I believe, used that, I'm paraphrasing here, Senator, that Mitch McConnell had used that argument in holding off on a Barack Obama appointment for the Supreme Court position that was ultimately filled by Judge Gorsuch, that the same applies here.

So they wonder why. What do you think?

PAUL: It's sort of -- I would say it's a completely different situation.

When Senator McConnell said we need to wait until after the election, it was a presidential election. The president gets to pick Supreme Court. So you can see how, when you're in the middle of deciding who the president is, you probably shouldn't, at the very last minute of a presidency, when that president is not running, have them pick.

You can how the election might really be important to decide who the next president is going to be. We're not going through a presidential election. We're just going through a congressional election.

So, no, I think we should proceed forthwith. And, like I say, if President Trump nominates somebody half as good or nearly as good as Neil Gorsuch, I will be very happy.

CAVUTO: Because there is another thought here.

Whatever happens in the House, Senator, there's a good likelihood, at least in the Senate, Republicans could pick up seats. Way too early to say. And you and I have gotten into this before. But the math might improve for the odds of getting a pick approved. Right now, it's as close as you can get.

PAUL: Yes.

No, I think that it's very likely that the Republicans keep their majority in the Senate or actually maybe expand that authority or majority.

I think, in the House, it's going to be historic. But, typically, throughout history, when a president wins in one party, the other party often takes over 30 seats or more in the House. I think it's looking less likely than that, because the Democrats' problem is, they're now the party of social sort of a specific, sort of small percentage, sort of victim groups spread out through society.

But they have sort of lost track of being for the working man. And I think just the general working man who is not part of some sort of special class or special group, victim group, who just wants a good job, is starting to say, gosh, the economy is picking up, wages are picking up.

This may be the most rapid growth we have seen in a decade or more. I think we are going to hit 4 percent GDP growth. The enthusiasm I feel, I think we could hit 5 percent GDP growth if we could just sort of calm the waters on the trade front.

But if we can get beyond this trade war, and it doesn't escalate, I think the tax return is just starting to get into the economy. And I really think you're going to see some amazing economic growth.

CAVUTO: You mentioned the economic growth and the wind that has been at the back certainly for the president.

Of course, we had the market trip up today, as we have had in nine of the last 11 trading days. So, I don't want to get too overly obsessed with that.

But is it your concern, Senator, that a chief justice should be a strict constitutionalist? In other words, just following what our forefathers intended, and not trying to reinterpret that or add to that?

Because, by that definition, a lot of modern-day decisions were apart from that, and that even so-called conservative justice, now swing vote justices, have veered from that.

What does a Rand Paul want to see out of the Supreme Court pick?

PAUL: Someone who reads the Constitution as it was intended, is aware of the original intent of the framers of the Constitution, and understands basically that they wanted a very small government that did very little in the marketplace, and actually had a very modest and moderate foreign policy that made it difficult to go to war.

We only went to war when Congress voted on it. So, a Constitution that was -- not only thought it was important to protect privacy, but John Adams said that James Otis' arguments against general warrants or writs of assistance, he said it was the spark that led to the revolution.

So, Fourth Amendment privacy issues are very big for those of us who believe in the original interpretation of the Constitution. All I can say is, I don't know everyone on the list, but I do think that Neil Gorsuch, who was at the top of the list, has turned out to be a great justice.

And if we can get any more similar to Neil Gorsuch, I will be exceedingly happy.

CAVUTO: Senator Rand Paul, very good seeing you. Thank you very much.

PAUL: Thank you.

CAVUTO: All right.

CAVUTO: And then there's the religious issue involved here, the right to life involved here, Roe v. Wade and so much here.

What is at stake with evangelical leader Bob Vander Plaats -- after this.


CAVUTO: All right.

You could mark it consistently and like clockwork. Every time a Supreme Court position opens up, the first issue that comes up to mind is Roe v. Wade, right to life.

The whole abortion issue comes back and what role and what thoughts that particular justice had or potential justice has on these matters.

It's an important matter to this next guest, the president and CEO of The Family Leader, Bob Vander Plaats.

Bob, very good to have you.

How crucial is that issue to you? I mean, above others, with others, among others? What?

BOB VANDER PLAATS, CEO, THE FAMILY LEADER: It's the cornerstone of all of our issues, Neil.

I think this is an opportunity to restore a culture of life in this country that honors God and blesses people. We definitely see this as an answer to prayer.

I think it also marks that this might be the most consequential election, 2016, at least in my lifetime, the one vs. Hillary and President Trump, because if Gorsuch is the standard, we would like to see another Gorsuch on that court.

CAVUTO: Now, you might be surprised that those on the left feel a little differently. And they have urged that this be put off. How you feel about that?

VANDER PLAATS: Well, I don't think it should be put off.

And we're thrilled to have our own senator, Iowa's U.S. senator, being chaired of the Judiciary Committee, Chuck Grassley. He is the one who actually pushed it back until we had the presidential election.

But this is not a presidential election. We do have President Trump. He's going to appoint the next Supreme Court justice nominee. And I believe this Senate is going to confirm his desire.

Even if it got pushed off, Neil, I think what you're going to do is, you are going to see a rallying of the base. When they thought the base on the right wasn't going to be energized this time, I think the base of the right is going to be very energized.

They see what is at stake. And, as you mentioned, the culture of life is at stake.

CAVUTO: You think about it, too, they might be careful what they wish for, right? Because there's a possibility that, if they waited, the number of Republicans in the Senate could actually increase, regardless of what happens in the House.

And so that's where the action will be on this appointment.

But, having said that, there is a sense that, do we just reverse Roe v. Wade? What do we do going forward? What would be your preference going forward?

VANDER PLAATS: Well, in Iowa, we took a major step this past legislative session and we passed heartbeat legislation signed by Governor Reynolds.

The whole legislation was aimed and purposed to take down Roe v. Wade, because Neil, you will understand the crux of the Roe v. Wade argument was, if we could ever determine if that that baby was a person, that whole case collapses.

A heartbeat does that. We knew the courts were going to be changing. We didn't know Kennedy was going to be retiring. But we knew, if Gorsuch was there, and if Kennedy did retire, or if Ginsburg stepped off the court, we knew Trump was going to be a constitutional conservative president who would appoint constitutional conservative judges.

And we have a chance to take down Roe v. Wade. This is a historic moment in the pro-life community today.

CAVUTO: Let me then go on to gay marriage, Bob.

There's a sense that that is now settled law and that the Supreme Court has settled it not once, but twice, technically three times.

Do you agree with that?

VANDER PLAATS: No, I don't agree with it.

I think God's design for marriage and family, we will revert back to that. I think the reason you're seeing Senator Schumer and others being so upset about what has taken place today, everything that they have run through and got passed has been through the courts.

It's not been through the people. It hasn't been through the elected officeholders. And now the courts are changing. And so we think marriage needs to be debated again. And I think we, the people, should be deciding...

CAVUTO: When you say revert it back, then, revert it back, do you mean that marriage can only be accepted between a man and a woman?

VANDER PLAATS: Yes, I do believe that. And I believe we, as a society, will...

CAVUTO: So, then, for all the recognized marriages that we have seen, same-sex marriages that we have seen, would it be your view then, Bob, that this new configured Supreme Court down the road, assuming it's more conservative, should recognize that as well, and upend all of these gay marriages?

VANDER PLAATS: Well, I think what we should do, as a culture, is return back to the gay God designed and intended it, and that is between and a man and a woman. Those are the parameters.


CAVUTO: but that would be very big news, that would be very big news to a number of gays and those who welcomed these three decisions, technically three, that has now seen marriage in that expanded light.

You do not, and you don't think we should?

VANDER PLAATS: No, I don't think we should.

And I think we're going to continue to have this conversation as a country, but we're going to do it under the right process. And that's I think what you saw with your previous guest, Rand Paul, wanting a constitutional, conservative Supreme Court justice who understands it's not their job to make law, and it's not their job to rewrite the Constitution.

A constitutional amendment is done by we the people, not by five Supreme Court justices. So, I think there's going to be a lot of issues up for debate.

But, in large part, this is a very exciting day for those who believe in the fabric of the Constitution today.

CAVUTO: Bob Vander Plaats, CEO of The Family Leader, thank you. Very good seeing you.

VANDER PLAATS: Good seeing you, too. Thank you, Neil.

CAVUTO: All right, he was a Democratic vice presidential candidate, then an independent United States senator, after being a Democratic senator, a very prominent leader on this whole issue that is about to come up to his old colleagues in the United States Senate.

What does Joe Lieberman make of what the good reverend just said, of what Ron Paul has been saying, and what everyone seems to be saying in between, about a royal battle to come, of course, from Rand Paul and others?

Joe Lieberman is next.


CAVUTO: Forget whether the was caught off-guard by Justice Kennedy's soon-to-be-departure the Supreme Court. Apparently, he has a list, a very detailed list. Someone from that list will be the next Supreme Court justice.

We're back in 60.



SEN. CHARLES GRASSLEY, R-IOWA: The next step is that we have wait for the president to make a decision.

And I don't have an idea who that is, but we know what the president has said in the past, that probably nominees would be coming off of a certainly list that he put forth.

I think that it would be better to say that that would be the type of person that he might select.


CAVUTO: All right, pay attention to that man, because Chuck Grassley runs the Judiciary Committee.

And it's through that committee that all these options will run and ultimately candidates will be accepted or rejected. Obviously, the president, given the time crunch here, has got to hope for sooner rather than later. He can't make a bad choice, because that will obviously compound this.

And the more controversial, it drags into next year, and God knows what else.

Former Democratic Senator, former vice presidential candidate Joe Lieberman on all of this.

Good to see you, Senator.

JOSEPH LIEBERMAN, FORMER U.S. SENATOR: You too, Neil. Good to be here.

CAVUTO: So, you can't afford to make a mistake if you're the president, right, or a nominee that doesn't click, right?

LIEBERMAN: Yes, right.

In this kind of circumstance, where there's a lot on the line, we say that, in America, nobody is above the law. And what we really mean nobody is above the law as interpreted by the Supreme Court. So, this opening on the court is really important to our future.

You might think that the president would look for a moderate here to try to engage a few moderate Democratic votes.

I don't think so. I think he made a commitment during the campaign. He's going to take his nominee off of the list provided be the Federalist Society or the Heritage Foundation, and it's going to be a real conservative.

Obviously, what they have got to watch out for is that the person doesn't have anything in their personal background that would lead members of the Senate to vote against them.

CAVUTO: And you need all 50 Republicans. It's usually 51. But your friend John McCain, of course, battling brain cancer, is not going to be there for that.


CAVUTO: So, every single one of them, assuming you don't get a Democratic vote, is going to be need. Right?

LIEBERMAN: It is going to be needed.

And it's really -- it's going to come down -- I heard the last segment on the show, your discussion. And if this nomination looks to be someone who will definitely or probably overturns Roe v. Wade, that's a direct challenge to at least two of the Republican senators, Susan Collins and Lisa Murkowski, who have a pro-choice voting record.

CAVUTO: Very good point.

LIEBERMAN: So, my guess is the president avoids that kind of person, and the nominee avoids that kind of disclosure or statement in the hearing before the Judiciary Committee.

CAVUTO: They're usually very good. And Gorsuch was good at this.


CAVUTO: And most of the worthy candidates are, whether on the left or the right, avoiding direct answers to those questions.

But I do want to get you to react.

Dianne Feinstein is out a statement saying that: "We're now four months away from an election to determine the party that will control the Senate. There should be no consideration of a Supreme Court nominee until the American people have a chance to weigh in."

Now, of course, she said just the opposite when Barack Obama was considering a replacement that was put off by Mitch McConnell at the time for the presidential election.



CAVUTO: But what do you make of it?

LIEBERMAN: Well, just what you said.

This is the World Cup, the Super Bowl of American government. And it's going to happen in the middle of a closely contested congressional election. So, expect both sides to be firing at each other. Interest groups on both sides spending a lot of money to make their case.

And, as you said, Neil, the arguments will be switched from where the Republicans and Democrats were last time around. But the key is, really, who the -- in the first instance who the president nominates and then how that person performs during the confirmation hearings.

CAVUTO: Yes, that is crucial, isn't it?



You want to think -- and my guess is on that list are people who are smart.

Look, Gorsuch -- Justice Gorsuch is a conservative, but he's clearly very intelligent. He's already surprised in one or two decisions.

CAVUTO: He has.

LIEBERMAN: Yes, he hasn't gone -- so, incidentally, I would say that Justice Kennedy was seen as the swing vote on the court.

CAVUTO: He didn't come out that way in the beginning. Right?

LIEBERMAN: Exactly right.

And right now, I would say the most likely to be the swing vote, the one who the lawyers arguing before the court will now focus on in their arguments, is Chief Justice Roberts.

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

LIEBERMAN: Because he's very smart. I would say he's conservative, but open-minded.

Remember, he cast the deciding vote to uphold Obamacare in two separate decisions. Also...

CAVUTO: Very true.

And he alienated the entire conservative community. Right?

LIEBERMAN: Also, the court is known as the Roberts court.

And I don't think he wants the Roberts court to be seen as a reflexively conservative court. He wants it to be seen as a thoughtful court.

CAVUTO: Well, did you go through the questioning process with Souter with the first President Bush?


CAVUTO: So, he was someone who was touted from New Hampshire as conservative as they get.


CAVUTO: And he was anything but.

I'm not saying he was like a wild, wild liberal or anything. But he was definitely not what they thought.

Did you have a sense of that? Did your colleagues have a sense of that? What do you look for in these nominees that isn't telegraphed in their record?


You never know. I mean, really, somebody said to me at one point -- maybe I said it to myself -- the last...


LIEBERMAN: The last Supreme Court nominee who really let it all out there and said exactly what he believed was my former law school professor, the late Robert Bork.

And you know what happened to him.

CAVUTO: Absolutely.

LIEBERMAN: Because he was so district and so confrontational, he didn't get nominated.

Justice Souter, I actually happened to have known, because he had been attorney general of New Hampshire when I was attorney general of Connecticut.

I had no ideological feeling about him. I thought he was a moderate, balanced, thoughtful guy.

CAVUTO: Yes. That's what I remember, yes.

LIEBERMAN: And that's the way he came off in his nominating, confirmation procedure.

And I think he ended up voting the way his mind and heart took him. In other words, I don't think he was hiding anything.


LIEBERMAN: I think...

CAVUTO: I don't think -- I just think it evolved. And people are saying, listen, he didn't telegraph much in that.


CAVUTO: But hard to see.

Always good seeing you, Senator.

LIEBERMAN: You too, Neil.

CAVUTO: Thank you very, very much, Joe Lieberman.


CAVUTO: The president is on route to this North Dakota rally.

But, as Senator Lieberman pointed out here, this is his opportunity as well, not only to change the shape of the United States Supreme Court, but whether he's reelected or not, changing our society in the process for a generation to come. That's a pretty big deal.

More after this.



MARK JANUS, PLAINTIFF: It's up to the worker to decide what they want for themselves, not some other larger entity.


CAVUTO: All right, that was the man who was arguing that he didn't want to feel forced, as a non-union member, to pay union dues at a public union.

And, of course, the Supreme Court, as you heard by now, has agreed with that. And if we see a conservative justice put in to replace Anthony Kennedy, are we going to see more of those what is deemed to be typically business-friendly decisions?

Former AFL-CIO Stewart Acuff hopes not. Market watcher Gary Kaltbaum hopes we do.

So, let me begin with you, Stewart.

You're concerned about a business direction this court could take, right?


And, Neil, everything in public life today has to be laid against the backdrop of 40 years of stagnant wages. And so here we're in this period with this Supreme Court where they gave ultimate power and say to corporations in the Citizens United case and now, in this case, reversed 40 years of precedent.

Remember, the ruling, the Abood ruling which made the precedent here was made in the late '70s. And so they reversed precedent to further weaken the voice of working people and further weaken labor unions, which is part of the problem. It's the main part of the problem, that we're losing our middle class.

CAVUTO: Well, that's been happening, certainly, to your point, with private unions that are only 6 percent of the work force now, 30-percent plus when we look at the public side. That could change.

So, Gary, from your vantage point, you're saying this is about free choice, right?


And I completely disagree. This strengthens workers. What is the matter with workers being able to have a choice, and not have an entity taking their hand, stick it in the pocket and taking money out, when somebody disagrees what they're doing?

And let's be clear. These unions are political organizations right now. This is a great capitalist move. And you talk about precedent. It's been a bad precedent for 40 years. And it's been -- it's about time something like this happened.

And I'm surprised -- well, not surprised, but this should be 9-0, not 5-4, in the Supreme Court.

ACUFF: This is an anti-free market move.

You're taking the power and the right of workers and unions to decide for themselves together what they want and what direction. Unions are not political organizations. They are primarily...


CAVUTO: I hear where you're coming from on this issue.


CAVUTO: I just want to step back on what you're worried about with this now change in the Supreme Court.

Stewart, you don't want to see more such decisions like this. It looks like you're going to. How do you feel about that?

ACUFF: No, I don't want to see more decisions to weaken the voice of workers.

CAVUTO: OK. That, I understand.

But, Gary, you welcome it. You welcome...

ACUFF: But wait, wait, wait, wait, Neil.

CAVUTO: Go ahead.

ACUFF: Neil, I have got to correct something here.

Workers have -- cannot be charged union dues against their will in any workplace in America. They can be changed fees for collective bargaining.

Before I retired, every week, I had to fill out a time sheet listing the categories of all of my duties, all of my work, with a place for political, a place for collective bargaining, a place for lobbying.

CAVUTO: And a separate column. A separate column, right?

ACUFF: A separate column. So, it's all accounted for.

CAVUTO: All right, so Gary, on this...


CAVUTO: I understand.

Gary, I just want to focus on this and what is happening right now.

We're going to have a Supreme Court that will go a little more conservative, likely. You would welcome that. Stewart is worried about what that portends. So...

ACUFF: I'm worried what happened right now, not just the future.

CAVUTO: All right, I understand. But I got you, got you.

But Gary?

KALTBAUM: I think the power should be in the people's hands, in the workers' hands.

ACUFF: It is, Gary.

KALTBAUM: And you talk about collectively. I'm talking about...

ACUFF: That's silly.

KALTBAUM: Let me finish.

ACUFF: OK. Doctors shouldn't...


CAVUTO: Let him finish, Stewart. Let him finish. Let him finish.


CAVUTO: Go ahead.

KALTBAUM: I'm talking about individual choice at this point.

And, by the way, this is a great opportunity...

ACUFF: They do.

KALTBAUM: Let me finish.

This is a great opportunity for the unions. They have not earned their keep for years. Now they have a chance to do that. If they have such a great product, market it to these workers.

ACUFF: Well, Gary, we will. We will, just like...

KALTBAUM: Sell themselves better. Do the right thing. And you will -- and those five million people will continue to pay into it.


ACUFF: ... public employee union in Georgia with no rights. We will continue to organize.


CAVUTO: All right, we will see.

But, bottom line, bottom line, the way the court...


CAVUTO: We should see more of it.

ACUFF: But if you want teachers strikes, that's what you got coming.

CAVUTO: All right.

All right, guys, I want to thank you both very much. This wasn't really what...


ACUFF: Great to see you, Neil. Take care.

CAVUTO: I wanted to get your thoughts on this new Supreme Court change, but you can't always hit it out of the park each day. And you save time with people talking over another.

We will have more after this.


I don't know if you have noticed, but, lately, we have had pretty divided parties and extreme thought and people, you know, kicking people out of restaurants or going after them online and tweeting.

And also in this mix, we have now a chance at a new Supreme Court justice. You know that rigmarole and the divisiveness that could get added anew.

So what are we looking forward to? Or what are we in for?

Let's get the read from Robert Patillo. He's a Democratic strategist, Alex Smith, American Rising Political Action Committee executive director, and historian Doug Wead.

Doug, end it with you.

Usually, history tells us that any time we're looking to appoint a Supreme Court justice, it gets nasty, even in relatively calm times. What are we looking at here?

DOUG WEAD, FORMER ADVISER TO PRESIDENT GEORGE H.W. BUSH: Yes, I think this is going to look like the German-Russo front in World War II.

I think, if you think shouting down Sarah Sanders at a restaurant is uncivil, just wait the next few weeks, because it's not just the Democrats that Donald Trump is going to be taking on. It's going to be the whole corporate media and the whole culture of America is at stake for the next 30 years.

I think it's going to be very tough, very bitter.

CAVUTO: Robert, a lot of Democrats are saying that they don't think this process is fair, that, what is the rush? Of course, they had argued on behalf of President Obama having the right to get his Supreme Court appointment, maybe because they didn't understand Mitch McConnell wanting to punt and wait.

What do you think?

ROBERT PATILLO, POLITICAL STRATEGIST: Well, I think it's important we follow the McConnell rule. He said no Supreme Court justices ahead of elections, which is exactly what we should do this time.

CAVUTO: Ahead of a presidential election. Ahead of a presidential election.


PATILLO: Well, look, we have three co-equal branches of government.

So, the Senate and House election is exactly the same as a presidential election. The Senate has the right to confirm judges. Therefore, the American people have to have their voices heard by electing these senators who make the decision. So, you push this off to after the election.

CAVUTO: I hear you, Robert, but it was based on a presidential election. It wasn't based on a midterm.


PATILLO: When you are making up rules out of midair, then of course you will say it's based on a presidential election.

But let's follow that rule now. Let's push this off after the next election.


CAVUTO: Well, you just made a rule out of midair -- just said go ahead and go with that one out of midair.

All right, Alex, what do you think of this and what we're looking forward to or not?

ALEX SMITH, EXECUTIVE DIRECTOR, AMERICAN RISING PAC: Well, if you look at the not-so-distant past, in 2010, when President Obama had a Supreme Court pick come up, you know, he nominated Kagan in May, and she was confirmed by August.

So I think the president is going to pick another qualified jurist, like Justice Gorsuch. And I think that, as a practical matter, the politics of this midterm election dictate that these senators in red states, states that the president won in 2016, simply are not going to allow Democratic senators to stonewall these kind of deliberations.

Someone like Claire McCaskill, someone like Bill Nelson, in their state, they are not going to be able to get away with jamming up the president on the judicial nomination process.

CAVUTO: Or they can just reject. In the end, that's another thing.

But, Doug Wead, obvious , we're assuming here that everyone is in synch and monolithic, all Democrats go one way, all Republicans go another way. There's a possibility among some of those Republicans -- and it's not much wiggle room here -- among the 50, if two or three certainly are going to be concerned about overturning Roe v. Wade or any hint of that out of presidential pick.

What do you think?

WEAD: You're absolutely right.

And then there's the idea that he is going to automatically pick another Gorsuch. He made it look easy. But Ronald Reagan picked a conservative who turned out to be a liberal and picked a conservative who turned out to be a swing vote. And George H.W. Bush picked a conservative who turned out to be a liberal.

So just saying that he's automatically going to pick another Gorsuch, he is going to try. And then there's what you just mentioned. There's the fact that the media is going to go after these senators. They only have to pick a couple of them off. It's not just the nominee that is going to have every bad thought he's ever had exposed.

It's one by one these senators. They're going to be on the spot. The media is going to hold their feet to the fire.


Robert, what are you looking for in whoever the president chooses? And a lot of your friends, what are they looking for?

PATILLO: Well, I think what we have to look at is most who is going to be a fair jurist, somebody who has a similar judicial philosophy to Anthony Kennedy, someone who can be explained -- but I don't understand at what point in American politics we got the Supreme Court justices picking a team and voting with that team 100 percent of the time.

Let's get justices in place who follow the tradition of a Sandra Day O'Connor, who can analyze facts, who sometimes they will vote liberal, sometimes they will vote conservative, but we're getting the best rules and the best laws out of it.

CAVUTO: Alex, sometimes, the candidates, to Doug's point, will surprise you, and not be predictable. And we have even seen it out of this court and the Gorsuch votes and some of the Roberts votes.

Of course, it was Justice Roberts who infuriated a lot of conservatives by essentially keeping Obamacare alive. So they can surprise you. What do you look for in the hearings to hint at that?

SMITH: Well, look, I think, personally, what I'm looking for in a Supreme Court nomination is, I'm looking for someone who shows fidelity to the Constitution, someone who is looking to interpret as it was originally intended.

And I think that is what is on display in the list of 25 very qualified jurists that the president has put out there for everyone to evaluate. He said that he was going to look to that list to make his pick.

We got Justice Gorsuch out of that. And, as you mentioned, Chief Justice Roberts, he is incredibly deft and political at narrowing these decisions, so that they don't go -- they don't swing one way or the other too hard.

CAVUTO: Well, he might swing, though, right? Alex, there's a real possibility there.

And, Doug Wead, I want to raise that, that his name has been mentioned as becoming the new Kennedy, the new swing vote. I don't know how this will morph and who will become what. But that does happen in history, doesn't it?

WEAD: It sure does.

It seems like, just when you think the court is going to tilt one way or the other, one of these justices starts rethinking.

But I will just say this. That's what this election was all about. You can hear all these theories about jobs in Wisconsin, Pennsylvania, why the conservative Catholic labor were voting for Trump, and why a few more Hispanics than normal, why the evangelicals are solidly in his camp, in spite of his bad language. It's the Supreme Court. That is what it was.

And now we're at that moment.

CAVUTO: No, I think you're right. That is what he kept hanging his hat on there, that is, candidate Trump, that, look, this is what he can do.

Robert, is it your belief that it will be the monolithic, that all Democrats will vote one way, Republicans another, for the most part?

Because that's gotten to be almost the routine with these votes. Gone are the days you would have 97, 100 to nothing votes. What do you think of that?

PATILLO: Well, what we have seen on the Democratic side is leadership being completely feckless and having no ability to marshal their troops or get people in line.

So you won't see 100 percent of Democrats vote against this nominee just based on party lines.

You can see someone like a Warner or McCaskill switching over. But, at the same time, you might see Susan Collins or Lisa Murkowski voting against the candidate. So, it won't be an up-or-down, straight-down-the-line vote, because I have no confidence in the Democratic leadership to be able to get their people in line to do so.

CAVUTO: All right.

You all argue your points very, very well. It's still early in the process. We don't even have a name yet, but we will see how it goes.

Guys, thank you all very, very much for helping us out today.

SMITH: Thank you so much.

WEAD: Thanks, Neil.

PATILLO: Thanks, Neil.

CAVUTO: All right, so history is about to be made again.

And no matter how you feel about this process, the process is on. It's going to be a hot summer right now, and for Anthony Kennedy, taking advantage of this moment when Republicans sort of run the table to say, I'm leaving the table.

"The Five" is now.

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