Supreme Court appointment 'done for the right reasons' will help President Trump: Pollster

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This is a rush transcript from "Your World” September 21, 2020. This copy may not be in its final form and may be updated.

NEIL CAVUTO, FOX NEWS ANCHOR:  All right, Bill, are you ready for a food fight? It's going to be nasty.

Welcome, everybody. You're watching YOUR WORLD.

And by the end of the week, maybe Saturday at the latest, the president of the United States has already made it clear he is going to announce his choice to replace Ruth Bader Ginsburg, who died last Friday at the age of 87.

Her wishes were supposedly that a different president would be making these calls. But, constitutionally, it is the president of Donald Trump that's going to make that call. We don't know the name he will ultimately choose. We know a list that's been whittled down that had some intriguing figures on it.

And we do know that it's created a huge disruption in Washington and a concern for the markets early on that some things are getting sort of pushed down the bench, so to speak, including stimulus and efforts to keep the government open and avoid another shutdown.

We will get to that in a second.

Now to John Roberts on the battle that is now in play.

Hey, John.

JOHN ROBERTS, FOX NEWS CHIEF WHITE HOUSE CORRESPONDENT:  Good afternoon to you, Neil.

Sorry. I'm just taking my e-mail here.

The president still has not come out of the Oval Office to the helicopter. He is off to Ohio for a couple of campaign events this afternoon, the president now running more than an hour behind schedule. It's possible that there will be some chopper talk on his way out to Marine One, and he will say more about this.

But what the president said on "FOX & Friends" this morning is that he will make his announcement of his new nominee to succeed Ruth Bader Ginsburg either Friday or Saturday, depending on what the schedule for her memorial is -- I would think Saturday is looking more likely -- and that he wants a confirmation vote by Election Day on November the 3rd.

Now, a lot of people are saying, wow, the average time to confirmation in modern days is about 50 days. But there is historical precedent to do it a lot more quickly, historical precedent that the Senate majority leader, Mitch McConnell, was only too happy to point out a short time ago.

Listen here.

(BEGIN VIDEO CLIP)

SEN. MITCH MCCONNELL (R-KY):  We're already hearing incorrect claims that there is not sufficient time to examine and confirm a nominee.

We can debunk this myth in about 30 seconds. As of today, there are 43 days until November 3 and four days until the end of this Congress.

The late iconic Justice John Paul Stevens was confirmed by the Senate 19 days after this body formally received his nominations, 19 days from start to finish.

(END VIDEO CLIP)

ROBERTS:  And it's not only Justice John Paul Stevens who got confirmed fairly quickly.

The chief justice, John Roberts, was confirmed in 24 days after being nominated by President Bush in 2005, Justice Sandra Day O'Connor 33 days after being nominated by Ronald Reagan back in 1981. And Ruth Bader Ginsburg herself was confirmed just 42 days after she was nominated by President Clinton in 1993.

Still, Democrats say they are going to throw everything they can AT this to try to block the nomination.

Here's Senator Chuck Schumer on the Senate floor just a short time ago.

(BEGIN VIDEO CLIP)

SEN. CHARLES SCHUMER (D-NY):  For hundreds of millions of Americans, this vacancy on the Supreme Court puts everything, everything on the line.

Leader McConnell and the Republican Senate majority have no right to fill it.

(END VIDEO CLIP)

ROBERTS:  Well, they do have the absolute constitutional right to fill it, just as the president has the absolute constitutional right to put forward a nominee.

Whether he should do it, though, Neil, all depends on which side of the political aisle you sit -- Neil.

CAVUTO:  And that position can change as it has, With both sides over four years from where we were.

ROBERTS:  Exactly.

CAVUTO:  Thank you very, very much, my friend, John Roberts at the White House.

And to sort of elaborate on John's point there, 25 times, presidents have picked their Supreme Court choices, their nominations in election years; 21 times, the Senate has confirmed their nominees, including six pushed by lame-duck presidents who would be looking at a different successor after all was said and done.

That was then. What happens now?

Chad Pergram following it all very closely on Capitol Hill.

Hey, Chad.

CHAD PERGRAM, FOX NEWS CONGRESSIONAL CORRESPONDENT:  Hey there, Neil.

Well, you're right. They have done this in the past, but you have to go pretty far back in history. Here's a couple of examples. The last time that there was a Supreme Court justice moved through in a presidential election year, this was 1940, January of 1940, Frank Murphy on the Supreme Court.

Also, you had Nicholas Cardozo on the Supreme Court in -- excuse me -- Benjamin Cardozo in 1932.

In terms of a lame-duck confirmation, you have to go back to 1880. That was a confirmation of William Woods.

Let me just go through a couple of developments that have happened here in the past hour. This has been quite a hectic hour. This is the first hour, really, of this fight for the Supreme Court in -- that's probably going to play out over the next 30 to 40 days here.

On the Senate floor just a few minutes ago, Chuck Schumer, the Democratic leader said, surely they, meaning Republicans, they must abide by their own precedent. What's fair is fair.

He's referring to Merrick Garland, the nominee of President Obama who never got a hearing back in 2016, again, a presidential election year.

And, also, this has just come in the past bit here. Lindsey Graham, who is now the chairman of the Senate Judiciary Committee, he says -- quote -- "After Kavanaugh, I now have a different view of the confirmation process."

There were a couple of instances over the past couple of years where Lindsey Graham has indicated that they should adhere to the standard that was established in 2016. And there's a number of other Republican senators who were on the record as pushing and supporting what Mitch McConnell engineered to block Merrick Garland.

Now the shoe is on the other foot, and that is why this is galvanizing senators on both sides of the aisle.

Keep in mind, this is what Mitch McConnell, the Senate majority leader, has to juggle. He has to juggle trying to get this nomination through quickly, and also being mindful of Republican senators facing competitive reelection bids, like Cory Gardner in Colorado, Susan Collins of Maine, who has a tough race in Maine.

She already indicated that she thought they were trying to move too quickly, Neil.

CAVUTO:  Indeed.

Thank you very, very much, my friend, Chad Pergram following all of that.

I want to go right now to Senator John Thune. He's the Senate majority whip, of course, Republican of the beautiful state of South Dakota.

Senator, very good to have you.

This process of the timeline, are you OK with it?

SEN. JOHN THUNE (R-SD):  Well, thanks, Neil. It's nice to be with you...

CAVUTO:  Same here.

THUNE:  ... and on another just ho-hum Monday in Washington, D.C.

(LAUGHTER)

THUNE:  Yes, I am comfortable with it.

I think that, if you look historically, it's been pointed out, John Roberts and Chad both talked about, and the leader on the floor this afternoon talked about the historical precedent whenever you have a vacancy in an

election year.

And when there is a time of divided government, obviously, that's a different circumstance than when you have the party in the White House and the party controlling the Senate being the same political party, which is what we're faced with right now.

And if you think about it, Neil, really, the 2016 election was about the Supreme Court. And the 2018 election was about the Supreme Court. It was it was the Kavanaugh confirmation process. People voted on that. In '16, they voted on the Supreme Court. They elected a Republican president and a Republican Senate.

And it's now our obligation to make sure that we follow through on our constitutional duty and role. And that is to move forward with filling those important seats on the high court.

CAVUTO:  All right.

Well, as you know, a lot of people have looked at Mitch McConnell's 180 on this and other Republican senators, that what applied to Barack Obama won't apply now, and that that rationale, that the party being in the same column as the White House just doesn't -- doesn't hold.

Now, I might point out as well, Senator, Democrats who argued strenuously for an immediate confirmation process for Merrick Garland are the same ones who are saying, hold off.

THUNE:  Right.

CAVUTO:  So I understand that.

But I do want to get from you what you think of your colleagues Lisa Murkowski and Susan Collins -- others could follow -- who don't think now's the time to do this.

If you go ahead, and it looks like Mitch McConnell and your leadership, obviously, yourself, continue this process, and they don't want in on it, what do you do? What if they just say, all right, I'm sitting this one out? A, can they sit this one out?

THUNE:  Well, I mean, in the end, it comes down in the Senate to 51 votes.

And we have -- we're going to have an opportunity to discuss with our colleagues, as they all come back into town today and tomorrow, a chance to really discuss timing and process and everything else, so that -- those discussions are ahead of us.

But -- and we may have members who end up in different places with respect to those questions.

But, in the end, it comes down to whether or not we have 51 votes. And what the leader has indicated is that this nominee, whoever the president ends up, is going to receive a vote on the floor of the United States Senate.

And I would certainly hope, if and when that time comes, that we will have the 51 votes that are necessary to confirm that nominee. But we're going to have a discussion about that. We have got members who, in the past on different court nominations, have taken different positions.

But, really, it comes down to the math. And the number is 51, or 50, if you have the vice president.

(CROSSTALK)

CAVUTO:  Right. Assuming you lose three Republicans, you could still have the tiebreaker in Vice President Pence.

And that is assuming that not a single Democratic senator votes for the nominee. There's a possibility Doug Jones, in his own sort of kind of weird position in Alabama, could be such a vote, but we don't know.

But let me understand where you see the process itself going. Mitch McConnell has been apparently arguing to those who were looking to oppose this move within the party ranks, keep your powder dry, anything can and will happen, and we understand the Susan Collinses and all, who are facing a tough reelection fight, mainly because of that deciding vote for Justice Kavanaugh.

I'm wondering if it's the passions it ignites within the party that are going to trump that, in other words, pun intended, that that's the message that the party leadership is giving these senators who might balk, that you might get more out of this being part of it and voting for whoever the president nominates than criticizing it?

What do you say?

THUNE:  Well, I don't think there's any question, Neil, that, on our side of the aisle, and Republican voters and Republicans generally around the country, this is an issue that generates great passion, because they have looked at the last several decades at an activist court that is trying to act as a legislative body, rather than as a judicial body.

And so getting constitutionalists on the court who will observe the rule of law and the Constitution has been -- has been really a rallying cry, I would say, for Republicans across the country for a long time.

And I think that's why our members are very passionate about it. And if you talk to most senators -- and, like you said, I can't speak for all of them, but a lot of them, myself included, ran for this job to do this sort of thing. We ran because we wanted to be in a position to help move the court in a direction that restored its judicial restraint and made sure that it acted in a way that was consistent with what the Constitution and our founders designed for the Supreme Court.

And so that's something that I think does motivate a lot of our Republican senators. I think it motivates a lot of Republican voters around the country. Obviously, the Democrats on the left, they're going to be very passionate about this as well.

But I think it's -- if you're -- if you're looking for a place to land, as a Republican senator in this debate, obviously, being supportive of fulfilling our constitutional duty and moving forward with this nomination is certainly a good place to be.

CAVUTO:  All right, Senator Thune, good catching up with you on this.

I think you guys are going to be a tad busy. We will see how that all goes.

THUNE:  We are.

CAVUTO:  Senator John Thune on all of these developments.

As the senator was speaking to us, we're getting word around the president exchanging some comments with reporters before he boards Marine One. He has a political trip out to Ohio tonight, where he's whittled his list down. He's looking at several women, at least two women. The other reports had as many as five.

That announcement would come Saturday, and that he's very confident a vote could be had before the general election. We shall see.

More after this.

(COMMERCIAL BREAK)

CAVUTO:  We are still monitoring the president. He is talking to reporters right now outside Marine One before heading off to Ohio tonight on a campaign event.

He did say something that piqued our interest, though. He did talk once again about the idea of having a list of at least five women to fill the position of Ruth Bader Ginsburg on the Supreme Court, said that he may meet the possible Supreme Court pick when he goes to Miami this week.

That raised some eyebrows, because among those he is considering is Barbara Lagoa. She is -- she's a former member of the Florida Supreme Court. So, that made us think, well, is there that connection, that he could be tapping this Cuban American who checks off a lot of boxes politically, of course?

We just don't know. Also on that list is Amy Coney Barrett of the Seventh U.S. Circuit Court of Appeals. But, again, it was that Florida connection that caught our eye. Might be nothing at all, and would be around the time that he would be making up his mind and making an announcement.

So it's perfectly natural, whoever he chooses, he would be doing it while he's out campaigning, and in this case in Miami on Friday. So we're following that.

We're also following the crazy ups and downs this has generated on the corner on Wall and Broad, confusion over that Supreme Court pick and how it's going to go and how it might push other matters sort of down the bench, no pun intended here, including a stimulus measure that's sort of stuck in park, and a measure to avoid a government shutdown.

Suffice it to say the Dow was careening for a while today. I'm just saying it looks still pretty bad with a loss of over 500 points. But I should point out we were down close to 1,000 points, the S&P, the Nasdaq also down, in the case of the Nasdaq, well into correction territory right now, down about 13 percent.

But all the major market averages did rebound by day's end, a lot of technology beaten-down names did come back.

But, having said all of that, a lot of those same names, forget about in correction territory, the likes of Amazon, Apple, Facebook, a host of others, they're no darn near bear markets, because they're about 20 percent or close to that from their highs.

But I stress, as Susan Li, our FBN star, will remind you, those highs were reached little more than a couple of weeks ago. She joins us on what happened today.

Hey, Susan.

SUSAN LI, FOX NEWS CORRESPONDENT:  So, we're back down to July levels.

And you're right. At its lows today, it was looking like the worst day for the Dow since early June. We have rising COVID cases in Europe. Fears of a second lockdown that could spread here to the U.S. hit travel stocks like airlines cruise lines and hotel names, big losses in the session.

Meantime, Justice Ginsburg's death means a contentious final days heading into the November votes, with a looming battle over Supreme Court confirmations. That leaves little hope for agreements on a second stimulus plan. Stocks are tied to a recovering U.S. economy, dependent, yes, on another stimulus round, but materials, energy and even retailers sold off.

Meantime, you had bank stocks. They were crushed today, after a scathing  report found more than $2 trillion worth in drug money, money laundering and other illicit forms of cash were funneled through the U.S. financial system by some of the biggest names in banking, including Deutsche Bank, J.P. Morgan and HSBC.

And that dragged down the entire financial sector on Wall Street today. So, with the losses on Monday, we have the broader S&P down around 7 percent on this month, on track for its worst September in nine years.

Now, historically, Neil, September is the weakest month of the year going back to 1950. And in election cycles, according to researcher Piper Sandler, going back to 1900, you tend to have gains from May to mid-September and then stalling out in October.

And they also point out that, when the Dow is up in the three months before the election, the incumbent typically wins 80 percent of the time.

But, as you know, Neil, this year is not a typical year.

CAVUTO:  Not at all.

All right, thank you, Susan, very, very much.

Ted Weisberg, encyclopedia on all these developments over the many, many years, he was there for the 1880 Supreme Court fight, as everyone remembers.

(LAUGHTER)

CAVUTO:  That went back and forth, back and forth.

No, he wasn't.

Ted, it's good to see you. How you doing?

TED WEISBERG, PRESIDENT, SEAPORT SECURITIES CORPORATION:  I'm doing good, Neil. How are you?

CAVUTO:  I'm fine, my friend. And thank you for coming here.

So, market perspective, people get antsy when they see stuff like this. Plenty to get antsy about, the uncertainty over stimulus, the uncertainty over government shutdown, the uncertainty Supreme Court shutdown, the uncertainty over spiking cases in the coronavirus globally.

What do you make of all this?

WEISBERG:  Well, we know that what markets love to climb walls of worry, Neil, but, sometimes, those walls get a little slippery.

And, clearly, today was an example of that. Now, even though we were down 1,000, and climbed out of that hole a little bit, down 500, it's still a pretty ugly day.

I just think that the markets just always have difficulty dealing with the unknowns. And we have had plenty of unknowns. You just mentioned them, the latest one being the Supreme Court, and it just becomes too much for the market.

And now, with the election just a few days away, no stimulus package, the economy actually not doing so bad, it becomes very difficult. Perhaps the market was a little overbought short-term. So it's giveback time.

But I do think that, at the end of the day, the one given is the Fed. And the Fed continues to be the 800-pound gorilla in the room. The Fed is in a stimulus mode. The Fed's actions are stock market-friendly. And at the end of the day, it's the Fed that's going to carry the heavy water.

And so I wouldn't get too bearish too soon here.

CAVUTO:  You know, a lot of people have been bouncing into these markets when we came through that jittery phase just a few weeks ago. We experienced it all over again last week, with a little bit of hiccuping here and there.

So they begin to think, gee, maybe I shouldn't be dabbling in this. It's entering a risky phase. It's close to October. You're right. September is the worst month statistically.

But what do you tell people about their time horizon, perspective, keeping cool, keeping calm? What?

WEISBERG:  Well, I think keeping cool and keeping calm is always a thing to do.

It all depends on investors' time horizons and where they are in that cycle. I think history has proven, if you go back and look at Dow Jones chart of the Dow back to 1900, allowing for all the dislocations and all the difficult periods of time, the trend is quite clear. And that's up.

So, those folks who have long-term horizons, I think the volatility clearly creates opportunities. It's a timing game. And, unfortunately, they don't ring a bell, they don't tell us when to get in, they don't tell us when to get out.

This is, after all, a risky business. It's always been a risky business. And people have to take that into consideration.

CAVUTO:  All right, long-term for me, though, at my age, Ted, has gotten to be dinner tomorrow. So, I get anxious. You're telling me to calm down, right?

WEISBERG:  Well, look, listen, long-term for me, I don't even buy green bananas anymore.

(LAUGHTER)

WEISBERG:  But, yes, I think...

CAVUTO:  Got it.

WEISBERG:  I think we have to learn, as investors, to use the volatility to our advantage.

And then it becomes a timing game. Unfortunately, there is no road map. And, at the end of the day, you just have to be able -- be willing to assume a certain amount of risk to achieve long-term goals, which should be positive.

CAVUTO:  All right, thank you, my friend. Always good talking to you.

Stay young, Ted Weisberg, Seaport Securities. He's seen many crazy currents in these markets, and good perspective there.

Also want to let you know about the virus. That was another one of the agitating developments today, reports out of Britain that, beginning tomorrow night, they're going to put a 10:00 p.m. curfew on pubs.

So, this, of course, comes as the country has seen a spike in cases, and reports that it is considering yet another lockdown, this as Israel is doing the same, the second time in about four months it's facing that, in the High Holy Days, no less, and parts of France contemplating doing the same.

None of that seems to be happening here. So, this seems to be an anomaly to what's going on in Europe.

But Dr. Tom Frieden joins us right now, the former CDC director.

Doctor, what do you make of what's going on over there? It seems like they had this under control. Maybe they, by and large, do. But these spikes are worrisome enough to warrant some pretty tough restrictions again. What do you think?

DR. THOMAS FRIEDEN, FORMER DIRECTOR, CENTERS FOR DISEASE CONTROL AND PREVENTION:  Neil, fundamentally, the virus is still out there.

And any time we're not careful, it can come back to bite us. There's no fairy tale ending for this pandemic, not even a vaccine, if and when we have one. What we have to do is chip away at the risk and be ready to adapt.

And that means making sure we follow the three W's, wear a mask, watch your distance, wash your hands. It's clear that we have to do strategic testing, rapid isolation, contact tracing. All these things together chip away at that risk and enable us to get more of our activities back sooner, and to keep them back, because if we just rush back in, we have to rush back out again.

And that's what you're seeing in some places around the world and some places around the U.S.

CAVUTO:  I was confused.

I remember, when all this start in the beginning, there was hope because of the warmer weather that things would ease up and the number of cases would also slow, if not reverse. Now I'm told it's just the opposite. Ahead of the colder weather, people are looking to that to ease this and maybe help in Europe, as it could help here.

What's the real skinny on this? What is and who is accurate?

FRIEDEN:  Yes.

I was very dubious in the spring, when people are saying, it's going to be better in the warm weather. This is a new virus. We haven't dealt with itbefore. It's not like flu. It's more infectious than flu. It's less

infectious than measles. Maybe it will be worse in the cold weather.

One of the things that I wonder about is, when you see all of these outbreak in meatpacking factories, not just in the U.S., but in Europe also, that's kind of an artificial winter. And does that suggest that we may see more disease there? Maybe. We don't know.

What we do know is that we have a lot of control. How much COVID spreads depends on us. It depends on how long you spend indoors in poorly ventilated places, with people who have been in places with a lot of COVIDand aren't wearing masks.

So, if you take all of those risk factors, and, one by one, you chip away at them, wear a mask, be outdoors more, limit your time indoors near a lot of people, you can make a big difference.

Neil, the U.S. response to this has, sadly, failed. We have tens of thousands of deaths that didn't have to happen. We have millions of job losses that didn't have to happen, if we had just had an organized, fact-based, systematically-implemented response. And we still lack that even today.

But it's not too late.

CAVUTO:  All right. We will see.

I think the president will disagree with that notion, Doctor.

Thank you anyway, Dr. Tom Frieden.

The president talking to reporters a while ago, before heading off.

Let's listen.

(BEGIN VIDEO CLIP)

DONALD TRUMP, PRESIDENT OF THE UNITED STATES:  We have been doing very well with the China virus, but they've had a pretty big spike in Europe, as you know, and UK in particular. And I'm sure they'll have that under control, hopefully soon.

But we're in very good shape. The vaccines are coming along. I just got a report:  The vaccines are coming along rapidly. Therapeutics are coming along very well. And we'll see what happens. But too bad about Europe. Too bad.

QUESTION:  Is there a chance you would announce your Supreme Court pick before Friday?

TRUMP:  I would say on Friday or Saturday I will be announcing the pick. It's -- five women are being looked at and vetted very carefully. Five. And we'll make a decision probably Saturday, but Friday or Saturday.

QUESTION:  Do you plan to meet with any of them in person? Do you plan tomeet with any of them in person before you make your decision?

TRUMP:  Yeah, I will.

QUESTION:  When are you going to do that?

TRUMP:  During this period of time.

QUESTION:  Do you think all five?

TRUMP:  I don't know. I doubt it. I doubt it.

QUESTION:  But in person?

TRUMP:  We'll meet with a few, probably.

QUESTION:  Have you talked to any of them yet?

TRUMP:  Say it?

QUESTION:  Have you talked to any of them yet?

TRUMP:  I have. I have.

QUESTION:  Today? On the phone?

TRUMP:  Today and yesterday, the day before.

QUESTION:  Is it better to have a vote on your nominee before the election or after?

TRUMP:  Well, I'd much rather have a vote before the election because there's a lot of work to be done, and I'd much rather have it. And we have plenty of time to do it. I mean, there's really a lot of time.

So let's say I make the announcement on Saturday -- there's a great deal of time before the election. That'll be up to Mitch in the Senate. But I'd certainly much rather have the vote. I think it sends a good signal. And it's solidarity and lots of other things. And I'm just doing my constitutional obligation. I have an obligation to do this. So I would rather see it before the election.

QUESTION:  Are you worried about some senators -- Republican senators who may be a little reluctant?

TRUMP:  Well, we'll have to see. I would think that that would be very bad for them. I think their voters -- the people that voted them put them there because of a certain ideology or certain feel. And they don't want to have somebody do that. I think it's very bad if they do that.

QUESTION:  What makes you think that the last words -- supposedly the last wishes of Justice Ginsburg were made up? Because it supposedly came from her granddaughter, not from one of the Democrats.

TRUMP:  Yeah, it just sounds to me like it would be somebody else. I don't believe -- it could be. It could be. And it might not be, too. Just too -- it was just too convenient.

QUESTION:  What would be your concern if the vote happened after Election Day?

TRUMP:  No concern. I just think it would be better. They asked, Would I rather have it. I'd rather have it before the election. I think it would be better for our country.

And we -- we'll pick somebody that's outstanding, very qualified. They're all qualified, but somebody that is outstanding. And I'd rather see it all take place before the election, so before November 3rd.

QUESTION:  Are you concerned if you lost the election, it would be harder to get the person confirmed?

TRUMP:  No, I don't think so. No. I think we're going to win. If you look at the polls -- the real polls -- we're doing very well.

We're going to Ohio tonight, and we're packed. We're packed everywhere. So people -- there's never been -- we've never had spirit like we have now. Even four years ago, the spirit now is greater even than it was four years ago.

QUESTION:  What will be your message tomorrow to the U. N. ? And did you just tape it?

TRUMP:  I did. I just taped -- I just did it just now. My message is a strong message on China, and basically -- you'll see it. You'll see it tomorrow. But I just did it a little while ago.

QUESTION:  Are you leaning toward one candidate over another? Are you leaning toward...

TRUMP:  I have one or two that I think are -- they're all outstanding, but I have one or two that I have in mind, yeah.

QUESTION:  Who do you think poisoned Alexei Navalny?

TRUMP:  Say it?

QUESTION:  Who do you think poisoned Alexei Navalny in Russia?

TRUMP:  We'll talk about that at another time.

QUESTION:  Is Amy Coney Barrett one of the leading contenders, in your mind?

TRUMP:  She's one of the people that's very respected, but they're all respected. She is certainly one of the candidates, yes.

QUESTION:  When you go down to Miami, will you meet with Barbara Lagoa?

TRUMP:  I may. She's highly thought of and has got a lot of support. You know, a lot of people -- I'm getting a lot of phone calls from a lot of people. She has a lot of support. I don't know her, but I hear she's outstanding. And she's one of the people we're looking at.

QUESTION:  Did you push the DOJ to name Seattle and New York and Portland anarchistic cities?

TRUMP:  Well, I think they are. But that's up to DOJ. That'll be up to -- that will be up to the Attorney General. But certainly they are. If you look at Portland, if you look at what's going on there, what a mess.

Go ahead.

And we can straighten it out -- all Democrats. All radical left. We could straighten it out so fast.

Go ahead.

QUESTION:  When will you make a final decision on TikTok?

TRUMP:  That's working its way through. I've given a preliminary OK. They will work -- they're two great companies -- Oracle and Walmart. Larry Ellison is a -- you know, a great genius at that kind of thing. The

technology is incredible.

And so if we can save it, we'll save it. And if we can't, we'll cut it off. But they have preliminary. We'll see what they can do.

We have to have total security. That's the only thing -- very important. We have to have total security.

I will see you in Ohio. Thank you.

QUESTION:  Thank you, sir.

(END VIDEO CLIP)

CAVUTO:  All right. All right, we had some technical issues there, but you got the gist of that.

The president is going to continue with this process of whittling candidates down, five women that he's looking at right now, that he could have an announcement by Friday or Saturday, might include a meeting with one of the women he is considering.

Obviously, a great deal of attention as soon as he said that he was going to be in Miami. Barbara Lagoa's name came up, of course, she a member once of the Florida Supreme Court. He had some good things to say about Amy Coney Barrett, who was in the final list when Justice Kavanaugh was ultimately chosen and ultimately confirmed. It was a close confirmation process.

But he still wants to get that process going right now. And it will be going right now.

Joe Biden not talking as much about the Supreme Court situation today, a lot of other things, but not that, at least not so far today.

Peter Doocy with the vice president. He's been campaigning with him in Milwaukee, Wisconsin -- sir.

PETER DOOCY, FOX NEWS CORRESPONDENT:  Neil, good afternoon.

Joe Biden's event today at an aluminum foundry was closed to the public, but he was in close enough quarters with members -- with invited guests, rather, that, to adhere to a statewide regulation indoor events, he kept a face mask on the entire time he was talking.

And this event also revealed a lot about what the Biden campaign thinks swing state voters really care about, because he talked for about a half-an-hour, never mentioned the vacant Supreme Court seat, instead focusing on manufacturing jobs and COVID-19.

(BEGIN VIDEO CLIP)

JOSEPH BIDEN (D), PRESIDENTIAL CANDIDATE:  I worry we're risking becoming numb to the toll that it has taken on us and our country and communities like this.

We can't let that happen.

(END VIDEO CLIP)

DOOCY:  The vacant Supreme Court seat and questions about who should fill it consumed Biden's weekend in Delaware and Philadelphia, but, again, were not prominent at all in battleground Wisconsin so far, where Biden came a few weeks ago to talk about healing post-riot Kenosha, but, today, the talk  about Kenosha was absent from the program as well -- Neil.

CAVUTO:  Wild.

All right, Peter Doocy, thank you very, very much.

Want to go to Maryland Democratic Senator Ben Cardin on all of this.

Senator, thank you for taking the time.

Were you surprised that the former vice president didn't even mention this

Supreme Court dust-up today?

SEN. BEN CARDIN (D-MD):  Neil, first, it's good to be on your show.

CAVUTO:  Same here.

CARDIN:  And I heard the vice president talk about this, I think,

yesterday. So, I know he has responded.

And I agree with the vice president, and that is that this nomination should not take place until after the elections. The person who is elected president in November should be making this appointment.

This is the height of hypocrisy. Look what Mitch McConnell said and many of the Republicans that are now in the Senate said four years ago, when, in February of an election year, we had a vacancy, and President Obama nominated a nominee, Merrick Garland.

And the Republicans said, no, you can't do this in an election year. You got to listen to the voters before you deal with it. Now, in September, it's a different story.

So this is the height of hypocrisy.

But I think what the vice president is pointing out, and I think which Americans are pointing out, is that the Senate should be concentrating on dealing with COVID-19, dealing with health care, dealing the critical problems we have in this country, and that we should wait until the voters speak before we take up the Supreme Court nominee.

CAVUTO:  Well, that wasn't the view of a lot of Democrats. I don't know where you were on this, Senator, four years ago, that it's a president's prerogative to do so no matter what point in an election year.

And the fact of the matter is, that that was -- that was fine then, because the opposite was being held by Mitch McConnell. So, aren't both sides playing fast and loose with these facts?

CARDIN:  No, not at all.

First of all, this occurred in February for President Obama. We're now in September, and voting has already started in some states.

Secondly, the Republicans changed the rules on the nomination of the Supreme Court justice, eliminating the 60-vote threshold. So, they have taken steps to move the Senate away from its traditional comity between the two parties.

So, no, I don't...

CAVUTO:  So, what do you think has to be done, Senator?

Your colleague, your colleague Ed Markey of Massachusetts has said, theykeep pushing this, the filibuster thing is up in the air, the whole issue of how far you can go, and maybe we should pack the court, that's going --we're going to go full throttle with that.

This sounds like each side going nuclear.

CARDIN:  Right.

And, Neil, you know me well enough to know that I really want to see the system work. I'm going to be talking to a lot of my Republican colleaguesduring the next few days and weeks to encourage them that, look, we have got to get back together on this. This is the wrong course. You know it is.

You do not have enough time to take up a nominee before the election, and the voters should speak, and the next person whose who is elected president...

CAVUTO:  Well, it has been done, right, Senator? It has been done. Whatever side you're on, I understand that.

(CROSSTALK)

CAVUTO:  But, 25 times, presidents have put nominations put in an election year. Twenty-one times, the Senate has confirmed those nominees, half-a-dozen by presidents who were -- they were one-termers. They were lame ducks. So there's plenty of precedent.

CARDIN:  Not a vacancy in September. That has not happened in, I think, over 100 years.

So, no, that has not happened in recent times at all. And we have had -- the comity rules about nominations in the last...

CAVUTO:  But a lame-duck session of Congress has decided -- in the past, a lame-duck session of Congress has decided. I'm not trying to play political one here or the other.

But there is precedent for this sort of thing. And we do know now, sir, that you're quite right to say that the confirmation process has gotten far longer, far more agitated, far more controversial, votes much closer.

But, from January 20, 2017, to January 20 of 2021, we have this president and we have this Senate. So, we have this nominee at this time. So, what's wrong with just giving it a go?

CARDIN:  Well, again, I go back to where we were four years ago, and look what Mitch McConnell did that. Look what they said.

I trust senators to...

(CROSSTALK)

CAVUTO:  But, if you left that aside -- I understand where you're coming from. If you left that aside, what would you do?

CARDIN:  They were asked a specific question, Neil, the specific question:  If this was reversed, if it was a situation where you had a Republican president and a Republican Senate, and there was a vacancy in the election year, would you move to confirm?

And they said no. They said that four years ago.

So, what -- are you trying to tell me that a senator's word means nothing? They told us, they told their voters that they would do the same if it was a Republican president.

And now look how many are saying just the opposite.

CAVUTO:  Well, I have heard -- but I have heard Chuck Schumer just, in an election year, you cannot do this, what you're doing to this president four years ago. Now he's saying it can wait.

So, I guess both sides' words, I guess, can be a little specious, right?

CARDIN:  Well, it's not -- you see what the Republicans have done with the filibuster rule for the Supreme Court nominee?

This is September. Voting has already started. There's a big difference between a February vacancy and a September vacancy, after we already have our nominees and we have already started the election process itself.

No, this is wrong. And this is not a Democrat telling you this. This is the wrong thing for the United States Senate. It's the wrong thing for the American people. Let the voters have an opportunity to be heard.

CAVUTO:  All right, We shall see.

Senator Cardin, very good having you, Ben Cardin of Maryland, who sits on the Small Business and Entrepreneurship, ranking member, much, much more, Senate Finance Committee, et al.

All right, so we have a lot riding on this. And, as the senator pointed out -- and we heard from Senator Thune, a Republican a little earlier -- both are very passionate about where they're coming from as to the timing of all of this.

Then there are those protesting. And they are, well, full of you know what and vinegar because of this.

(COMMERCIAL BREAK)

CAVUTO:  All right, so what if it's not the economy, stupid, or the virus, stupid; it's filling this Supreme Court seat now left vacant by the tragic death of Ruth Bader Ginsburg?

Let's get the read on all of that from Frank Luntz right now.

Frank, this emerges as a pivotal issue? What do you think?

FRANK LUNTZ, POLLSTER:  It is going to be a critical issue, but how critical depends on how the president frames it.

I want to be clear about this, because everyone is already angry and blaming the other side for crimes that have not yet been committed.

Number one, the public believes that the Supreme Court must function in a nonpartisan, nonideological way to do its job. Number two, we have the most contentious election coming up in 40 days, and we need a full Supreme Court.

Number three, it is -- and I heard your debate, your discussion so far. And the public would have some concern if the president seeks to force somebody through.

However, if this is done to give a 5-4 vote, if it is done because eight judges deadlocked at 4-4 is not going to answer anything in terms of this selection, if it's done for the right reasons, it will help the president.

If it's done for the wrong reasons, it will work against him.

Neil, framing, context is everything over these last 40 days. And if the president wants to get the American people behind him, both for a Supreme Court choice and for presidential election, he's got to pay a lot more attention to his language, because he himself is his own worst enemy. He

himself is his own worst opponent.

CAVUTO:  But if this was such an important issue, you would think that Joe Biden today would have mentioned it.

And I know he has spoken out about the need, let the American people decide on their next president, let that president decide on a Supreme Court. Justice. I get that. But he -- I'm wondering, by not mentioning this today, is it a negative? Is some internal polling going on within the Democratic Party that has them worried about it?

LUNTZ:  No, I think it's exactly the opposite, that Joe Biden is doing a very smart strategy, to stay out of it while everybody else fights about it and makes themselves look petty, look partisan, look political.

I think it's smart for Biden to keep quiet for a day and see how everything shakes out.

I think that the Democrats look awful. And, by the way, I have heard a debate -- a deal that is in the works that would offer the Republicans no nuclear option in terms of filibuster, no change in the filibuster rules for the first two years, in return for the Republicans waiting until after January 20 to appoint a justice.

And that's a pretty powerful deal. If the Democrats remove the filibuster, it means you're going to get D.C. statehood, Puerto Rico statehood. It means that you can change the size of the courts.

But if they wait until after the 20th of January, it means that you're going to lose, potentially lose a Supreme Court nominee, but you won't change the whole process of the Senate. And that won't allow some of the most extreme legislation to get through.

It's an interesting deal. It's something that the Republicans at least should consider.

CAVUTO:  But don't they think consider more the appealing prospect of a 6-3 conservative court more than a 5-4 conservative court? Isn't that what wins out for conservative?

LUNTZ:  Absolutely. Absolutely.

And, Neil, a 6-3 Supreme Court really does make a difference in the legal system of the country. It really does make a difference in how we are governed.

However, losing the filibuster and allowing legislation to pass with 50 votes, plus the vice president breaking the vote, assuming that the Democrats might win in November, changing that filibuster rule is going to change the character of the legislation. It's going to change the character of the country.

We cannot go nuclear on every single issue, and basically do all that we can to make these really dramatic political changes, without having the public in this process. And that's what an election is supposed to do.

I understand what Mitch McConnell is doing. I understand why partisan Republicans want to push this through. All I say, Neil, is that, from a news perspective, from an information perspective, voters have to decide what they want, what is important to them, not just in the short term, not just for a few months, but for a few years or even for decades.

And if we lose the filibuster, then we lose the ability to put a check on whomever the president is. And if we force a decision right now, make no mistake, this will be done against the Republicans over the -- over the coming years.

CAVUTO:  Yes, we will have to watch it.

The flip side of that is, you don't begin to process until January 20 of next year, and if there's a case that goes to the Supreme Court based on a controversial election, as they had in 2000, all bets are off.

But you raise some interesting prospects here.

Frank, I want to thank you very, very much, Frank Luntz on that.

We have the labor secretary of the United States with us, not so much to raise economic or labor-related issues, but, since his last name is Scalia, we thought he would, well, talk about something else -- after this.

(COMMERCIAL BREAK)

CAVUTO:  Remembering Ruth Bader Ginsburg.

You know, when she made it to the high court after being picked by Bill

Clinton, the vote in her support was 96-3. Just think of where we were even four years ago, after Justice Antonin Scalia died, when he was picked by Ronald Reagan for the Supreme Court, the vote there 98-0.

His son joins us right now, Eugene Scalia, of course, now the labor secretary of the United States.

Secretary, very good to have you. Thank you for coming.

EUGENE SCALIA, U.S. SECRETARY OF LABOR:  Good to join you, Neil.

CAVUTO:  You know, I was thinking about your dad and your family and, four years ago, after he passed away. And, of course, that led to the whole Merrick Garland thing, and a Democratic president trying to work with a Republican Senate. We all know what happened, of course.

But I only mention it now, Secretary, because we have got these musings from Ruth Bader Ginsburg that she didn't want Donald Trump to pick -- to pick her successor. She wanted, obviously, a Democratic president.

And I don't want to be macabre here, but when your dad was alive and vibrant, did he ever wonder about that; oh, my gosh, if I pass away during a Democratic administration, it's going to be a liberal justice who replaces me?

Did any of this stuff ever come up?

SCALIA:  Well, Neil, again, it's good to join you. And it's good to have an opportunity...

CAVUTO:  Same here.

SCALIA:  ... to talk just a little bit about Justice Ginsburg, and also the relationship she had with my father, which was really a terrific friendship, And one I really welcome a chance to honor for just a few  minutes.

In terms of justices thinking about their replacement, I -- that's sort of an area of speculation that I did not want to get into. When my father -- when my father died, I think our family thought that we should just leave that to the process.

And I'd like to honor that here as well, in these days...

CAVUTO:  That's fine.

SCALIA:  ... before there's been a nomination made.

But, having said that, I think that it's natural for a justice to hope to be replaced by somebody that agrees with them and that will act in a way that's respectful toward the decisions they wrote, the precedents they established. But, obviously, that's not how we pick justices.

CAVUTO:  Yes.

And gone are those days, in the case of your dad, a 98-0 vote, a 96-3 vote in the case of Justice Ginsburg. That wasn't all that long ago. And I'm just wondering, the fact that they were so uniquely warm and pleasant with each other, that they strongly disagreed on a number of issues, but never were disagreeable or even remotely nasty.

They'd have some barn burner dissents of opinions that would come out. Each were very good linguists and all of that. But I tell you, Secretary, I look at what's going on now, that seems like a foreign concept.

SCALIA:  Well, let me say a couple of things about that, Neil.

The first is that, unfortunately, the Democratic Party has been a lot harder on Republican presidents' nominees over the years than the Republican Senate has been to Democratic nominees.

So, you're right that my father and Justice Ginsburg both were confirmed by wide margins. But in between was Robert Bork, who was treated horribly by Senator Kennedy and others.

CAVUTO:  You're right. You're right.

SCALIA:  We could look at the Breyer nomination, where he too received a strong majority. He was wonderfully qualified. So was Justice Ginsburg.

But so was Sam Alito, who some senators, including one who became president, threatened to filibuster. And John Roberts got more grief than one would have expected from somebody that qualified.

By contrast, Justice Sotomayor and Justice Kagan did not have the same kinds of problems.

So, it's -- it -- the process has gotten more difficult over time. And, certainly, there are times when the Republican Senate has not treated particular nominees -- and I'm not going to comment on any one in particular, but there have been times they have not treated them as you would want.

But I have got to tell you, I think that the Democrats have been harder on Republican -- Republican presidential nominees over time.

And, then, to your other point about the relationship that my father and Justice Ginsburg had, they were friends. And they were friends for all kinds of reasons, like they worked at the same place, had the same job, liked music...

CAVUTO:  Right.

SCALIA:  ... and were New Yorkers.

But the other thing they had in common, which I think is an important lesson for people today, is that they liked to debate. They weren't friends despite their different views. They were friends, I think, in part because of them, because my father wanted...

CAVUTO:  Good point.

SCALIA:  ... to test his ideas against hers.

CAVUTO:  All right.

SCALIA:  And she wanted to test her ideas against his.

CAVUTO:  I miss those days.

Secretary, thank you very, very much, Eugene Scalia, the Labor secretary of the United States. I think his dad would be very, very proud.

All right, we leave you with a Dow that was shattered today, but it was shaken up a lot more earlier. We'll see what happens tomorrow.

That'll do it here.

Here comes "THE FIVE."

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