The battle for the Supreme Court

This is a RUSH transcript from "The O'Reilly Factor," February 15, 2016. This copy may not be in its final form and may be updated.
Watch "The O'Reilly Factor" weeknights at 8 p.m. and 11 p.m. ET!

ERIC BOLLING, FOX NEWS HOST: Hi, I'm Eric Bolling in for Bill O'Reilly. Thanks for watching this O'REILLY FACTOR: Election 2016 Special.

We're going to go right to our top story, the battle for the Supreme Court. The sudden death of Justice Antonin Scalia, creating one of the biggest political fights in years over whether President Obama should nominate Scalia's replacement or leave it to the next president. President Obama is leaving little doubt about where he stands.


BARACK OBAMA, PRESIDENT OF THE UNITED STATES: I plan to fulfill my constitutional responsibilities to nominate a successor in due time. There will be plenty of time for me to do so and for the senate to fulfill its responsibility to give that person a fair hearing and a timely vote.


BOLLING: Meanwhile, the Republican presidential candidates are wasting little time drawing their own lines in the sand.


DONALD TRUMP (R), PRESIDENTIAL CANDIDATE: I think it's up to Mitch McConnell and everybody else to stop it. It's called delay, delay, delay.

SEN. TED CRUZ (R-TX), PRESIDENTIAL CANDIDATE: We are one justice away from a Supreme Court that would undermine the religious liberty of millions of Americans and the stakes of this election for in year, for the senate. The senate needs to stand strong and say we're not going to give up the U.S. Supreme Court for a generation by allowing Barack Obama to make one more liberal appointee.

SEN. MARCO RUBIO (R-FL), PRESIDENTIAL CANDIDATE: Mitch McConnell has already made it very clear that we are not going to move forward until there is an election. And I think that's the right decision. The court can function with eight justices in the last year, within the last few months of the President's term. We should not be appointing Supreme Court justices.


BOLLING: Joining us now from Washington with reaction Fox News contributor Mary Katharine Ham and with me in studio Juan Williams my co-host of "THE FIVE".

Juan -- there are four questions. Will he? Should he nominate? Will they? Should they delay?

JUAN WILLIAMS, FOX NEWS ANALYST: Let's start with will he and should he? He should. That's his responsibility as president of the United States. That's what the constitution says that he should nominate and the senate should advise and consent. In this case have hearings and have a vote.

BOLLING: He should. So will he now?

WILLIAMS: Yes. And he will. And he said it.

BOLLING: Mary Katharine, now let's take the senate. Will they and should they go ahead and delay this nomination, whoever it may be, whomever it may be?

MARY KATHARINE HAM, FOX NEWS ANALYST: Look, it's perfectly within the rights of the President to say here is who I would like. And it's perfectly within the rights of the Senate to say yes, we will see what we can do about that. That's the process.

And it's far from standard operating procedure to name somebody during an election year who will fundamentally change the ideological balance of the court when we have already started voting for a new president. The process has begun already.

I do think there's plenty of precedent to say hey, we're going to stop including, by the way, t1he Democrats own pattern of aggressing when it comes to judicial nominees -- Borking which is the verb for personally assailing a nominee. Nuking the filibuster when it suited them and using the judicial filibuster when it suited them under Bush. There's plenty of precedent here for going hard on this issue and for sticking to their guns.

BOLLING: And sticking -- Mary Katharine, let's stay on you. The politics -- what will it be perceived? In other words people have accused the Republicans of being obstructionists in the past. If they do it one way they can be clearly seen as obstructionists if they say we're not even going to hear this.

What about if they just listen and say ok, let's talk about this nominee and let's draw this out a little bit?

HAM: I think listening if fine. Frankly they did a fine job with Sotomayor and Kagan. Some argued for filibuster, I argued against it. They ended up doing that very smoothly with plenty of votes.

This is a different situation and a different year. There's a Republican Senate for a reason because they won a bunch of seats because a punch of people were mad at President Obama. So there's plenty of backup from the voters to say hey, hey, hey, let's chill and look at this for a minute.

WILLIAMS: Yes. And that's exactly the reason why you should have this go forward because guess what there are lots of people who voted for President Obama twice to be president for eight years not seven years and a few months but eight years. And under the terms of that vote the people have spoken about who is to nominate a Supreme Court justice.

Mary Katharine, let me say I don't agree with what you just said about Democrats being aggressive in terms of handling nominees. I recall not only was Justice Kennedy approved in the last year under President Reagan but I think there have been 19 Supreme Court justices approved in the last year. And don't forget Democrats got the majority in the senate when President Bush was there and they approved two conservative nominees for President Bush.

BOLLING: Let me just point out. Let's just clear this up -- Juan. That Kennedy was approved during the election year but he was nominated in the year prior.

WILLIAMS: It was very close -- a matter of a few weeks.


BOLLING: Hold on.

HAM: Let's also talk about President Obama and when he was a senator. He had a standard and that was for 60 votes for Justice Alito. So he maybe has to live by the standard he set. He is not going to like it. But that may be where this goes. This is how it works. There is a high threshold. This is a serious matter.

BOLLING: Let's talk about President Obama here a little bit about the hypocrisy of what he is doing. Mary Katharine Ham points out that he voted to get a 60 vote threshold for Alito. Now I guess he is suggesting -- he is still isn't going to get the vote anyway.

WILLIAMS: There never has been --

BOLLING: Hold on, hold on -- here is my question for you though Juan. The President says he has a constitutional responsibility, yet he spent the better part of seven years going around the constitution on executive order, on immigration and the big one some would say on Obamacare.

WILLIAMS: This is so fascinating to me. You have people who use executive orders far more than President Obama including President Bush, George W. Bush, President Clinton, President Reagan and yet you keep coming back to this.

BOLLING: Because -- those presidents used it for things like declaring national holidays or declaring the day of this and what not. Not any president, at least in recent memory, has used executive order to change policy as dramatically as President Obama has.

WILLIAMS: Because we live in such politically polarized times and we have and I think this is another example of it --

HAM: Partly because of him.

WILLIAMS: -- every time the President tries to do something the Republicans obstruct. When he responds you say this guy is a despot. He is he a king.

Ham: Juan he uses executive power to turn his feelings into law at any turn. Hew routinely says -- he spurns Congress and then he does nothing to cultivate that relationship and then he says I'm going to come to you for a solid at this point late in my lame duck career. No, that's not how it works. You actually do have to cultivate that.

WILLIAMS: Well who spurns who? I don't know who spurns who, Mary Katharine because it seems to me that it was Mitch McConnell who's leading the obstruction on this justice who is the one who said --

HAM: That's why they approved the first two choices for --

WILLIAMS: Forget that I'm elected to be the senate majority leader my job is to stop Obama from having a second term. Does that sound like someone who's serious?

HAM: Where did Kagan and Sotomayor come from then?

WILLIAMS: They were voted for a majority of the senate, right?

HAM: Yes, Yes. Right.

WILLIAMS: So what's to stop this now?

HAM: Because we are in a different political climate and it's not standard operating procedure.


WILLIAMS: The only thing different is the politics and Republicans don't want to see the court led by a liberal majority.

HAM: That's exactly right. Nothing wrong with that because the American people have suggested that they like Republicans in charge of the Senate and now they're in charge.

WILLIAMS: And who elected President Obama, the liberals then or the Independents.

HAM: That was two years before.

BOLLING: Stay on this for one second, guys. I have to wrap in about a minute. So very quickly, we're on the horn.

Juan, what would be bad with a 4-4 Supreme Court, maybe for a year until there's a new president?

WILLIAMS: Well, you know with the example going around town today is, what if you have another Bush versus Gore in the election? Why not expect that your Supreme Court should function, your Senate should function and your President should function and get it done.

BOLLING: Mary Katharine, what about a 4-4 tie until the next president comes and sworn in.

HAM: There's plenty of precedent for that as well. And if president was interested in functioning he could function on Obamacare in the normal process. He could function on executive orders on immigration in a normal process and go to congress. He doesn't do that.


BOLLING: All right. We have to leave it right there. Juan and Mary Katherine -- great debate. Thank you very much.

Content and Programming Copyright 2016 Fox News Network, LLC. ALL RIGHTS RESERVED. Copyright 2016 CQ-Roll Call, Inc. All materials herein are protected by United States copyright law and may not be reproduced, distributed, transmitted, displayed, published or broadcast without the prior written permission of CQ-Roll Call. You may not alter or remove any trademark, copyright or other notice from copies of the content.