What happens to the travel ban if it ends up in SCOTUS?

This is a rush transcript from "Special Report with Bret Baier," February 8, 2017. This copy may not be in its final form and may be updated.


PRESIDENT DONALD TRUMP: This was done, very importantly, for security. And it couldn't have been written any more precisely. It's not like oh, gee, we wish it were written better. It was written beautifully.

I watched last night in amazement, and I heard things that I couldn't believe, things that really had nothing to do with what I just read. And I don't ever want to call a court biased, so I won't call it biased, and we haven't had a decision yet, but courts seem to be so political.


JAMES ROSEN, FOX NEWS: That was President Trump speaking to a group of county sheriffs and municipal police chiefs at the J.W. Marriott hotel in downtown Washington about his controversial executive order suspending the refugee program and halting immigration from seven countries of high concern for terrorism. Will that executive order be restored by the ninth circuit and San Francisco? Will politics interfere with sound jurisprudence? And was the order beautifully crafted, as the president said?

Let's bring in our panel: Daniel Halper of The New York Post; A.B. Stoddard, associate editor at Real Clear Politics, and Charles Hurt, opinion editor for The Washington Times, all three unquestionably beautiful people.

A.B., the president seems to think that there is a biased court out there in San Francisco. He said he's not going to call it biased. What say you?

A.B. STODDARD, REAL CLEAR POLITICS: That's one of his great rally devices where he says I'm not going to say Hillary Clinton belongs in solitary confinement, but. Anyway, this is on the heels of the weekend when the president tweeted about a judge, questioning his qualifications, calling him "so-called." The ninth circuit may be liberal. I'm not an expert about where this is going. I understand that the president has broad authority on this issue and I don't know how to be interpreted by the court.

But trying to undermine the court in advance of the decision and delegitimizing the opinion of the court in advance, which is what he did when he didn't know he would win Pennsylvania so he tried to convince us that the worst voter fraud happened around the suburbs of Philadelphia.

But, anyway, we are going to basically hear if he gets a ruling he doesn't like that this is a political, disgraceful court, and it's inappropriate, it's irresponsible, and it's wrong.

ROSEN: So our chief White House correspondent John Roberts tracking so many things for us confirmed through his reporting that Judge Neil Gorsuch, the president's election to fill the Supreme Court vacancy created by the death of Justice Antonin Scalia said in private comments with a Democratic senator today that he finds these comments by President Trump disparaging the judges disheartening and demoralizing. Here is that Democratic senator telling us about that private conversation.


SEN. RICHARD BLUMENTHAL, D-CONN.: My strong hope is that he will be more vehement publicly. He certainly expressed to me that he is disheartened by the demoralizing and abhorrent comments made by President Trump about the judiciary.


ROSEN: Daniel Halper, how do you think President Trump watching this broadcast perhaps this very evening will respond to seeing his selection for Supreme Court nomination disparaging him?

DANIEL HALPER, THE NEW YORK POST: This is the big threat for Gorsuch right now, because as it is obviously one Democratic senator seemed to be slightly convinced about Gorsuch's independence, which is key obviously for judicial figures. The question is will he annoy the person who appointed him so much that he feels like he has to lash out? If Trump can control himself and not lash out and sort of let Gorsuch float on the Hill and do his thing, there's a good chance he will be confirmed and there's a good chance that these comments will help show senators on Capitol Hill that he has independence. If it becomes too political and he starts weighing in, I think it would begin to, it might, you could see where it could go. I don't want to predict too much.

ROSEN: We have all seen "The Apprentice."

HALPER: You could see where it could threaten his judicial appointment.

ROSEN: Charlie Hurt.

CHARLES HURT, THE WASHINGTON TIMES: I think if this, as Daniel said, reveals Gorsuch's independence, I think that helps him and I think Donald Trump is pleased with that. And of course Neil Gorsuch has to say that. It's perfectly reasonable that he would take exception to this.

But come on. The fights between presidents and the judicial branch go back a long, long ways. We have seen far bigger fights between -- Teddy Roosevelt launched a jihad against the judiciary in 1912. FDR stacks the courts because he didn't like the courts, they kept telling him that his New Deal plans were unconstitutional. So he didn't get rid of them, but he diluted them so that he could get his stuff through. And I think this is just another example of this where you have a president clearly doing something that is within the confines of his jurisdiction, and you have the court. You have these judges who are meddling and, as someone said, they are actually getting under the hood and tinkering with the actual legislative -- or the specifics of how the ban works and why it works, which his completely outside of their purview. Whether the ninth circuit overturns it or not remains to be seen. But a Supreme Court will uphold the president's right to do this.

ROSEN: Just to close the loop on Judge Gorsuch and his comments, we heard from Senator Blumenthal just now in that clip we played that he hopes that Judge Gorsuch displays those comments in a more public way.

HURT: I think it's a win-win for him.

ROSEN: The judge will face a confirmation hearing before the Senate Judiciary Committee.

HURT: He will get asked that a lot.

ROSEN: Yes, this will come up. What do you think you'll say?

HURT: I think he will double down on it. I think it would be foolish not to. And I think that the president when he stops and thinks about this, because he is going to win this fight -- it will be astonishing if he doesn't win this fight. And so why not win both, win the fight and get his nominee on the court?

ROSEN: Senate Democrats have been suggesting that this executive order that the president issued I guess on the last day of January or thereabouts is actually going to make America less safe, not more safe, in part because of the damage they say it's going to do to our international relationships. Here is one such argument along those lines, again, from a Democratic senator.


SEN. CHRIS COONS, D-DEL.: I am gravely concerned about what it's doing to weaken or destabilize our partnerships with Muslim and Arab allies in the region. The assault on Mosul is ongoing right now. The assault on Raqqa is beginning. And in our fight against ISIS, I don't think we can afford to strain our partnership with Iraq.


ROSEN: Now, A.B., the administration has sought to make it very clear that this is not an anti-Muslim ban. This only really bans refugees from countries, or immigrants from countries that have a high concern for terrorism. Do you agree, do you believe that this is an anti-Muslim ban?

STODDARD: I'm not going to comment on the policy. I can comment on the politics of it. Will Hurd, congressman from Texas, was also airing these same concerns on another broadcast last night about our need for alliances. It's either legal or it's not.

ROSEN: Is this widely misunderstood to be an anti-Muslim ban from where you sit?

STODDARD: It was a little bit difficult for this administration if you combine the botched rollout with Rudy Giuliani saying they came to me and wanted a Muslim ban and asked me how to work one out for them, it's hard to get around the firestorm it created. It wasn't drawn up and implemented effectively. Maybe if it had been they wouldn't be facing these complaints.

ROSEN: Daniel, are you hearing grumbling in the capital from conservatives, Republicans, Trump administration supporters, maybe even Trump administration officials to the effect that the individual who was doing the arguing on behalf of the Department of Justice in San Francisco at the ninth circuit yesterday, August Flentje, wasn't as effective as he could have been?

HALPER: Sean Spicer was asked about it today at the briefing, and he kind of hedged a little. He said the president thought that he made some good points. Didn't quite say he did a great job, but what is striking about the White House's position on this is they are clearly guarding themselves for a loss. They think, or they are preparing at least to lose this first decision. And I think the risk then becomes does it consume the first 100 days of the presidency? We have already been talking about it so much. If it prevents the Trump administration from doing other things, that may be a risk they can't avoid.

Content and Programming Copyright 2017 Fox News Network, LLC. ALL RIGHTS RESERVED. Copyright 2017 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.