Will Mitch McConnell move to replace Ruth Bader Ginsburg before the election?

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Will Mitch McConnell move to replace Ruth Bader Ginsburg before the election?

Ned Ryun discusses the political implications of the death of Supreme Court Justice Ruth Bader Ginsburg

This is a rush transcript from “Tucker Carlson Tonight" September 18, 2020. This copy may not be in its final form and may be updated.

TUCKER CARLSON, FOX NEWS HOST: This is a FOX News alert. Supreme Court Justice Ruth Bader Ginsburg has died. She was 87 years old. She passed away today -- tonight at her home in Washington, D.C. of the effects of metastatic pancreatic cancer, of course, a big story with profound implications, the outlines of which are just becoming clear.

We're going to start tonight with FOX News chief judicial correspondent, the host of course, also of "FOX News at Night." Shannon Bream is with us now. Shannon, we just found out about this. Tell us what you know.

SHANNON BREAM, FOX NEWS ANCHOR: Yes, I mean, we're told that her family was with her tonight when she died peacefully. She is survived by two children and a whole lot of grandchildren that she was very proud of and talked about all the time. She was the second woman to serve on the court. She was appointed in 1993 by then President Bill Clinton and she has forged a path. I mean, from long before she joined the Court until all of these years that she has served, she has been a strong advocate for ideas that she believes in. She has been celebrated by the left. She is an icon.

People dress up their babies as RBG. She is somebody that has a very loyal and loving following.

We have all cheered for her over the years through the many things that she has overcome. It's no secret that she has battled cancer numerous times in different forms as well, and it was just a few weeks ago that we heard that she was actually doing well.

She divulged through the court that she was suffering another recurrence, but she talked about the different treatments that she had tried and felt like chemo was going well. She sounded encouraged.

And so we really didn't know until tonight, that it had taken this very serious turn for the worse.

She is somebody, as I have told the story before, she shows up. She was exceptionally close to her husband. They entertained other members of the Supreme Court. They were very close. They're an internal family there are at the court.

Despite their ideological differences, they spend time together. She had a very tight relationship with Justice Scalia, and they couldn't have been two more different people in so many ways. But they had common interests, and so she and her husband entertained together a lot.

And I remember the day after he passed away, I was stunned to show up to court and see her on the bench.

But this was her life's work and she was strong and she was committed to it and she had repeatedly said, despite calls from the left and the right for her at different times to retire, that she was not going to do it. That this was her passion, her calling and her life's work.

And so she had said, listen, as long as I feel like I can do this job and be mentally clear and be physically strong, I'm going to keep doing it and that's the last formal statement that we had had from her just weeks ago before the news tonight.

So we've seen her overcome so much and be very physically strong through things that other people do not have a good, you know, percentage or chance of surviving.

CARLSON: No, that's for sure.

BREAM: So it's a shock tonight and you know, her colleagues are grieving. We're starting to hear reaction pouring in from them. They knew that she had been suffering, certainly, in a way that we in the public did not. But she has been a trailblazer in so many different ways, as a woman who coming out of Law School had a really hard time finding a job because it was unusual back then.

And she was married, she had a family and she wanted to do all of those things, and so she was a very modern woman in that way. And as I said, the second female appointed to the court, she clearly made her mark. We all know about her dissents.

And the court, when they read their opinions, normally, the person who writes the majority opinion will read portions from it. It's not often you get the dissent, but it does happen and she often read her dissents from the bench.

She was very strong and forceful in her language and pushing back on things that she thought the court got wrong. I mean, she was never shy about sharing her position on any number of things. But she was well loved and our colleagues, you know, are rattled tonight. They've lost a member of their very tight-knit family and the country has lost somebody that was a pioneer in a lot of ways -- Tucker.

CARLSON: Shannon Bream, thanks so much. I hope you'll stay with us tonight as we cover this literally breaking story.

For more reaction tonight and the political implications of this, which are vast, given the timing of Justice Ginsburg's death. We go now to Ned Ryan of American Majority. We're happy to have him.

Ned, thanks so much for coming on. So we're going to throughout the night, intersperse segments on Justice Ginsburg with the implications of her passing. But I think given the accelerated calendar here, and the fact that we're in the middle of an election, a very intense presidential election, this will have implications for that race. So what's the overview ...

NED RYUN, FOUNDER AND CEO, AMERICAN MAJORITY: Correct.

CARLSON: ... in your view as of right now?

RYUN: Well, my advice with Trump and McConnell, I'm hearing that there are some reports that they're going to move on this. And I've been hearing that Amy Coney Barrett, who is -- I'm a big fan of, in fact, I prefer her over Kavanaugh might be on the inside track for this nomination. I think she would be a solid choice.

She is still in her 40s. She is on the Seventh Circuit right now. She has proven her conservative credentials. She has a wonderful story, obviously the mother of seven kids, but is respected on both sides of the aisle, so I would say Amy Coney Barrett, and I think they will move and I hope they do move, Tucker, before the election.

With Trump and McConnell together, and obviously the majority in the Senate, this is an opportunity and I say, they seize the moment. And again, it highlights the fact of what is at stake on November 3rd, the Supreme Court and this again, will highlight especially for the evangelicals of which I am one, the importance of the Supreme Court, especially in regards to the life issue, especially in regards to Roe v. Wade.

I mean, this will highlight one of the most important issues for the evangelical base with the most pro-life President we have seen with Donald Trump. He can go to the mat with Amy Coney Barrett and say I'm going to nominate her and we are going to get her confirmed before November 3rd, I think it will be a massive help in his re-election.

CARLSON: Do you think it's possible that that could get done in the 46 days between now and the election?

RYUN: Absolutely, it could. There's -- of course, we have to remember there's no filibuster in regards to confirming Federal judges. We simply obviously need the simple majority, and we have those votes. And I think this is one of those things where I think you probably could get enough votes to get through that and get a Supreme Court nominee confirmed.

I say you go for it, Tucker, because if nothing else, a battle 40-some days out from the election again, highlights the importance of SCOTUS. I would strongly advise for it.

Let's see what happens. I think they would have the votes though to get Amy Coney Barrett through.

CARLSON: The Democrats will say and they'll be correct on this one point that there is precedent for delaying a confirmation hearing in the final months before an election, now in the final weeks before an election. How will Mitch McConnell who is responsible for that, of course, in the final months the Obama administration, how will he respond to that? I just I have to ask.

RYUN: But that has typically been when there are different parties in control of the White House and the Senate. That's not the case here. Obviously, the White House and the Senate both controlled by Republicans. Let's go for it.

CARLSON: Okay.

RYUN: They are the ones in power. It is their constitutional right to nominate and confirm Federal judges at all levels. I say, you go for it.

CARLSON: I just wonder and I mean, this is all -- this just happened, and so again, there are many levels to this and I almost feel bad because I do believe that you should pause and remember a person's life and not move immediately to the political implications. We wouldn't normally do this, even for someone I disagree with.

But because, you know, it's an election year, I just -- again, I feel like we should discuss this. Do you think you are hearing tonight that the White House is planning to move forward with a nominee before the election?

RYUN: I can only say there are rumors, Tucker. I've not heard direct confirmation of that, but I will point this out though. What do you think Chuck Schumer would do if he controlled the Senate and the Democrats controlled the White House? Do you think they would even give it a second thought?

At some point, we have to say we there's so much at stake, we are going to do this. And I think it's a bold move. I think it's a strong move and the President and Mitch McConnell, I don't even think should have a second thought about it. They should go for it.

CARLSON: Interesting. All right, Ned Ryun, thanks so much for that. Great to see you.

RYUN: Thanks, Tucker.

CARLSON: Jenna Ellis is a senior legal adviser to the Trump Re-Elect, and she is, of course, also a counsel to the President. We're happy to have her join us now. Jenna, thanks for coming on.

JENNA ELLIS, TRUMP 2020 SENIOR LEGAL ADVISER: Thank you so much, Tucker.

CARLSON: Your reaction to this.

ELLIS: Yes, well, of course. You know, Ruth Bader Ginsburg was someone who served this country, just remarkably throughout her entire tenure on the bench, and of course, our condolences to her family.

And I think that's, you know, taking some time to recognize that before we get too much into the politics is definitely how the country should celebrate her legacy and her remarkable achievement for women.

I mean, as a female attorney myself, I applaud the fact that she was one of the first female Justices on the bench, and even though you know, of course we can -- we all have our opinions on her decisions, I think that her service to this country needs to be recognized and I anticipate that President Trump will do that over the next days and weeks ahead.

CARLSON: Yes. I mean, I couldn't disagree more with what she did during her 27 years on the bench, but I think we should all bow in reverence before the death of anyone. It's the most profound transition there is.

And so I think it's important not to politicize funerals, as we often say in this show, and to recognize when someone dies, and so I thank you for saying that.

Having said that, what happens now?

ELLIS: Yes, well under the Constitution, of course, the decision when to nominate someone for a vacancy on the Supreme Court is entirely up to the President. So, in terms of the Constitution he can and then it comes down to advice and consent of the Senate.

And so certainly, there is time. His first term, hopefully, as we all anticipate he will get re-elected is not up until January 20th. So he certainly has sufficient time if he chooses to do that, and then this will fall into the hands of the Senate, who will determine their advice and consent pursuant to the Constitution.

CARLSON: What will happen, quickly, if the President decides to do that? I \mean, do you -- do you anticipate social volatility? I mean, how intense a moment would that be? We said the last time the President got justice on the Supreme Court, I mean, it just -- the country stopped and the left did things I didn't think any political movement would ever do. What would happen if the President did that now, do you think?

ELLIS: Well, I think this is why it is so important that the American public recognizes the importance of the Supreme Court. And you know, when President Trump released his list of nominees that got hardly any media attention, but now I think it's going to be front and center over the next few days.

And it's so critical for Joe Biden to put forth his list, which he's refuses to do. And should the President move forward with a nominee, I hope that the Senate, particularly the Democrats that are on the Senate Judiciary Committee will treat this fully and fairly, and they won't politicize it and do everything that we all lived through with the Kavanaugh confirmation and that they will give it the full attention and respect that a Supreme Court nominee deserves.

CARLSON: Yes, that was an atrocity what they did, and you make a very fair point about Biden releasing his list.

ELLIS: Absolutely.

CARLSON: I hope he does that. Jenna Ellis, thank you so much for that. I appreciate it.

ELLIS: Thank you, Tucker.

CARLSON: Well, because this is on some level, it's a human story; needless to say, it's also a political story. We want to go now to our chief political correspondent, Bret Baier who is standing by for us in Washington tonight.

Bret, this definitely shuffles the deck.

BRET BAIER, FOX NEWS CHIEF POLITICAL ANCHOR (via phone): Yes.

CARLSON: Yes. What's your reaction to it?

BAIER: Tucker, this is actually a major change in this election. Obviously, tonight is about the life and legacy of Ruth Bader Ginsburg. But the focus now on this replacement and what it means for the election 46 days away, there are already statements out from Democratic senators saying the American people need to speak about this Justice replacement, and they have to wait until after the election.

I think that this is going to be a real battle and the President is probably going to move forward with one of those people on the list that he just rolled out a couple of weeks ago. If you thought the Brett Kavanaugh hearing was intense, wait until this nomination hits and the hearing starts for this replacement.

Tonight is about looking back at her life -- life and legacy and she was a giant, but the giant battle that is yet to come up will be in the Senate Judiciary Committee.

CARLSON: That's exactly right -- chaired by Senator Lindsey Graham of South Carolina. I wonder -- I mean, the fear for everyone is that the kind of mob violence we've been living through for the past three months will accelerate. I wonder if it would be possible to call some kind of truce where everyone agrees, you know, our supporters are not going to go in the streets and hurt people.

BAIER: Yes, I mean, listen, we don't know what's going to happen because we've seen the entire landscape change just in the past, you know, few months about how protests devolve into different things. This adds more fuel to that fire potentially, but I think how it's handled on the Senate, with both Mitch McConnell and what he decides, is going to be crucial and that's going to probably start as soon as this --

CARLSON: Oh, I would imagine those conversations are taking place for certain right now. Do you have any sense and I know that this just happened, so it's asking a lot of you to provide fresh reporting on it. But you have any sense of what Mitch McConnell might be thinking about this tonight?

BAIER: You know, he's been asked about it numerous times about what he would do, and he did point back to the Merrick Garland situation. And he says, if the Senate was in the hands of an opposing party to the President, that would -- you would not move forward.

But since it is the same party as the President, you would move forward. That is going to get a lot of pushback from Democratic senators. But I think that that's what's going to happen.

CARLSON: Do you think given that quite a few Republican senators are up for re-election this year that McConnell could count on holding every Republican.

BAIER: This will change the dynamic in a lot of different race. This was not on the front burner. It was always a key issue, but it will change the dynamic for races where the Justices and replacing this Justice in particular because it swings the court will now come from center.

CARLSON: All eyes on Susan Collins of Maine in a very tight race with Sara Gideon, very tight. She, of course was one of the decisive votes last time. You've got to kind of wonder, let me just ask you once again, do you think this makes it harder for McConnell to hold his votes? Or easier?

BAIER: Listen, this -- you know, somebody like Susan Collins is going to -- she is in a tough spot as it is. She is getting push back on the ground in Maine for the Brett Kavanaugh decision and for having to vote for Brett Kavanaugh.

So some of these, you know, can go either way -- and not only that, but it fires up both bases. Let's make sure that we -- not only on the right side, but the left will be immensely fired up to make sure that they get control of the Senate and ideally, in their view, have this chance to block or possibly move forward with this Justice.

CARLSON: Oh, boy. A dramatic season just got so much more so. Bret Baier, thanks so much. I hope we see you next week.

BAIER: All right. You bet.

CARLSON: Saagar Enjeti is an opinion host with "The Hill" newspaper. We're happy to have him on the show tonight. Saagar, what do you think Republicans should do after they pause and acknowledge that a human being has passed, someone who served on the court for 27 years, but as a political matter, where do they go now?

SAAGAR ENJETI, OPINION HOST, "THE HILL": Well, Tucker, that's -- I mean like you said, that's the question being asked in every phone in Washington right now, because -- and I think Bret made a very key point, which is that this points to the issue of the court front and center in every single election. That could actually be great for some Republicans which are on the cusp in certain races. It could be terrible for somebody like Susan Collins.

Already, Tucker, while we've been speaking, the margin is incredibly tight. Lisa Murkowski already coming out and saying that she would not vote until after election or I think election or Inauguration Day, I don't want to misspeak here. So that's one vote that you can also count down from the Republicans. All eyes there on Susan Collins.

I mean, in terms of the Republican strategy, this is something that they have also promised their base from the beginning. They keep telling their base, oh, just one more Justice away from achieving what we've always wanted to. Now they actually have the chance, and if they decide to go for it, they also have to reckon with a country very much on the brink right now and I think that you expressed concern about this, and this is where I feel a sinking pit in my stomach as much, you know, look, I want to honor the life of Justice Ginsburg, and she was an icon in the United States, and especially here in Washington.

But we've just seen the normalization of left political violence all across this country by the highest echelons of American society.

CARLSON: That's right.

ENJETI: We saw the groundwork for that laid during the Kavanaugh hearings, if we remember protests vandalizing the Supreme Court building, Abraham Lincoln, all across Washington. This could be that. I mean, this could be that times a hundred, times a thousand.

CARLSON: Yes.

ENJETI: The stakes for the election here are literally existential right now.

CARLSON: They are existential, and you've seen for the past three months, prominent figures encouraged violence from their perches on social media that the key Supreme Court decision on free speech, Brandenburg versus Ohio, carved out a huge space for people to say what they believe, but it drew the line at encouraging imminent violence.

And so you'd like to hope that some of those people would be held accountable for encouraging violence if they do. But I agree with you. Itdoes feel like American society, you know, could be damaged by this if it gets more intense. That's kind of the last thing we need.

ENJETI: I just think we need to go into this very clear-eyed, Tucker, with our murder rate is up by like 40 percent across all major cities and one of the major thinks when you talk to police officers and you read the case files, people are just angry. They're on edge with the lockdowns, with so much of where we are.

Drug uses up, alcohol use. I mean, so much of what is happening, Americans are depressed at a higher rate more than ever. Only 14 percent say they're satisfied with the state of the country right now. That's the latest Pew poll.

I mean, is this the time to inject something like this? But at the same time, what has the Republican Party been elected for? They've promised their base over and over and over again, we're just one more Justice away from Roe versus Wade.

CARLSON: Right.

ENJETI: One more justice away from doing this. Now, they might have to put their money where their mouth is, and it could dramatically -- I really mean it -- shake the face of this country over the next I think, 46 days until Election Day.

CARLSON: Watching the behavior and the decisions of the Chief Justice John Roberts, who was confirmed, of course really to the delight of Republicans in Washington who thought he was their guy, he turns out to be an utterly conventional establishment liberal, I think, it's fair to say.

A lot of conservatives are going to say, we can't have that again. I mean, if you're going to nominate someone it has got to be someone who believes what she says, right?

ENJETI: That's right, Tucker, and this is one of the biggest -- another key intra-Republican Party fight. Who's going to have the say in who is doing this? Is it going to be the Federalist Society? I mean, are we going to get pro corporate and maybe like socially malleable judges? Or are you going to get judges who are not socially malleable.

This is the greatest fight in Washington right now in the conservative legal establishment, which was really shook by the Bostock case, which, you know, many of the viewers might understand as the transgender rights case before the Court a couple of months ago in which Justice Gorsuch actually shocked many people in the conservative legal establishment in ruling the way that he did.

So again, there is going to be a level of scrutiny on these nominees that did not even exist for Gorsuch and Kavanaugh. The litmus test for Democrats and Republicans are all over the map and I mean, with 46 days until the election with, you know, a Democratic Party and a left movement, which has already mobilized, has normalized political violence and Roe vs. Wade may literally be on the ballot. I mean, things are ripe for problems right here, Tucker.

CARLSON: Saagar Enjeti, thank you so much. I appreciate that.

ENJETI: Thank you, Tucker.

CARLSON: We want to take a moment to consider some of the issues that ultimately are decided by this country's highest court: immigration is one of them. Obviously, it's a key issue for the Trump administration as well.

Dan Stein is the President of the Federation for American Immigration Reform. No one watches the court more carefully on questions relating to immigration than he does. We're happy to have him on tonight. Dan, thanks.

DAN STEIN, PRESIDENT, FEDERATION FOR AMERICAN IMMIGRATION REFORM: Good to be here.

CARLSON: So to what extent is our immigration policy crafted at the Supreme Court level?

STEIN: Certainly major issues that define our constitutional norms or separation of powers, which are very important in immigration are definitely decided at the Supreme Court, Justice Ginsburg was a part of that faction that sought to erode the traditional deference the courts had traditionally given to the President in matters dealing with border security, border control, and procedural process for aliens at the border.

So, you know, this is really kind of a philosophical dividing issue, where you see the liberal justices, which Ginsburg obviously has been a part of eroding certain doctrinal principles that prevented for example, Americans from suing on behalf of aliens outside the country, which dramatically increased the volume and amount of litigation that was used, for example in challenging many of the things that President Trump tried to do during his administration.

So it's a very -- I mean, this is a very significant thing if Donald Trump is able to actually make this appointment go quickly. And I mean, come on, Tucker, what would Chuck and Nancy do in the same situation? Right?

McConnell has got to put somebody up there quickly, so does the President because this is his chance to really put his mark on the court and restore this idea that Congress makes the immigration laws, and the President enforces them under these broad delegations of authority, otherwise, the system spins out of control.

CARLSON: I think that's a very smart point. It does spin out of control. And it is.

Of course, Mitch McConnell doesn't make these decisions alone. The presumption is that he has all of his members, all the Republican senators behind him. Republicans aren't quite as good at discipline as Democrats are.

Do you think -- as someone who watches the Congress a lot, do you think he can corral his senators into supporting the President's nominee, assuming there is one?

STEIN: A lot of it probably will depend on how much he consults with Murkowski and Collins beforehand and gets their buy-in in probably a female candidate.

He seems he has got a pretty good list that he has put together right now, and it really depends on how well he is able to sell the idea that this is politically in their interest.

Obviously, what Mitt Romney does is an open question. Nobody is expecting any -- he is going to take the side of not wanting to politicize the process. But this is an opportunity for Trump to actually raise the immigration issue within the context of a Supreme Court nomination.

If he were to just sit on his hands, the President through the election, and then lose, it might be the last opportunity the Republicans have to put somebody who is really good on the immigration issue on the Supreme Court, you know, for 20 years.

CARLSON: So it seems like and you're certainly ahead of one of the constituencies that roughly supports Donald Trump, it seems like the President and the White House is going to come under some pressure to move ahead. That's what I'm inferring from what you said.

STEIN: The question is really, politics is about seizing the opportunity. The idea that Saagar says that we're supposed to be afraid of potentially normalizing violence, whatever that means, our institutions have to be able to function efficiently in our country.

The Supreme Court is a part of the efficiencies of those institutions. It represents the bulwark of the protection of our democratic liberties. If we can't nominate a Supreme Court Justice efficiently and smoothly and get that person appointed quickly, well then the institutions themselves are in jeopardy.

Maybe that's what the agenda of the far left is. But an awful lot of people are hoping the President understands that there's a lot more at stake right now. There's no such thing as a Supreme Court Justice seat that is like liberal or conservative. They're just good Justices who interpret the law the way Congress intended.

And we need a Justice on the Supreme Court who will interpret the law properly consistent with what a judge is supposed to do, not re-engineer the Constitution, rewrite it, or give us a different Constitution from what we all supported originally.

CARLSON: That's right. You make a very wise point. If the institution can't function under stress, then it's a dysfunctional institution, and we are about to find out whether it is or not.

Dan Stein, Thank you. Appreciate it.

STEIN: Thank you, Tucker.

CARLSON: Well, Peter Schweizer is an author, bestselling author, a frequent guest on this show. We're happy to have him join us tonight.

Peter, thanks for coming on. So what what's your take on this? And for our viewers, by the way just joining us, Supreme Court Justice Ruth Bader Ginsburg, originally from New York living in Washington passed away tonight at the age of 87 of metastatic pancreatic cancer. What next?

PETER SCHWEIZER, AUTHOR: Well, I think that's the real question. Right? I would say that Justice Ginsburg is not somebody that I agreed with in terms of judicial philosophy, but I admired the fact that she had friendships with people across the aisle -- the judicial aisle -- like Justice Scalia.

I do think that this is going to be a major stress on our system because what's happened is the left has become so engaged in judicial activism. They can't accomplish things on a legislative scale. They can't win the necessary elections or have the kind of electoral heft to advance their agenda through the legislature, so they have relied increasingly on the courts over the years.

So the stakes are very, very high, and I think that's probably one of the inherent problems here, that we have to keep in mind that it's going to get worse before it hopefully gets better.

And I do think that, you know, on the question of timing, it's the President's prerogative, maybe it's not a vote in the Senate that's held before the election, but certainly you would think one could be held before, you know, the middle of January when inauguration takes place.

CARLSON: It's a little strange, and I'm glad that you made this point that in a purported democracy, we spend this much energy, there's this much attention on a lifetime appointed seat to a court. That's not really how our system is supposed to work, is it? I mean, it's a third of the system, the judiciary, but we act like it's the whole deal. Why?

SCHWEIZER: Yes, I think that's a hugely important point to make and that's inherent in the kind of judicial activism that we have coming from the left. Think about it for a second. Essentially what the left is doing is saying that nine individuals in black robes that have lifetime appointments that are not elected by people, they are elected by a majority of senators get to make very wide, overarching statements about what is constitutional and what is not constitutional.

And I think there's a lot of evidence that the Judicial Branch has become much stronger than the Executive and the Legislative and ideally, the way the founders envisioned it, Tucker, as you know, is they wanted them all to kind of balance and check each other out.

CARLSON: Right.

SCHWEIZER: So you know, this is the reason why people like Mark Levin and some others have said we should consider term limits or other restrictions on the court, but because of the way it is operating right now, the power that the Supreme Court has, that's what makes this next decision about who is going to be on the court, really a zero sum game.

I mean, one side is going to change automatically when and one side is going to dramatically lose and there's very little wiggle room that you might have in a legislative arrangement or something else. So that's the problem. Part of the reason we're at the high stakes game we are today is because the left has pushed this kind of judicial activism going back, you know, 40 to 50 years.

CARLSON: Yes, this is too significant a job. I should say, we are just getting word that NPR is reporting so with a grain of salt take this, please that on her deathbed, Ruth Bader Ginsburg said to her granddaughter, and I think, I'm quoting, "My most fervent wish," as she died, " ... is that I not be replaced by this President." It's hard to believe and I'm going to choose not to believe that she said that, because I don't think that people in their deathbeds are thinking about who is President. You hope not. That's a pretty limited way to think as you die.

But certainly, this will be used as a cudgel by the left, I would think.

SCHWEIZER: Yes, I think you're right, Tucker. And look, I mean, it's very tragic that she has passed away. She's been battling this illness for a couple of years. But we all have to remember that there were murmurs in the latter parts of the Obama administration where people were asking her to consider stepping aside and she refused to.

So part of the reason we're in the situation is because of that.

CARLSON: It's a good point. Peter Schweizer, thank you so much.

We're going to reset at the half hour now bringing you in a FOX News alert. You're probably aware, Supreme Court Justice Ruth Bader Ginsburg has passed away in Washington tonight at the age of 87 years old. She has been battling various forms of cancer, including pancreatic cancer for quite some time, quite a long time, but has been reporting to work anyway.

Without warning at least to the outside world, she passed away today setting up in the middle of the single most intense political season of anyone's lifetime watching, yet another political battle.

We don't know where it goes. We don't know whether the White House will put forward a candidate, a nominee to try to replace Ruth Bader Ginsburg in the 46 days between now and Election Day. We don't know whether Republican members of the very closely balanced Senate will back that decision.

We're hearing tonight that Lisa Murkowski, Republican Senator of Alaska has said she will not vote for a replacement for Ginsburg until either after the election or after the inauguration so that takes one off the table; Mitt Romney, almost certain to vote against anything the President puts forward. And then Susan Collins of Maine in a very tight race in that state, unclear where she would come down on that.

So there's a lot that we don't know at this hour. We do know, once again,that a very intense political moment is about to get much more intense. And so with that, we're going to spend the rest of the show taking a look at this question including of the life of Ruth Bader Ginsburg from a bunch of different angles.

I want to bring you back with Shannon Bream, who is our chief legal correspondent who has covered the Supreme Court for years, is a lawyer and of course, also hosts a show -- a few shows after this one, every night.

Shannon, thanks so much for coming back. So give us a sense of what you're hearing. I know everybody in Washington right now is on the phone or texting. But give us a sense of the reactions that people in Washington are publicly expressing to the passing of Ruth Bader Ginsburg, and give us a sense of what you think might follow this, if you would.

BREAM: Yes, well -- yes, of course. I mean, she has got a place in history that will always be there as the second woman appointed to the Supreme Court by Bill Clinton back in 1993. Her impact is hard to overstate. She has got a loyal following. Even just in the last couple of years, there have been documentaries and movies made praising her. She is a cult figure almost on the left. They most certainly have praised her work. Her strong positions, her strong dissents when she wasn't in the majority opinion. She is going to be remembered for so many reasons being a trailblazer.

I'm getting word that there was a turn earlier this week, just a couple of days ago that may have indicated to those closest to her that her death was imminent. Her family was with her. She leaves behind two kids and four grandchildren.

Family was everything to her. As much as she loved her life's work in the court, she talked incessantly about her family and adored them and was one of those women early on who I think there were only maybe nine women in her graduating law school class from Harvard, one who came out married and wanting to juggle a legal career with also having a family and it's something that she set an example about how to do on so many different levels.

So her fellow colleagues are grieving tonight. They've been through this not that long ago with the sudden death of Justice Scalia, and the two of them were so very close, even though they did not agree on much.

So now we look forward to what comes next for the court. It's a very delicate, sensitive time in Washington. We want to be able to highlight the great strides and things that she accomplished in her life. But there are already conversations by Democrats and Republicans happening here in Washington about what will come next.

As you said, it's fraught in the middle of a very, very difficult election year. We have talked about this in the past. I have talked with Senator Mitch McConnell about this in recent months. The indication then, was that they would move forward.

A lot has happened in this country this year, and I don't know if he holds that position again still tonight. We'll probably know in short order, but in the meantime, she leaves with a real mark on the court and on the history of this country and its jurisprudence tonight at 87 years old -- Tucker.

CARLSON: Shannon Bream, I appreciate it. At some point, I would love to -- probably not tonight since it just happened, but I would love to get a more granular sense of her legacy on the court.

Some of us, you know, read accounts in the paper, but it's unclear exactly who the intellectual forces are on the court. I know that you know the answer to that, so I hope we can talk about that, at some point because I think it is interesting.

BREAM: Sounds good.

CARLSON: Great to see you tonight. Thanks so much.

BREAM: You, too.

CARLSON: Well, we just mentioned Senator Susan Collins of Maine. We told you she is in a very tight race for re-election.

Earlier this month, she told "The New York Times" about seating a Supreme Court Justice in October. She said she would not do it. Here's the quote, "I think that's too close. I really do." Reporters say she also said she would oppose seating a Justice in the lame duck session. That is the period between the election and the inauguration should the incumbent President lose.

Brit Hume is FOX News senior political analyst and we are happy to have him join us tonight. Brit, thanks so much for coming on.

BRIT HUME, FOX NEWS SENIOR POLITICAL ANALYST: You bet, Tucker.

CARLSON: So I want to jump, if you don't mind, right into the politics with you. And I mean, no disrespect. But I think it's important. This suggests if Murkowski and Susan Collins are both on the record saying they will not vote for a replacement before the election that suggests that this can't happen, does it not?

HUME: It does. And might I also add, Tucker, that Lindsey Graham back in 2018, before he took over the chairmanship of the Judiciary Committee said that even if we were just into the primary season, he would not want to see a nominee advanced in the election year.

I might add this, Tucker. I think Mitch McConnell has laid out what his principles are for this, and as Bret Baier mentioned to you earlier, it is yes, we would go forward and the only circumstance under which we wouldn't go forward in an election year is if the President and the Senate were of opposing parties, which at this point, they are not. So that would presumably set the stage for a nomination to be made and advanced.

But I think the circumstances may have changed since we see an outline there. Our American institutions right now and our political system are undergoing a stress test as difficult and intense as I've ever seen. And I go back to the 60s when we had the tremendous upheaval and turmoil over the Vietnam War and the divisions that that provoked, what we're seeing now is even more intense than that.

And I think that the leaders have to consider what the effect would be if  we plunged at what would undoubtedly be a brutal and divisive confirmation battle into the end of this, into the middle of this, I should say. So I think that's the threshold question. The threshold question is whether to even make a nomination.

Trump's instinct undoubtedly will be to go forward. But whether Mitch McConnell will feel that way as the majority leader of the Senate at this stage, I think is unclear. It would be good to hear from him.

And whether -- you know, if you've got -- and the first thing he is going to want to do is if he decides that it's an idea worth pursuing would be whether he would have the votes and we've got people like Murkowski and Collins and possibly someone like Mitt Romney, not prepared to go along, you might not be able to pull it off no matter what you did.

So those are all things that have to be considered as to whom, if anyone to nominate to replace this brave soul who raged such a courageous fight against cancer.

CARLSON: So I think it's fair to say that you can't count on Mitt Romney's vote. Just kind of going out there on a limb with that. So given that --

HUME: Well, yes.

CARLSON: Probably. Just a --

HUME: Look, the -- well, the other thing is, you know, if you're the leader of the Senate and you're trying to hold the majority. You're going to have to look at a lot of races out there to see how that might -- you know, you look around to see how this might play. I mean, you've got people like Cory Gardner in Colorado and so forth, who is in a tight race, and there are others. And you would want to know what, injecting this new broad battle into the whole picture, what the effect would be. It might be rallying. You know, off the top my head and I don't know, but I think these are all the things that are going to be under consideration here.

But I really do I think that the threshold question is, whether to put the country through this because as you and Bret were talking about earlier, what we saw with Brett Kavanaugh -- and remember, the Kavanaugh nomination was to succeed a centrist on the court, a swing vote on the court.

Ruth Bader Ginsburg is the leader of the liberal bloc, and to try to get her replaced by a conservative jurist, a judicial conservative would provoke an even more intense battle. And I think that the handling of the Brett Kavanaugh nomination by his opponents was the worst thing I've seen in my use in Washington. It was the absolute bottom. I hesitate to imagine where such a battle over this could go.

CARLSON: Right. We're being held hostage. Really quickly, I have to ask you. So let's say the administration puts forward a name, but the Senate doesn't cooperate. But that name reminds all of us that one of the effects of your vote in November is choosing the next Supreme Court Justice. Does that help do you think, the President, or does it help his opponent?

HUME: Well, it would rally his base. It would rally the Republicans, too, because the court is something that is considered to be, you know, a crucial matter. And it's considered crucial by both parties, but for slightly different reasons.

On the left, the Supreme Court and the lower courts have been the place where they've been able to go to achieve policy objectives that they couldn't achieve through the legislative process, either in the States or in Washington, and there have been a lot of results through the years by activist judges in the eyes of conservatives that they found disagreeable.

And so their purpose in nominating Justices has been to stop that action, to bring the courts back to a more traditional role, where they closely adhered to the, you know, the language of the Constitution and well understood constitutional principles.

Now liberals will give you an argument that say they were an activist and I've heard it many times, and I'm sorry, I don't buy it. But that's been the struggle. It's been a struggle by the left to advance its agenda through the courts and a struggle by the right to block that. And that's where the two standards -- the right really hasn't succeeded in advancing all that many novel, constitutional or legal interpretations through the courts.

It has -- there's been some, you know, there have been -- you know, there is a big argument, for example over gun rights that was settled by the Supreme Court, although it's still going on. So there you have an example.

But that's -- but believe me, the feelings are very intense on both sides and make no mistake about it, Tucker, the President -- President Trump, then candidate Trump's articulation of a list of potential jurists did a lot to rally conservatives to his cause in 2016 when they weren't necessarily going to go for him.

CARLSON: That's right.

HUME: They didn't know at the time for sure it was going to be Hillary or whatever, but it was important to him, but it might have an important rallying effect on the left as well. You shouldn't rule out that possibility.

CARLSON: That's right. They'd like to see Stacey Abrams on the court, and we'll see if they get it. Brit Hume, I hope you'll stay with us if you would. I appreciate it.

HUME: Yes, I will. Thanks.

CARLSON: Judge Jeanine Pirro is the host of "Justice with Judge Jeanine." She joins us on FaceTime to respond to this breaking news. Hey, Judge. So what's your reaction?

JEANINE PIRRO, FOX NEWS HOST, JUSTICE WITH JUDGE JEANINE: Well, you know, it was shocking. It was certainly sadness. You have to understand that Ruth Bader Ginsburg, you know, in addition to being the second woman appointed to the United States Supreme Court was very much a cult figure for a lot of young women, a woman who, you know, went beyond the odds and ended up on the United States Supreme Court and fought constantly for women and women's rights.

She was a pioneer in terms of equal pay that led to the Lilly Ledbetter Act that she worked with President Obama on and she was a very proud of her decision in the United States versus Virginia Military Academy, where women were denied entrance and because of their sex. It was a single sex admission Military Academy.

She was very much a smart woman who has a long following and will be remembered. And in terms of the legacy, not just in terms of the court cases, but in terms of young women and a whole generation who believed in the notorious RGB, I think that her death will motivate some on the left.

She clearly was a leftist -- a judge who was a liberal wing of the court -- and I think that she will activate that base. But I think that the one thing that is so clear about Ruth Bader Ginsburg and her presence on the Supreme Court was how strong she was, how hard she fought, and how much an activist judge she really was.

CARLSON: May I pause you there and ask you a question, and I don't know the answer to this.

PIRRO: Sure.

CARLSON: So there are certain Supreme Court Justices who might have strong political views, but who on pure legal grounds sometimes find themselves voting with the other side, you know, who are principled enough to crossover? Was she one of those? What was her crossover percentage, do you know?

PIRRO: You know, I can't speak to her crossover. But what I can tell you is that she was motivated by her beliefs in women's rights and activism. I mean, I was a judge myself, and there were cases that I disagreed on, but the law and precedent dictated what position I would take.

CARLSON: Of course.

PIRRO: Ruth Bader Ginsburg was a judge who allowed her belief on a particular issue, in many ways to dictate her final judgment in the case. I mean, if indeed it is true what they're saying, you know, that she has indicated that she wants to be replaced by -- installed by another President. I mean that gives you if that's true, all you need to know about Ruth Bader Ginsburg.

Her comments about the President before he became President Donald Trump, very critical. She was more than just a Justice. She was a political activist.

CARLSON: So the President, I have to ask, is it a rally right now. He is over -- oh, there he is on stage in Minnesota. Do you think he knows that this happened? I mean, this is going to have a huge effect on the presidential race. How could it not? How would he know the Ruth Bader Ginsburg has passed?

PIRRO: Well, I'm sure that if he hasn't been on stage for all that long that one of the people with him on the campaign trail would have told him. I think that this has been, you know, public knowledge for about what? Thirty minutes now, would you say? I think that -- I'm not sure what the President would do other than, you know, speak highly of her now that she has passed.

The political game that will be played after this will be as you and Brit Hume talked about, something that would be so incredibly strong in terms of the both sides going at each other that it's not something that we necessarily need to see before the election.

CARLSON: Does it -- I mean, since you've lived in this country all of your life, does it seem a little bit weird that all of us are intimidated by violent mobs of Biden voters? I mean, at the back of everyone's mind is, oh, maybe you know, we shouldn't try and exercise our system in the way it was intended to be exercised because Biden voters will get mad and start hurting people -- is that -- that's kind of a weird place to be, isn't it?

PIRRO: Well, it's a horrible place to be Tucker and the truth is that the people who are silent now will be speaking in 46 days and I think that if this becomes another issue, then what we've got to be able to do is make sure that, you know, we have the ability to stand firm in our beliefs.

There are a lot of attempts to stamp on our freedom right now and I think that the strength of this country is people believing that they can go to the ballot box that they can be able to say what they may not be, you know, willing to say in public because of the backlash and they'll say it when they go to vote on November 3rd.

CARLSON: Well, that's exactly right. That is the voice of the population. Judge Jeanine, thanks so much for coming on tonight. I appreciate it.

PIRRO: My pleasure, Tucker.

CARLSON: So as we told you, this news just broke. The President was in fact, speaking at the time this news crossed on the news wire, so it's not  that he knows and we don't know, sitting here in the studio what the reaction from the rest of the country has been to this, so we've asked Rick Leventhal to join us with an update on what people are saying about the passing of Supreme Court Justice, Ruth Bader Ginsburg. Hey, Rick.

RICK LEVENTHAL, FOX NEWS SENIOR CORRESPONDENT: Hey, Tucker. Widespread condolences on Twitter over the loss of Justice Ginsburg, many calling her a giant and a champion of gender equality. We have heard from former First Lady and presidential candidate, Hillary Clinton, who wrote, "Justice Ginsburg paved the way for so many women, including me. There will never be another like her. Thank you, RBG."

We also heard from Senator Bernie Sanders, who wrote, "The passing of Justice Ruth Bader Ginsburg is a tremendous loss to our country. She was an extraordinary champion of justice and equal rights and will be remembered as one of the great Justices in modern American history."

And Tucker, we have now also heard from former President George W. Bush, who released a statement saying, "Laura and I join our fellow Americans in mourning the loss of Ruth Bader Ginsburg. She dedicated many of her 87 remarkable years to the pursuit of justice and equality, and she inspired more than one generation of women and girls. Justice Ginsburg loved our country and the law. Laura and I are fortunate to have known this smart and humorous trailblazer and we send our condolences to the Ginsburg family."

Tucker, we are monitoring the President for more, and we'll let you know if and when he weighs in.

CARLSON: Thank you so much, Rick Leventhal.

LEVENTHAL: Sure.

CARLSON: Good to see you. Former President George W. Bush endorsing the legacy of Ruth Bader Ginsburg.

Mollie Hemingway is a senior editor with "The Federalist" and a FOX News contributor. We are happy to have her on tonight. Mollie, thanks for coming on.

So respectful question, hoping for a respectful answer, but how would you assess the legal legacy of Ruth Bader Ginsburg?

MOLLIE HEMINGWAY, FOX NEWS CONTRIBUTOR (via phone): Well, regardless of what you think of her jurisprudence, this is a woman who had a lengthy career in public service. She was inspirational to quite a few women as only the second woman to sit on the Supreme Court.

She had quite a fan base which seemed to be based more on the results of her rulings in favor of abortion as opposed to in particular legal reasoning or whatnot. But there are people on all sides who appreciated her and even recently after Justice Kavanaugh was confirmed, might remember that she was extremely critical of what Democrats had done to him in terms of trying to destroy his life.

And so she was well-regarded even by her colleagues there on the Supreme Court for how she defended or how she defended him.

CARLSON: Well, she was tough, and I admire that. She lived to 87 despite fighting all kinds of cancer, and I definitely admire that. Good for her. But assess if you would her jurisprudence. We haven't heard anything about that tonight. It's not a partisan question, but I'm just interested, was she respected by legal scholars?

HEMINGWAY: You know, she actually -- parts of her very political work in her support for abortion, which is of course the reason why many people like her. She was well-regarded by some people for some of the more arcane legal reasoning that she worked through that had helped lawyers throughout the country.

It's not so political, but she did have some stuff that people appreciated there. But that's not why she drives the excitement probably.

CARLSON: Right. That's probably right. So I have what I think is a statement from the Senate Majority Leader, Mitch McConnell of Kentucky and I'm going to read it and I just want to say I'm getting this cold, so apologies for mistakes. But here's I believe a statement from Mitch McConnell, "Americans reelected a majority in 2016, expanded it in 2018, because we pledged to work with President Trump and support his agenda, particularly his outstanding appointments to the Federal Judiciary. Once again, we will keep our promise. President Trump's nominee will receive a vote on the floor of the United States Senate."

Again, I believe this is a statement from Mitch McConnell. President Trump's nominee will receive a vote on the floor of the Senate. So that seems to indicate Mollie, the answer to the question we have been asking for the last hour and 20 minutes since we heard this news. It sounds like the White House and the Republican-led Senate will move forward with a replacement for Ruth Bader Ginsburg before theelection. Is that how you read that?

HEMINGWAY: Yes. And Tucker that would match with what they had said earlier in the year that if there was a vacancy, they would move to fill it. And contrary to what you've heard a lot of people say, there's still inconsistency between this and the McConnell rule that that came forth in 2016. The McConnell rule was that you don't fill a nomination if the Senate is held by a different party than the President in the final year of the presidency or in an election year. That's not the case here and that is why he is emphasizing there that the Republicans had the -- you know, the voters gave Republicans the Senate in 2016 and increased it in 2018, and so that that's an indication of what voters want in terms of both the presidency and the Senate. There's no conflict there.

So people who are hoping that Mitch McConnell would not want to move forward, but if this is his statement, it indicates that he will be moving forward, and that that matches with what the American voters would like him to do.

CARLSON: So, assuming this is true, and there will be a nominee, that nominee would have to be announced imminently very soon. Who do you think it's likely to be? Who should it be?

HEMINGWAY: Now, President Trump has been working on nominees since before he was elected in 2016, and he has had a list that he has upgraded and improved over the years, and I think many people think it would be Amy Coney Barrett, if he was to nominate.

She is judge who has a very good reputation. She has been confirmed fairly recently by this Senate. So she has recent relationship with the senators. She's held in high regard and she is also someone that a lot of Americans appreciate.

She faced opposition not as bad as Brett Kavanaugh went through, but there were these senators who derided her for being religious and a judge. And she won a lot of fans by how she handled that.She also had some really interesting rulings on various constitutional issues. And so there's enough for people to feel confident that she would make a good Supreme Court Justice and this is something that has helped Donald Trump in 2016. A lot of people voted for him because they were so concerned about the Supreme Court, it helped him then. We think voters care very deeply about this issue of who sits on the Court.

Democrats have said that if they were to take power, they might pack the court that they would nominate in the mold of a more liberal judge and whatnot, but I'm not sure that that is something that will motivate their voters quite as much as it motivates Republican voters or conservatives who care a great deal about the integrity of the Court.

CARLSON: Given what the left did to Brett Kavanaugh, you've got to kind of wonder if someone like Amy Coney Barrett, who has quite a few children would want to go through that.

HEMINGWAY: I think any decent person has to look in horror at what happened not just to Justice Kavanaugh, but other people who've been nominated to the High Court. Unfortunately, people have really ramped up what they're willing to do to fight someone from serving on the court and anybody who cares about their family, of course, has to be worried.

At the same time, I think the country's appetite for the antics that were deployed against Justice Kavanaugh were because what they really didn't like was the jurisprudence so what they did was invent this horrific and some salacious lies in the face of his family. That went over very poorly with a lot of American voters. And it also taught them that the left opposition right now isn't just to Trump, it is to anyone who gets in their path and it is important.

CARLSON: Mollie Hemingway, thank you for that analysis. Appreciate it.

HEMINGWAY: Thank you. We're going to talk to a former Federal prosecutor, Francey Hakes who joins us now. Francey, are you there?

FRANCEY HAKES, FORMER FEDERAL PROSECUTOR: Hey, Tucker, I am here.

CARLSON: What's your reaction to the passing of Ruth Bader Ginsburg and what's going to happen?

HAKES: Well, obviously, Tucker, it's sad for her and her family, and I certainly am sorry for them and how they're going to mourn her loss. What I can't help thinking though, is that this is just going to roil this election and roil this country.

And I heard Mollie talking about the Kavanaugh confirmation, which was just a shocking event, I think in our country's history, but I think it's going to pale in comparison to what might happen if there is a fight in the next six weeks over confirming the new Justice to the Supreme Court when the election is literally right around the corner.

CARLSON: Are you worried?

HAKES: I am worried. I think that given everything that's happened since George Floyd, Tucker, I'm worried about violence. I think that especially the left has certainly seemed to accept that violence is a way of life. We've got a real war on police happening. We have police officers being gunned down sitting in their patrol cars. And people talking about Bill Barr as if he is a traitor to the country, the Attorney General the United States.

And so I can only imagine that whoever a nominee might be, and going through the confirmation process is going to inspire a lot of violence because I think fascism is really on the march here. It seems to me that it's on the left, and that they're trying to silence one side and make people afraid to speak out and give their opinions.

You know, if you don't want to wear a mask, you get doxed and silenced, and fired and sent from society in shame. So I can only imagine at what's going to happen to this country. It is going to be worse when something like a Supreme Court Justice seat is at stake.

CARLSON: I think you're right to be concerned. Francey Hakes, thanks so much for that.

HAKES: Thanks, Tucker.

CARLSON: Well, as we finish this hour responding to the news of the passing of Supreme Court Justice, Ruth Bader Ginsburg, we're going to end with one of the wisest voices at FOX, maybe the single wisest, senior political analyst, Brit Hume joins us once again.

Brit, apparently, we have a statement from the Senate Majority Leader saying there will be a nominee and there will be a vote. What do you think?

HUME: Well, he said -- well, I don't know. It's not his call whether there's going to be a nominee. I mean, he'll have some say in it. But that's up to the President. What he said was, of course, more importantly, perhaps is the President's nominee will get a vote in the Senate.

Now, you know, that was his instinct immediately when Merrick Garland was pending under Obama, and he moved to expeditiously to say nope, sorry. He is not going to get nominated. The American people should have a voice in this

Tonight, Senator Schumer, his opposite number on the Democratic side has come out with a statement in almost exactly the same words, of course, McConnell's rule about this has been that there should not be a nominee acted on if the President is of a different party from the Senate -- from the leadership of the Senate, which is not the case here. So we know that.

So what McConnell seems to be saying is, if the President nominates, the Senate will vote. He may feel differently about that when he starts counting heads. For example, Senator Grassley told our own Martha MacCallum back in 2018, when he was still Chairman of the Judiciary Committee, and Senator Grassley, a Republican of Iowa that he wouldn't take up a nominee during the campaign in 2020.

Well, he's not the Chairman anymore. That's up to Lindsey Graham, who has said much the same thing in 2018.

So I think it remains to be seen what the outcome will be in terms of what McConnell and Trump decided to do. But that's where -- the ball is really in the President's court and he will obviously have to be informed and the White House will have to be informed by what the Senate Majority Leader says in terms of whether he could rally the votes.

And I think that's a matter that is very much in question at this moment tonight.

CARLSON: The President is still speaking in Minnesota, no indication that he has heard this news, not clear how he could have.

Brit Hume, thanks so much.

Have a great evening. Here's Hannity.

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