tv Americas News HQ FOX News February 13, 2016 3:00pm-4:01pm PST
him. >> chris, thank you for sharing your insights on antonin scalia. i'm going to turn it over to eric and arthel. >> we are reporting on the unfortunate death of justice antonin scalia. he died at the age of 79. we have not confirmed this on fox news, but according to earlier reports justice scalia mentioned to friends he was not feeling well and died in his sleep. the cause of death is unknown at this point. >> he is an american legal giant. the leader of the conservative wing of the supreme court known to be pugnacious and blunt and funny. a leader in so many different issues on the court that face this nation dealing with affirmative action, abortion, for the death penalty, he deeply believed in the constitution and the founding document of our nation's founding fathers.
antonin scalia hunting and vacationing at the sebola ranch. that's a ranch in martha, texas. i have been down there. it's a pretty remote area of this country in the big bend area of texas as arthel said. he was with some friends and apparently was found this morning. we are told a hearse from the town nearby was seen at the site in the last couple of hours. so as we are sadly reporting today, antonin scalia, a legal giant born in trenton, new jersey, grew up in queens, new york, then off to georgetown and harvard making an impact on all the lives of americans in our country. >> absolutely. nominated by president ronald reagan. john roberts is in south carolina in anticipation of tonight's gop presidential debate. and, john, i know earlier we were speaking and you were telling me that you were
following tweets and various postings to this reaction of this sad news. >> good evening to you, arthel. obviously, the twitter responses are short from the campaigns but we are getting something substantial in the way of press releases and e-mails back from some of the campaigns. marco rubio, senator from florida, has just weighed in, quote, today our nation suffered a deep loss. justice scalia was one of the most consequential americans in our history and a brilliant legal mind who served to interpret and defend the constitution as written. one of my greatest honors of my life was to attend oral arguments to see justice scalia eloquently defend religious freedom. i'll hold that memory forever. here's the key here in marco rubio's statement, the next president must nominate a justice who will continue justice scalia's unwavering belief in the founding principles we hold dear. janette and i mourn the loss of
justice scalia and our thoughts and prayers are with the scalia family. now marco rubio and ted cruz have fired a shot across the battle of the senate to say, do not let president obama nominate and have confirmed a replacement to justice scalia. because they know, obviously, that president obama will nominate someone with contrary legal views to those of justice scalia and tip the weight of the court from 5-4 in favor of the conservative side to 5-4 in favor of the liberal side. so they are telling the senate, do not let that happen. which will set up a battle royale i can imagine between the white house and the congress as the president will definitely want to take this opportunity to put in place a justice scalia, the justice of his choice. so we'll see how this plays out in the weeks and months to come. and we'll also see how it plays out in the debate tonight. because you can bet this will probably be, if not be the opening question of tonight's debate, very close to the top. and all of the remaining six candidates in this republican
race will all have something very strong to say about what should happen next. >> and how do you think they will couch their argument, john, in terms of getting that message to the people? of course, justice scalia having been an important person to the supreme court -- how do the candidates make sure they get their message across without being too inside baseball so that americans can understand specifically what it is they are talking about and wishing for? >> well, they will frame it in terms of the issues that are very important to republican voters. in particular, conservative voters. gay marriage, they will talk about abortion, all of the other things that one would expect the conservatives would care about. so they will make those arguments. and i think that you will hear marco rubio, he took it on the chin last week for talking about the obama administration and how in his view the president wants to remake this country, not in the form that america has taken the past couple centuries, but
more in the form of european countries. and saying don't let this happen in the supreme court. stand in his way, block him. i'm speculating on that knowing how marco rubio feels about the issues. certainly ted cruz talked about the importance of following the constitution. so he will make very strong arguments in that particular vane as well. i have been with the candidates on the road a long time now and no one talks more forcibly in terms of the importance for conservatives of having the supreme court that adheres to the constitution than ted cruz. so i think you will hear very strong arguments being made in that front tonight. and in that form as well, appealing to conservatives that they are going to see all of the things they hold deeply potentially disappear if the president has an opportunity to tilt the court 5-4 in favor of the liberal wing. >> john, stand by for us as we come back to you in a few moments. another esteemed american justice is with us. we are honored he's a member of our staff here at fox news.
i'm talking about andrew napolitano who knew antonin scalia. he had a sim poymposium with hit two years ago. share your thoughts with us on the passing of justice antonin scalia. >> it was one of the great privileges of my life to be his personal friend and at times an intellectual continent. we went to mass together, we had meals together and vacationed together. and we had the wonderful experience at brooklyn law school that you mentioned which i was privileged to interrogate him for 90 minutes no holds barred in front of the 2,000 people at the brooklyn academy of music. but he was the leader, the intellectual leader of a school of thought known as originalism, which basically says the
constitution as the supreme law of the land means the same thing today as it did when it was ratified in 1787. and he fiercely defended the original meanings of the phrases in the constitution against the tide of public opinion, which for the most part, takes the opposite view of the constitution. it is maluable and can express the needs of the time. he was so well liked on the court. and the person that was his closest friend was the person he disagreed the most, and that's justice ruth bader ginsberg. it was she with whom justice and mrs. scalia vacationed and socialized more than any other member of the court. that will give you an indication of how charming and lovable he could be even to those who utterly disagreed with him.
>> judge ruth bader ginsberg is from new york. how would that influence his opinions? >> well, the bind was two ethnic kids up from the bootstraps, well educated and ended up in the supreme court together, both wedded to very strong ideological positions. neither was a pragmatist or a politician. neither was interested in putting their thumb on the public pulse. both were interested in weaving into the fabric of law their own views of the constitution. but i think the bond was two things. well, one is less funny. one is a charming personality and a funny personality on almost a prankster personality justice scalia had to make everyone laugh, even people who
disliked him. and the other was, believe it or not, opera. the two of them were not opera buffs but opera fanatics and appeared many times together in full costume as extras in opera, in both washington, d.c. and in new york city. so music soothes the savage breast shakespeare once wrote and can bring adversaries together. >> what does this mean now for the court, for the future and for our nation? >> well, it means you'll see a battle on the floor of the senate in which i expect the republicans who control the senate will attempt to delay the nomination of any offering that president obama may make until after the election. and the democrats who are outnumbered in the senate and can be outnumbered on this will attempt to use public pressure
and public suasion. this is something justice scalia never ever wanted to happen. but it would change the makeup of the court dramatically. if president obama's successor, whoever he or she might be gets to replace justice scalia, then it depends on who the successor is. >> judge, stand by and stick with us as i want to go back to onr john roberts with governor mark stanford. >> reporter: yes, i'm standing here with mark sanford. >> he filled big shoes in the court. we'll see what comes next. >> reporter: we have heard from all of the presidential
candidates, except ben carson, we expect a statement coming from him. only marco rubio and ted cruz, only because they are the senators in this race and have said it should be up to the next president, not this president, to nominate or have confirmed at least a replacement justice for justice scalia. do you think that should happen or should this president be allowed to nominate and confirm his nominee? >> i think that's going to be one heck of a tug of war. you can have all the republicans saying to wait and the democrats to say to go forward. i don't know how that sorts out but i think it will be the tug of war of incredible importance. because you're going to talk about tipping the balance with regard to the courts. and it's going to be a momentous fight. >> what do you think the senators should do? >> caller: i happen to be on the conservative side, so i would say it makes since for the not outgoing president to make the call.
>> reporter: now senator leahy says this could set up a huge battle between the white house and the senate. >> it's going to be a battle with obvious folks on both sides of the equation. my sense is it will be tough to come up with the works for next year. but i'm on the house side so we'll see. >> reporter: in terms of gumming up the works, would that play well for republicans in november or could that potentially backfire on them? >> again, you've got 50 different angles to look at this thing. all i'll stand by is it will be a giant tug of war based on the fact that it has, again, really, really significant implications in what happens to come next with regard to the supreme court decisions. >> reporter: congressman sanford, thank you for joining us. appreciate it. senator lindsey graham is also in the spin room here at the debate side in greenville. we'll try to catch up to him.
but right now back to you. >> as soon as you get senator graham we'll cut back to you. i labeled mr. sanford according to his old position there in washington. but i want to bring back right now, if i may, bring in our judge back in, judge, are you still with me? >> yes, i am. >> judge napolitano is here with us. you mentioned when speaking to eric that justice scalia was a champion of originalism. we all know the complexion of america has changed dramatically. not only in terms of color, but culturally. so with that in mind, how do you think the fight to find justice scalia's successor will play out? >> well, that's probably more a split cam judgment than a legal or constitutional one. but i would think if the president wants to avoid a fight, he would nominate a sort of traditionalist leading
democrat. one who would pry loose some republican votes. if he wants to appoint the opposition number of justice scalia and an intellectual giant on the other side of the political spectrum, say a ruth bader ginsberg type in her 40s, then you'll see the republicans dig in their heels in the senate and not let this come to the floor. then it becomes a major issue in the presidential election campaign. or you'll see some wheeling and dealing whereby some republicans will be pried away from what the majority wants. under the senate rules, one person controls what comes to the floor. it's not even subject to a filibuster. that's mitch mcconnell who is the majority leader, senior republican senator from kentucky. he and he alone determines what will be debated and what will be voted upon. and with a majority backing him,
there is no lawful constitutional way to force that vote other than public opinion. >> judge, if you look at one point, you've got affirmative action, abortion, the death penalty, his intellectualism and what he brought to the court, would you cite or cite one case on his greatest impacts in life where he'll mostly be missed. >> it's hard to say one particular case. every once in a while he had a sort of to libertarian strain with him where he did sign with the liberal justices. particularly in certain criminal law areas where he thought the government had gone too far, especially in cases where -- oh, i can think of witnesses testifying behind curtains in courtrooms, which he felt even though the evidence was credible and the evidence of guilt was overwhelming, it violated the
defense's term for witness and he deviated from the court and joined the liberals. but he is a person who's legacy may well be framed by some of his more vociferous defense. and his defense was usually in the cultural wars of our day. >> judge, i beg your pardon, i'm going to jump in here. what we are going to do right now, we are here in new york, but we are going to toss this to bret behar to pick up coverage in d.c. good evening. >> thank you. this is an amazing day. an amazing day and sad day as justice antonin scalia at the age of 79 has passed away. died according to officials in his sleep after a hunting trip
in west texas. he was first appointed to the bench in 1986 by ronald reagan. considered one of the most purer conservative justices on that bench. someone who was full of life and disarming to crowds as he talked to them around the country. maybe crowds that didn't agree with him, but on the bench also an active justice, perhaps asking the most questions. at first and then throughout his career on the supreme court. this day is historic in that justice antonin scalia was someone full of life to the point people thought he would be there until the end. now it has ended. joining us again on the phone, judge andrew napolitano, judge, i know this is a tough day for you as you were a friend of his as well. >> well, i'm shaken by it. i just learned it in the past half hour as all of us did, although it apparently happened
last night. and you and i talked about him many times on air and off air. it was just one of the great privileges of my life to meet him. about 10, 15 years ago, we struck up a friendship that extended to going to mass together to going on vacations together to having breakfast, lunch and dinner together to confiding with each other s intellectually to me interrogating him in front of crowds and to explore his utterly brilliant intellect, which may leave a jurist absence for us more in the desceissentst he wrote. >> i have been there and one thing that comes to mind is the society of the friendly sons of st. patrick. obviously, as the first italian
american on the bench, he was an honorary member of the irish group. but he always had this ability to touch audiences and to reach out to them even though, as i said, some of them might disagree with him specifically about his ideology and how he looked at things. he was someone who the left and the right looked at as being just interesting in all aspects. >> well, you know, he was very, very smart. he was always the smartest person in the room. and he was also hilariously funny, both in oral argument at the supreme court and in speeches and panel discussions in front of law school audiences and elsewhere. and it was that prankster aspect of his personality which caused him to develop his greatest friendship on the court with the person with whom i can't imagine they voted together more than a dozen times in all the years
they sat together. and that is justice ruth bader ginsberg. bill clinton appointee and literally his opposite number ideologically. yet, justice ginsberg and her husband before he passed away a few years ago probably spent more time with justice and mrs. scalia than any member of the court. by the way, one of the reasons justice scalia was so active in the friendly sense of st. patrick is because mrs. scalia's name is maureen murphy. and i have to tell you, i was with him many times when the sort of italian-irish rivalry was debated over the dinner table. and she would look to me and say, you won't be fair because he's one of you, nino.
>> the bushes, george w. bush and laura bush out with a statement saying, laura and i mourn the death of an important journalist, supreme court justice antonin scalia. he broughtjudgment, intellect and wit to the bench and will be missed by his colleagues in the country. laura and i send our heart felt condolences to his wife maureen and their nine children and the entire scalia family. in the import of what this means for the entire supreme court, where he stood, judge, as far as his writings in both opinions as you said and dissents, how big a loss is this for the court, especially on the conservative side of the court? >> well, it could be a dramatic loss on the conservative side of the court if the president were to succeed in nominating his opposite ideological number.
i mean, if the president is forced to nominate someone more middle of the road ideologically in order to get passed what would probably be a near unanimous republican block on this, that would affect the court. on the other hand, if mitch mcconnell and company can succeed in not permitting this to come to the floor. and you know he has the final say, as long as the republican caucus backs him on what comes to the floor, and there is no nomination out of the senate before election someday. then this becomes a major electoral issue, both the behavior of the republican senators and who should replace him. but i can tell you that there were times when justice scalia was not happy on the court, for a variety of reasons. he was particularly unhappy and difficult to be with, i can tell you, after the same sex marriage decision came down. and the last thing he would have
wanted is for the present president of the united states to replace him. but that's what nature has now brought into play. >> judge, stand by if you will, and thank you fur your time. mitch mcconnell just releasing a statement in the past few minutes through his sheer force of intellect, his legendary wit. he called him a giant of american jurist prudence. senator mcconnell saying the american people should have a voice in this election of their next supreme court justice. therefore his vacancy should not be filled until we have a new president. that from the senate majority leader. let's turn to shannon brean who covers the court for us, chief legal correspondent. should not be filled until we have a new president. that's quite something, shannon. >> reporter: yes, it sets up what could be an epic showdown on capitol hill. you know how tough it is for anybody to get anything done.
this is one of the most substantive things they could possibly do, is to nominate a supreme court justice. so to hear that the current senate majority leader, although republicans do not have 60, it is not filibuster-proof. and there have been a lot of conversations over the last couple years when things can and cannot be filibustered. there's been to this point in agreement that the supreme court justice nomination will not be filibustered. it will be interesting to see how this plays out, but in a more immediate future, there are a number of significant cases in which antonin scalia's vote would be critical and being decided this term by the supreme court. in just a couple of weeks, there is a potentially landmark abortion case. we know where justice scalia was on that and how he felt about the constitutional issue of abortion. the case they're going to be hearing is out of texas. and a number of laws passed there, things for certain medical standards for clinics. things like requiring abortion doctors to have hospital admitting privileges within a
certain rayes. but he would have a big impact on cases, cases they have heard but not issued opinions on. things like affirmative action. there are -- there's going to be a challenge to the contraceptive mandate later in march with the little sisters of the poor. you know the case well of the nuns who don't want to be forced to comply with the contraceptive mandate flowing from the health care law. you know, it's hard to overstate possibly how his voice will be missed in all of these cases. but for now the court will have to proceed with eight justices. and that leaves it in a very unusual place. of course, this is a very unusual circumstance. but to the personal side of justice scalia, he is as everyone is describing him larger than life. tons of personality. i think about the christmas party and they do still call it the christmas party at the supreme court. there's a huge tree, eggnothing, great food but also an area with a piano and carols.
and i can remember occasions where justice scalia loved singing. he's a big fan of opera and loved to take over to sing the christmas carols and assigned people parts. he was a character and did spend a lot of time on the court and off the court with people who he would never ideologically be assumed to line up with. hunting trips with elena keegan and taking her to the shooting range. and very close friendship with justice ruth bader ginsberg. it's going to be tough for them to lose him so suddenly, but these guys are dedicated professionals. justice ginsberg was on the bench the day after her husband passed away. they will show up and do the work and probably will feel an even bigger sense of obligation than they did up to this point with so many big cases coming this term. >> he was larger than life, both on the bench and in his writings, and off the bench in personal conversations and interactions with people.
shannon, quickly, before we talk about the politics of this with john roberts, and a guest down in south carolina, for the other justices there, what does this mean? this is the first justice in the generation who has died while on the bench, most in recent years, in verecent decades have retire obviously stepping down before passing. >> well, of course we had had some speculation as we always do to the end of may or june, the end of the term, will anybody step down? the justices on the left get the most pressure. justice ginsberg and prior would say, don't talk to me about that. i'm not going anywhere. we had not thought about somebody from the right leaving the bench. so it is unexpected. but there is so much work. they are working on drafting the opinions and that has been going
on behind the scenes and has been for months. we are waiting on those and there are cases they will hear with only eight justices. there's the refusal to take it down to seven, but chief justice roberts is making sure the court will run efficiently regardless of snowstorms and deaths. he's got a big job in front of him as the remainder of his term plays out. >> shannon brean, thank you. you can see a live look at the supreme court. the flag is lowered in honor of supreme court justice antonin scalia to die at the age of 79 due to natural causes. we'll go to south carolina now with john roberts standing by with senator lindsey graham. >> reporter: bret, thank you very much. senator graham is a supporter of governor bush from florida. your reaction, first of all, to justice scalia's passing. >> a great los for the country, for the conservative cause.
just a good, decent man whose legacy will last for a very long time. he's an original in many ways, not just legal minded, but just a really guy who was really nice. ruth bader gipsberg was his best friend. so it shows you peacefully co-exist when you disagree. >> reporter: you are one of the people who will be charged with replacing or not replacing the next justice. it will be up to the next president or what do you think? >> it will be. during republican times the and democratic times, i want you to reach across the aisle to be a more centerist person. i told harry reid there will be consequences for the abuse of power and here's the consequence.
i am differential to presidents. this is what happens when you abuse power. i have always said elections have consequences when it comes to picking supreme court justices. but abuse of power also has consequences. i thought about changing the rules on the republican watch when republican bush was frustrated. because i believe in the idea of collaborating and finding consensus when you pick somebody for a lifetime appointment. i don't want elizabeth warren picking the democratic judges. >> the senate should do its duty and consider anyone that the president sends to the senate. do you agree this will set up a huge battle between the white house and the senate? >> it won't be a battle between patrick led the fight to change the rule. we were not abusing power as
republicans. we almost had the same number of votes if not when president obama was agreed. if people required 60 votes and we have people on the executive branch pretty radical. so they ceased the moment. i said, you'll regret this because i have been pretty open-minded about allowing presidents the leeway to pick people who are qualified understanding i wouldn't pick keegan i wouldn't vote for him. but at the end of the day i said, there will be consequences and these are the consequences. >> reporter: sometimes there are consequences to actions of the president sending nominees to the senate and the senate turning them down even though many people on the democratic side, perhaps people on the more moderate side, independents think they would be a reasonable choice. could it potentially backfire on republicans in november? >> they changed the rules, not due to mitch mcconnell or me.
obama has a history of when he can't get something through the legislative process, he just takes it. he's the one who up damaged the senate. it was harry reid and the democratic candidates like that lady who threw the cd in the ditch. . >> let me ask you from the personal standpoint, you are the attorney in the air force, talk to me legally about justice scalia. >> well, he was an originalist when it came to interpreting the constitution. he had an originalist view. i'm more in the roberts camp when it comes to judicial interpretation. but he was an icon. he came with justice briar to do
a meeting at the university of south carolina. and he was the most gifted oritor. his opinions will go down in history on the conservative side. this being the goal standard. so the conservative movement lost a lot here. >> reporter: let me ask you one question back to politics, how do you think the candidates on the stage, in particular your candidate, will frame the potential consequences of justice alito's passing if the president is allowed, this is justice scalia, i'm sorry, his passing, if the president is allowed to have his nomination confirmed, how do you think it will frame that in terms of the debate tonight? how will they reach out to conservatives to suggest we do need to wait for the next president? >> trump, i have no idea. he's not a conservative so i don't trust him on any conservative decision because he's been all over the board. he's an opportunist. most everybody up there would be picking a judge we would be proud of. everybody running on the other side would pick a liberal none of us would choose. so the consequences of this election have become more real.
jeb says every day there will be something that happens nobody anticipated. i know jeb bush would pick a solid constitutional conservative judge to replace justice scalia, but there be probably be more picks to be made for the next president. so for conservatives, i hope you understand that we need to nominate somebody that can do the picking. ted cruz and donald trump in my view are unelectable. they are not -- one is not a conservative, donald trump, and the other person is unelectable. so if you really care about the supreme court, you better pick somebody to get 270 electoral votes. >> reporter: how prominently do you think this issue will figure in tonight's debate? >> i think it will make electability more important. it is not what you say about who you pick shall you win the election. ted cruz has not find consensus inside the body. he's been disruptive and not in a good way. the idea to shut down the government to achieve the goal never made sense to me. i think ted cruz would be a hard
sell. the idea that he wasn't for legal status during the immigration debate -- i don't believe it. i sat right by him. he's not being honest with you when he said he opposed the pathway to citizenship. this is a chance for conservative republicans to understand that you better win this election. you better nominate somebody that can get 270 votes. i think ted cruz would be eaten alive by the democrats based on his two or three years in the senate. >> reporter: we'll have to leave it there. we'll send a ted cruz representative over to rebut that argument. thank you. tonight a sad night. justice antonin scalia at the age of 79 dead. we mentioned that harry reid said, i'm sorry, senate majority leader mitch mcconnell said they should not put forward a nominee. the president should not. the american people should have a voice in the election of the next supreme court justice.
therefore this vacancy should not be filled until we have a new president. well, senator harry reid, the senate minority leader has just issued a statement saying there's no doubt justice antonin scalia was a brilliant man. we had our differences and i disagreed with his opinions, but he was a dedicated jurist and public servant. i offer my condolences to his family. it goes on to say the president can and should send the senate a nominee right away. with so many important issues pending before the supreme court, the senate has a responsibility to fill vacancies as soon as possible. it would be unprecedented in recent history for the supreme court to go a year with a vacant seat failing to fill this vacancy would be a shameful advocation of one of the senate's most essential constitutional responsibilities. joining us now on the phone, jonathan turley, legal expert and law professor at george washington university. first of all, thanks for coming on. your thoughts on this day. >> well, it's terrible -- a
terribly sad moment for all of us. i met with justice scalia on a number of occasions. and -- he was a very engaging person who was not only fun to talk to, but he loved interacting with people. he loved interacting with students. and while often in politics we can't seem to accept that someone can be a good person with whom we disagree, he really was a really warm and interesting person. and he was genuine.
he was unique. and he was also brilliant. he was the key voice in certain areas of the court. >> judge, i want to interrupt you. we are having a bit of an issue with your phone there. we'll try to reestablish connection and a better line. i do want to get your thoughts on a number of other things as far as the legal issues in fulfilling this seat on the bench. we'll try to get you back hooked up. shannon brean is joining us. and everybody, shannon, who talks about justice scalia has that same larger than life, big personality, somebody who could disarm groups that disagreed with him. i want to ask you about this point, though, about what we're seeing already play out in these two releases from senate majority leader mitch mcconnell and senate minority leader harry reid. is there a possibility that the
president, if the republican senate decides they do not want to go forward and will not go forward with the presidential nominee to fill this vacancy, that the president could have a recess appointment to this vacancy. in other words, when the senate is on recess, the president appoints and then sits in that vacancy, vacant seat until the senate comes back in this session? >> reporter: right. i think we both would imagine that the senate will go in recess. it depends on what they will face, but if mitch mcconnell says true to his statement, they will not go into recess. they will find a way to keep it moving and going. by the way, there was a recent case on recess appointments just in the last couple of years at the supreme court where the president or the executive branch essentially lost because the court found that the president had gone too far in making recess appointments to the national labor relations board. it was very significant.
and the supreme court batted him back on that, including, i believe, some of his appointees. so the court looks down on any kind of shenanigans, the way they view it, if it is not a legitimate recess. if mitch mcconnell says true to his word, he will find a way to keep the senate in session in order to avoid that situation, which would essentially just gum up the works until we have a new president. >> the prospect, though, of what senator graham talked about, a consensus candidate that republicans and democrats could agree on to fill this vacancy seems in our current partisan situation here in washington to be a long shot. >> reporter: yeah, i don't know if that person exists. they would be very tough to find. something that -- someone that would satisfy both sides, because the court is in such a delicate balance. so many 5-4 decisions and opinions on very critical landmark issues right now. i don't think that the right is going to want to concede
anything -- i think there is going to be an epic battle that we may see on capitol hill has this plays out. and we still have the matter of opinions coming this term that are very significant, that, you know, what happens to the cases that they have already heard but we have not seen the decisions yet. we know they have been riding the opinions. where do we go from here? when you have a tie case that we have in a 4-4 decision, what you do is stay with the lower court's decision. that will benefit the right in a couple cases. the abortion case out of texas and the challenge to executive action by the president when the took executive action with regard to deportation and immigration. the conservatives won those decisions. so if the supreme court hears those cases as they plan to in march and issue a 4-4 decision, and it could -- it's not necessarily going to be 4-4, but if it is the lower court decisions would be to the benefit of those on the right or the conservative side of the issues. >> shannon, thank you.
stand by. just interesting facts about justice scalia on this day where we remember his life at the age of 79, passing of natural causes after a hunting trip in west texas, condolences to his wife maureen. they had nine children. during his nomination hearings, it was remarked that as a parent he had much experience in working with groups of nine, which he laughed heartily at. he was only 50 when the nomination hearings took place in 1986. president reagan nominating him to the bench. he was at that time the youngest supreme court justice up until the time that elena keegan took the title in 2010. he loved the opera and appeared as an extra in the 1994 production of one of the operas here in town. scalia appeared on stage for about an hour and had a huge
costu costume. and he took great pride in that moment. some fun facts about antonin scalia who around town was someone that everyone knew at washington events. joining us on the phone, sue century es estridge, you worked for justice stephens. you have a perspective on justice scalia. >> you know scalia has been well-known to me and others. he was an academic before he was a judge. he was a highly respected, absolutely articulate that wrote a great deal at the chicago law school, which was the base for the legalist movement and the federalist society. i think i heard somebody say earlier, well, i probably disagreed with him on everything, he was widely known in legal circles for his good
humor. he was very close to ruth bader ginsberg. they were sort of an odd couple. she's the justice who probably agrees with me and i agree with her on the left. so he was a real tower. he was the leading conservative on the court. a brilliant writer. and it's a huge loss for conservatives. i also think it is going to be very difficult as you were saying to get anybody confirmed right now. it's going to be a circus. >> well, and obviously the politics here, susan, quickly, it will factor in to this presidential campaign on both sides of the aisle. it was talked about briefly about the importance of this job nominating to the u.s. supreme court, but now it will take front and center position. >> maybe. i heard senator graham earlier. i've been in a lot of campaigns where we have tried to make the supreme court an issue. we've tried to say, look, what is at stake here is not just heo
next four to eight years, but in court the justices will likely outlast whoever is elected president. and i have never found that it moves numbers in polls. now, we'll see this time around because we actually will have an open seat and it will be very clear to everyone, particularly if there's a nominee getting batted back and forth or as you called it, shenanigans. it will be clear that at least one seat and likely more is up in this election. what remains to be seen is whether voters will ever vote that issue. and i got to be honest, as compared to the economy and terrorism and personal security, we've never on my side or the other side been able to make the supreme court a real voting issue. it should be but it isn't. >> susan, as always, thank you for your comments. joining me now, chris wallace, the host of "fox news sunday." chris, your thoughts on this evening.
>> well, antonin scalia, obviously, and you have heard this over and over again, was a giant. interesting, we had him on the show in 2012 on "fox news sunday." he had written quite a technical book, but one of the ways you could eventually, hopefully book a supreme court justice is they had written a book. they wanted to come on to promote it and that gave us an opportunity to talk about a lot of stuff. and he described in a way that i had never heard before his judicial philosophy. he talked about textualism meaning the words say what they say. the constitution has a right to bear arms, then it has a right to bear arms. back in 2008 he was the justice who wrote the decision that basically upheld here in d.c. when there was a ban on handguns, the right to bear arms. so first of all, textualism. and then originalism. that meant when you look at the text, you look at it in the
context of when it was written in the 18th century. so, for instance, he said on capitol punishment, if people thought that the electric chair or lethal injections was cruel and unusual punishment, back in the 1700s they hung people and the idea of an electric chair was seen as a more humane way to do it. so he's got that the idea that somehow that was cruel and unusual punishment. textualism and i want to read to you a quote, i talked to him about the fact that there's not politics in court, but the republicans will appoint one kind of justice and democrats will appoint another kind of justice. and i said, well, given that, would you like to make sure since you're a conservative that you have a conservative president who was appointing your replacement when you left the court? obviously, he thought under
different terms than tragically today, and here's what he said, i would not like to be replaced by someone who will undo everything i've tried to do for 25, 26 years. sure, i mean, i shouldn't have to tell you that unless you think i'm a fool. and that just tells you a little bit, gives you a little bit of the flavor of antonin scalia who was delightful, combative and clearly wanted to make sure that a conservative was going to replace him on the supreme court. i can also tell you just briefly that i had the good fortune after that interview, we got along very well, we had a dinner at our house. and i didn't know what was going to happen, i called his chambers and invited justice scalia and mrs. scalia to come to our dinner for home. he came and was delightful company. there were some liberals there and he enjoyed mixing it up with them. but what i remember most about it was we had won an auction and had an italian chef cooking dinner. and i think scalia spent half the evening not at the dining
room table but talking to the italian chef in the kitchen and finding out how he was making all of these dishes. he loved good italian food. he loved good italian wine. he loved life, which is one of the reasons why everybody you're hearing from today is mourning his loss, both professionally and personally. >> that's exactly right. and he was a larger than life figure. and before anybody gets into all of this talk about cocktail parties and social events he goes to, he was an inside washington character. he was, but if there was anybody who was not p.c., it was antonin scalia. both what he talked about and also on the bench. he raised issues and talked about things and asked questions that up until his time on the bench were not asked. chris, it's interesting to point out that some of the supreme court cases this session have already been heard but have not been decided. you have affirmative action, the fisher case, the forced union dues, the fredericks case, the voting rights issue, the harris
case, they have been heard in arguments before the supreme court with antonin scalia on the bench. they have not yet been decided. and there are upcoming cases that are major cases. the texas abortion case, the little sister of the poor case that shannon referenced earlier. it's that shannon referenced earlier. it is tough to overstate the sadness of the day and the importance of this on the supreme court and in washington politics. >> i have listened to your conversation, brad. there is going to be a huge battle now in washington about whether or not barak obama who has 11 months left in his presidency whether he can appoint scalia's successor. you have heard them saying no, we will wait for the next president to decide it and you will hear liberals and democratic members. you can't have a supreme court
and split down the middle four conservative republican appointed and four liberal democratic appointed judges. they are going to split 4- 4 and my understanding there is no decision. you can't decide a case on a tie. there will be a lot of pressure that bark bookkeeper obama and the democrats will say we have a opening and we need to fill it. and if a liberal or democrat replaces antonin scalia on the court it splits the balance and 5- 4. and stakes are not just higher. but usually the supreme court is not a big issue. but if it plays out in real time and i fully expect bark bookkeeper obama to name a successor and that person goes up and the republicans have a majority in the senate, they
decide to block it, you don't think it is a huge issue? i would think that wouldn't you think this is john dickerson's first question in the debate tonight? i know you and me and if we were moderating the debate, that would be the first question. what p justice scalia and should president obama appoint one. >> chris, as always thank you. he is a prolific writer of dissents. in the same- sex marriage wrote a scathing dissent in that case just months ago, national right to life presidents issued a statement. we are deeply saddened about the death of justice scalia.
he issued powerful critiques of the you judicially manufactured barriers that limited such efforts. our thoughts and prayers are with justice scalia's wife and family. there will likely be more to come. kevin has more from the thoughts of the white house, kevin? >> reporter: a number of occasions, to talk about the experience that the supreme court will play on the obama agenda. the legacy rests in the hands of the justices. it would mean a great deal to the white house and president if he were able to name a new justice to the supreme court pending a confirmation. we have heard a statement from the deputy principle white house secretary. he said the president was informed of the passing of
supreme court justice scalia. and the president and first lady extending condolences to the family. we will not read too much into that. if they are telegraphing that the president will have more reaction later, he could step in front of a camera i haven't heard that. but it would be one of those circumstances, brett. >> you have been listening, kevin about the back and forthwith the senators mcconnell and reid about their releases whether the white house should, can and put it forward with a republican senate. any reaction from the white house? >> reporter: this is so important to the white house and administration, you will hear them trot what you heard from the senate minority leader harry reid. it would be unprecedented for a better part of a year you
would not fill a seat on the high court with so many pressing issues before it. they are major issues that were heard before the full body already. and while the white house will be careful over the next 24- 48 hours on how they handle this, expect the narrative that they feel like it is only the right for the president to nominate, but expect congress should get it done. if 0 is long odds, it is going to be long odds, brett? >> kevin, thank you. and still on the phone with us, judge andrew napolitano, our judicial analyst and knew justice scalia well. we talked earlier, judge, about the man and legacy, this back and forth about the appointment seems a little misplaced on the day we are talking about his
life. but judge, weigh in on that for me. because it seems to be playing out in press releases by the minute. >> well, you know obviously, everybody thinks of the success issor and those of us who knew him well are shaken by this and thinking of his immortal soul and mrs. scalia and his nine children and grandchildren. a couple of children is clear. the supreme court ruled that the senate decides when it is in recess, just because it is a saturday night and no one is in the senate floor does not mean it is in recess. under the senate rules and senator graham alluded to them earlier, mitch mcconnell decides what comes to the floor. if he decides no vote he will have no vote. and he will have to deal with
the political repercussions. he doesn't wish to be reflected on on him but injected as a major issue in the campaign. third, there's never been a vacancy in the modern era for what would be 12 months. we are in the middle of february and the new president will take over 11 months from now. and if there is a tie, 4- 4, that affirms the decision below, and the decision below becomes the law of the land. >> right, exactly, judge, quickly. your thoughts on the man and ho you and i talked about his dissent in the same- sex marriage case. >> he wrote with ferocity and he wrote with clarity and he wrote for history. and i think he came to realize
that probably about five years ago, that he would rarely be in the majority and that his dissents might become the law of the land long after he was on the court and that's why the dissents were so colorful and clear and oftentimes many times from the opinion. >> judge napolitano, thank you for your time on this sad night. now a look back on judge scalia's life and legacy. >> reporter: supreme court judge scalia was found dead in a luxury ranch in texas. scalia was appointed by president ronald reagan. he was a guest of the greek ranch never marfa, texas. he a ratified on friday and attended a party. and he didn't show up for
breakfast, a person who worked for the ranch and found judge scalia's body. there was no evidence of foul play. it puts the court in to play. mr. obama is likely to appoint someone far more liberal than scalia. one of the most important cases is the texas abortion law. scalia was the father of nine children and longest serving member of the court. >> he was so well liked on the court, the person who was his closest friend was the person he disagreed with more. and that is justice ruth va der- giowa ns berg. it was her with whom they vacationed. and that is how charming and loveable he could be even to those who challenged and ultimately disagreed with him.
>> scalia was a lawyer in the '60s and worked in the neckson administration. no word yet on who is on the short list to replace scalia on the nation's highest court. in new york. brian ensis. >> new special coverage of the death of justice antonin scalia. he died in his sleep in a private resident in south texas. he was on a hunting trip. scalia was an influential conservative and his death loves the court in a stalemate. the task of nominating a replacement falls front and center in the the campaign. it will