tv The Greg Gutfeld Show FOX News February 13, 2016 10:00pm-11:01pm PST
a fox urgent supreme court justice antonin scalia has died. tonight we take a look back at his contributions to the law and the battle ahead over who will take his place on the country's highest court. good evening, i'm john scott. this is "the fox report." at 79 years old, justice scalia was the longest serving justice of those currently serving on the court. reaction pouring in from around the country now as the nation remembers the legal giant known for his conservative stance and historic rulings on controversial issues. issues including affirmative action, abortion, same-sex marriage, and immigration. chief justice john roberts making this statement, "on
behalf of the court and retired justices, i am saddened to report that our colleague, justice antonin scalia, has passed away. he was an extraordinary individual, a jur ris edist adm his colleagues. we extend our deepest condolen e condolences to his wife mauer wen and his family." president obama going in front of the cameras this morning this evening saying now is the time to remember scalia's legacy and ordered all flags to be at half-staff. all this as we are learning more about justice scalia outside the court. his friends telling fox ynews h had a great sense of humor. kevin. cork is at the white house with more on the president's comments. peter ducey takes a look at the looming battle over the justice'
successor. but first to shannon breen. >> when people say he was larger than life, that was true onned a off bench. he was a spirited an aggressive questioner during cases. he often provoked laughs. he was very witty but he was very pointed and you never had to question where you stood with him or where he stood on issues. he looked to the original words of the constitution or law as it was written and gave the words the meaning at the time that they were written. he said that was his judicial philosophy and that's what he stuck to through his decades on the court. it is hard to imagine now, but he has approved in a senate confirmation unanimously. it is hard to believe and think about in today's partisan divide how that would be possible. but justice scalia was also off the court somebody who socialized with those who were
ideologically very different with him. he had a very, very close friendship with justice ruth bader ginsburg and her husband. the same could be said of the newest justice on the court. he got her to go to the shooting range and even go hunting with imwill. again, very opposite when it came to decisions on the court and their filphilosophies but h reached across and he was very gregarious. he was always having a good time. i think of him at christmas parties at the supreme court, assigning people parts and playing parts himself, really enjoying the process. pe loved good food and good wine. he loved to travel and kept a very hectic schedule even in the last few years as i's proechd his 808th birthday next month. there are many issues being
challenged. many decisions where his voice will be missed. it would have been very much one of the lauded, most spirited advices we would expect during those considerations. but a number of cases the court has already heard that haven't been released yet. behind the scenes, chief justice john roberts is having to make a lot of important decisions. he's always been very committed to having the court move forward. now he has the biggest of his time as the chief justice in deciding how to move forward without justice antonin scalia on the court. >> shannon, tell us how it works. because there are some cases on which justice scalia and the entire court have already voted. but those votes will now be annulled? is that correct? >> what happens is not too long after they hear a case after it is argued they vote behind closed doors. those votes remain a secret because then they begin writing the opinions. the dissent opinions. those things can change.
a lot of times as those are being written, you try to persuade someone through your writings to change their vote. for editions that haven't been officially issued by the court, they don't count because somebody could have changed their vote the night before. those were very much still in flux and it will remain to be seen whether the chief justice will issue some of those opinions where possibly justice scalia's vote wasn't a deciding vote, something that was 9-0 but will come out at 8-0. but it is almost undoubted justice jal ya scalia is writin one of the big decisions we are waiting on, so that will have to be go to scratch. but the lower votes they took behind closed doors just won't count. >> fascinating. shannon, thank you. lawmakers on capitol hill reacting to the death of justice antonin scalia tonight. house speaker paul ryan ordering
all flags at the u.s. capitol complex lowered immediately to half-staff in honor of justice scalia. peter, what is the argument that republican leaders are putting forward to leave an open spot on the court until next year? >> reporter: john, the argument from the senate majority leader, mitch mcconnell is pretty simple. he just thinks that american voters in the next presidential election should have some kind of influence from this. he thinks that when voters go to cast their ballots for the next president, they should know that they are also casting a ballot for someone who will be in office for at least four years, longer than president obama has left, and who will be making the decision about who gets the next lifetime appointment to the supreme court. when mcconnell announced that he wants to wait until the 45th president is sworn in, it sent a shockwave through washington and he is getting some back-up. there is momentum now building on the republican side for this
idea. the chairman of the senate judiciary committee, chuck grassley of iowa, now says given the huge divide in this country and the fact this this president above all others has made no bones about his goal to use the courts to circumvent congress and push through his own agenda, it only makes sense that we defer to the american people who will elect a new president to select the next supreme court justice. there is a long-time tradition here in the senate, the thurmond rule where the senate just stops confirming nominees for lifetime points the summer before a presidential election. we've obviously already gone well past that point. it does sound like republicans want to keep with that tradition. but president obama wants to nominate someone, he says he will in due time. and president obama can always go around them and make a recess appointment. sounds like republican senators tonight are really trying to raise the stakes of the next election while democratic senators are trying to let somebody who's already won two elections sect a thilect a thire
to the supreme court. >> what about the democrats? are they willing to wait to fill the vacancy? >> no. senator harry reid, the minority leader, is very clear. he thinks that waiting from now until another president is sworn in without a full supreme court or without at least trying to fill the supreme court would be unprecedented and he's got some back-up from that -- to that argument from the ranking member of the judiciary committee, who says it is only february. the president and the senate should get to work without delay to nominate, consider and confirm the next justice to serve on the supreme court. if president obama tries to avoid all the trouble with the senate and he doesn't want to wait and make that recess appointment, he could do it in the next week because right now the senate and the houts are already in recess. but reid says the senate would be abdicating their duties if
they are not the ones who go ahead and have a confirmation hearing for the next justice. you mentioned speaker ryan on the house side has ordered all flags on the capitol complex be lowered to half-staff. so outside the capitol there will be signs until coming days and weeks for remembrance for justice scalia but inside there is already a bitter battle brewing. >> all right, peter, thank you. president obama with a statement just moments ago on justice scalia remembering him as someone with a brilliant legal mind and a decisive wit. >> justice scalia dedicated his life to the cornerstone of our democracy, the rule of law. tonight we honor his extraordinary service to our nation and remember one of the towering legal figures of our time. >> white house correspondent kevin cork is reporting live
from the white house tonight. what did the president say about the life of justice scalia? >> john, thank you for joining me tonight. it is a great evening to be here to mark this memory. this occasion. this is a huge, luge loss, not just for the high court but for american jurisprudence. the president said as much in his conversation tonight before reporters in california. he hailed justice scalia as one of the great minds in american jurisprudence. even some detractors are saying that tonight. keep in mind we are talking about a man who wasn't just a powerful voice, he was also provocative from the bench. >> a brilliant legal mind with an energetic style, incisive wit and colorful opinions. he influenced a generation of judges, lawyers, and students and profoundly shaped the legal landscape. he will no doubt be remembered as one of the most consequential judges and thinkers to serve on
the supreme court. >> no question, a man with lom he rarely agreed, john. but certainly respected. >> fascinating language the president used. said he will name a replacement in due time. what is "due time"? >> great question, right? that could mean anything. that could mean recess appointment. that could mean we're going to fight through the entire process. but make no mistake, the president was very clear that he intends to do just that, and that is nominate a replacement for the high court. >> i plan to fulfill my constitutional responsibilities to nominate a successor in due time. there will be plenty of time for me to do so and for the senate to fulfill its responsibility to give that person a fair hearing and a timely vote. these are responsibilities that i take seriously, as should everyone. they're bigger than any one party. they are about our democracy.
they're about the institution to which justice scalia dedicated his professional life in making sure it continues to function as theby conof justice that our founders envisioned. >> spoken by a man who is a constitutional attorney, right? let's show you what republicans are saying. i think peter alluded to this earlier. senator majority leader mitch mb mcconnell saying the american public should have a voice in the selection of the next supreme court justice. therefore this vacancy should not be filled until we have a new president. obviously president obama has already had two nominees confirmed by the senate and they've made their way to the high court, a pair of women, justice sotomayor and justice kagan who was a fairly good friend to justice antonin scalia. i want to circle back to something peter alluded to.
when you think back to the number of occasions that the president has gone his way alone on executive actions, it does beg the question, might he be willing to go it alone again in this circumstance? there is a name i want to throw your way quickly, john. it is a moderate, the white house will tell you. he even clerked for a republican. we'll see who makes its way to the senate. >> the is that the in recess until the 22nd of february. if the president were to get out in the next week or so, and name a replacement for justice scalia, it's a recess he has the power to do it without any confirmation from the senate. correct? >> that's absolutely right. therein lies the rub. if he decides to do this, he could really end around them. obviously being here in washington, we've talked about this on a number of occasions,
that's precisely the sort of thing republicans don't want to see happen here. but given the resistance we're already seeing from mitch mcconnell, it is certainly a possibility, john. >> gets back to the president's phrase about in due time. what will that be. it will be fascinating to see. kevin corke, thank you. former president george w. bush also calling scalia's passing a major loss. he released a statement saying laura and i mourn the death of a brilliant jurist and important american. he was a towering figure and important judge on our nation's highest court. he brought intellect, good judgment, and wit to the bench, and he will be minneapolised by his colleagues and our country." right now we are continuing to follow breaking news after supreme court justice antonin scalia died in texas. he was 79 years old. reactions are pouring in tonight from the 2016 presidential
candidates and more. that's all coming up -- next. >> he was absolutely hilarious. i mean side-splitti intingly fu. many of us had tears rolling down our face as he told stories of the court. i was deeply we always were told we were german. we were in a german dance group. i wore lederhosen. so i just started poking around on ancestry. . ancestry dna. it turns out i'm scottish. so, i traded in my lederhosen for a kilt.
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the politics will come later. i know everyone wants to get into the politics right away. obviously i think there is important things to talk about tonight at the debate in regard to this and the important decisions that presidents have to make and it is sort of a big reflection as to the magnitude in the hands of americans in choosing a person to lead this country and what's at stake and certainly picking people to lead our court is one of the greatest powers of a president. >> right now, the republican presidential candidates are reacting to the news of supreme court justice antonin scalia's death. senior national correspondent john roberts is live in greenville, south carolina right now. bring us up to date, john. what are they saying? >> reporter: john, good evening
to you. as expected, the very beginning of the debate was consumed by the news that justice scalia had passed and the candidates' reaction to it. as you can imagine, they all mourned his passing. but to a person, they also said president obama should no the be one to nominate a successor to justice scalia, that it should be left to the next president. way marco rubio and ted cruz talked wben carson as well sets up a potential bat many between the white house and congress over whether the president would get his nominee through. john cakasich sort of appealed the sort saying i wish he would nominate someone who would be a consensus candidate that we could all agree on, echoing what lindsey graham said to me earlier this evening. i think in terms much presidential debate going forward what it will do is
really create a new sense of urgency the republican candidates will use about the consequences, as they say -- this is their position -- of the democrat winning the white house in november and as well the issues that are facing republicans this year. but here's the potential pitfall for them. that is, if they do not cede to the president's wishes to confirm a nomination for 11 more months, the democrats would use that as a stick to whack them with all the way through to november. there is the potential for some consequences here. i expect that president obama will start firing nominees toward the senate in the same way that nolan ryan used to throw fast ball. another issue may arise in the presidential campaign as well and that is electability. who is the candidate who is most likely to defeat the candidate in november and have the opportunity if indeed the senate does not confirm one of
president obama's nominees. who will be the republican candidate most likely to defeat the democrat and have the opportunity next year in 2017 to nominate a replacement for justice scalia. this debate is just beginning. it is going to get very political. hang on, because it is going to be an interesting ride. >> obviously, those running for president have to be prepared for all kinds of things. but i wonder how many of those candidates have actually prepared dossiers on potential supreme court justices? do you get the sense from covering them on the campaign trail that this is something that many of them have already started working on, i mean prior to justice scalia's death? >> i think for the most part they have an idea of type of justice that they would want to nominate, the type of judicial philosophy, ideology they might follow. as to whether they have dossiers on all of them, i wouldn't expect too many candidates do. jeb bush, i would suspect with
his operation with the bush family, ted cruz who is a legal scholar and is the only candidate who's actually argued before the supreme court probably has an idea of who he would like to nominate. but i think they'll all get together of putting together a short list of who are the type of people you'd like to see on the supreme court. >> fascinating. republicans fear they might not be able to hang on to the senate in this next go round because they are defending more seats than the democrats are. even if the white house were to change hands to the other party, there could be a democratic majority in the senate if in fact the next justice is chosen in the next senate. so much of this is up in the air. >> there's no question that the senate math for the republicans is much more difficult this year than it was in 2014. but it is a roll of the dice. we'll see what happens in november. but -- the chips may fall where they do in november.
but i think republicans almost to a person are pretty firm in this idea that they do not want to give barack obama a chance to nominate a supreme court justice. marco rubio bringing up the idea that there hasn't been a supreme court vacancy and one that has been filled in an election year for some 80 years. justice kennedy was confirmed in '88 during an election year but it's been 80 years since the whole thing happened in a single election year. i think a lot of republicans are going to say the precedent is there to not do this. but i doubt if president obama is going to listen to that rationale. >> you have to go back to 2005 and chief justice rehnquist, the last time a sit lting justice dd in office. the democratic presidential candidates are also reacting to the death of justice scalia tonight. hillary clinton released a statement reading my thoughts
and prayers are with the family and friends of justice scalia as they mourn his sudden passing. i did not hold justice scalia's views but he was a dedicated public servant who brought energy and passion to the bench." senator bernie sanders spoke to fox news sunday anchor chris wallace. >> there is already a fierce argument after the passing of justice antonin scalia. democrats say the president should name and the senate should confirm his successor. republicans say that should be left to the next president. where do you stand, sir? >> i think we want a full contingent on the united states supreme court. they're dealing with emore muno important issues. constitution is pretty clear. let's get on with that business. >> catch the rest of that interview with bernie sanders tomorrow on "fox news sunday." chris wallace also talks about senator marco rubio. check your local listings for
times in your area. search engine google seeing a big bump in certain searches as america learns about the death of supreme court justice anthony scalia. according to google data the top trending issues tonight include scotus and gay marriage. >> well, since the sat news of the death of justice scalia broke, americans around the country have been googling to find out more about the man but also more about the supreme court. google trend shows us the top five questions searched about the supreme court tonight. the top trending question right now is -- what happened when a supreme court justice passes away? well, whether a justice dies, retires or resigns, it does not matter in practice. it leaves a vacant seat on the bench that needs to be replaced. the last two supreme court justices to die on the bench were chief justice william rehnquist in 2005 and chief
justice fred vincent in 1923. chief justice john roberts was appointed three weeks later in 2000 a.m. what's extraordinary is this will only be the third time in history a president has tried to fill a vacancy during a presidential election year. it happened in 1988 and in 1968. the second question that's being asked right now is how many supreme court justices are there? there had been nine justices on the supreme court since insurance 1869. before that, the number of judges fluctuated between five and ten. congress has the power to decide how many justices there should be ultimately. the third question -- who appointed scalia to the supreme court. president ronald ray gran appointed justice anthony scalia in 1986. he was only 50 years old making him the youngest on the court at the time. italian-american justice served 29 years and four months.
he was the longest serving of the current nine sitting justices. now who -- the fourth question we have here is who appoints supreme court justices? americans want to know this. really, tbs the president who appoints it and the u.s. senate has to share the responsibility eventually confirming that choice. and the final question that people are asking on google is how are supreme court justices appointed? it is the president's constitutional responsibility to select a successor. the president chooses a no many knee and after consulting with senate party leaders and senators from that nominee's home state. then that nominee faces a series of contentious hearing with the senate judiciary committee. the committee then makes a recommendation backing or not backing that nominee. senate then votes and the nominee is appointed. if they receive a simple majority, they just need 51 votes. whole process can take up to three months under normal circumstances. this is not a normal
circumstance. a majority republican senate, very, very unlikely to confirm a liberal nominee any time soon from a lake dumb president during such a contentious presidential election. >> judge scalia was unanimously appointed by the senate. but these days, that's unlikely to happen. stick with us for the loss of a legal giant. next we'll talk with a former law clerk for justice scalia for
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it's time for you to make the calls, so call your doctor to see if ...myrbetriq may be right for you. visit myrbetriq.com to learn more. good evening, i'm jon scott. it is the bottom of the hour. if you're just joining us, united states supreme court justice ant stonin scalia has d. after not he was known as an influence and provocative conservative member of country's highest court, first nominated in 1986 by president ronald reagan, he went on to be its longest serving member of the sitting justices now making historic rulings on cases including second amendment, abortion, campaign funding with privacy and more. reactions to the news of his death are pouring in tonight. edwin meese served as attorney general under president reagan.
meese is now the heritage foundation's ronald reagan distinguished fellow and released a statement that reads, in part, he was an historic jurist, an exceptional legal similar and stalwart defender of the constitution as given to us by the nation's founders. he fulfilled president reagan's greatest expectations by his commitment to the law and personal integrity. he is survived by his wife maureen and nine children. he was 79 years old. for more on this, chris landow is a former law clerk for justice scalia. he joins us by phone. i want to take you back to when you were applying to be -- for that position and you found out that justice scalia had accepted your nomination. tell us about that time. >> well, first i was put in touch with justice scalia. i was told to come down to washington for an interview with
him. you can imagine that was a fairly intimidating experience for a second-year law student. but he couldn't have been more charming and easy to talk to and all-around engaging person. i was fortunate enough to get the job. and it was really one of the highlights of my life to have an opportunity to work with him at the supreme court for a year. >> he was quite close on the court to justice ruth bader ginsburg. ideologically, i can't think of two justices who are more opposite, but in terms of their personal relationship, apparently quite close. did you see that during your time as his clerk or was she not on the court at that time? >> she was not on the court at that time but they were already very close friends from the days of their service together on the federal court of appeals in washington. they both served there together. that's i think where they really
became very close social friends. he was someone who was always very able to separate his work from his personal life or private life and actually had very many close friends on all kinds of -- all sides ever of the political spectrum. i think his widely admired and praised even by those had didn't share his ideology. >> i'm not a lawyer but i enjoy reading his opinions as issued on various supreme court decisions. tell us about his intellect and just what it is that made him such a foundation of this supreme court. >> i think it's two fold. one, he was just a very deep thinker and really got on to the supreme court already having
firm views about the proper judicial role and proceeded to consistently implement those views. secondly, he was just a remarkably good and readable writer. i think he really chamnged the terms of the debate about both having a very consistent, very rigorous lawyer methodology of analyzing text and not simly ruling based on loosey-goosey policy arguments, but going back to the lawyer's initial tool box that had fallen into diss use by the '60s and '70s. i think now justice scalia's approach is pretty much accepted across the legal profession. he passed today in a physical sense but his legacy lives on very strongly in our legal culture. not just on the right but really across the legal culture -- all sides i think now are influenced
by the way justice scalia approached legal questions. >> so much goes on lined the sce -- behind the scenes at the supreme court is such a mystery to the rest of us. but are there times you can think of when his tremendous mind, when his writings, when his opinions changed the minds of other justices? did rulings change because of his powerful thinking? >> oh, absolutely. i mean the justices are always trying to convince each other an -- he had such a way with logic and with language that he could certainly sway somebody who was on the fence. so absolutely. he wasn't one that was given for trying to lobby other justices in that sense. i mean i think he let his
thoughts and his writings speak for themselves but they were so powerful a that they often hit. >> chris landow, a former law clerk for justice antonin scalia. chris, thank you. we will have more continuing coverage on the death of supreme court justice antonin scalia coming up. we will speak to a former law clerk and member of the bush administration who knew him as well. stay close. i tried depend last weekend. it really made the difference between a morning around the house and getting a little exercise. only depend underwear has new confidence core technology for fast absorption and the smooth, comfortable fit of fit-flex™ protection. get a coupon at depend.com trust number one doctor recommended dulcolax constipated? use dulcolax tablets for gentle overnight relief suppositories for relief in minutes and stool softeners for comfortable relief of hard stools.
them? and so i will use -- i will use the federalist papers, the writings of madison, hamilton and jay, but i won't use it because they were the drafters of the constitution. jay was not one of the drafters. but those papers do show what those words meant to the society that adopted them. and that's the same thing i do with legislation. what do those words mean. what's the fair understanding of them. >> justice scalia from his own words from 2011 there. a fox urgent tonight as we mourn the loss of supreme court justice antonin scalia at the age of 79. as lawmakers and colleagues reflect on his influential career. joining us by phone, former deputy assistants attorney general in the department of justice under the administration of george w. bush, former law clerk to supreme court justice
clarence thomas. john, give us your favorite antonin scalia story. >> well, i'm sure everybody who's been with you tonight has his or her own favorite. mine was when i was a clerk at the supreme court and washington lawyer. he would sometimes go to this restaurant which was his favorite one in washington. which is no longer there. and it looked like a restaurant right out of gof "godfather." it was dark, checkered tablecloths, italian music playing in the background. you thought you were going to have this great feast with him, spaghetti and meatballs. and he always ate at most disgusting thing on the menu -- white pizza with anchovies. he loved it. he was always witty, bandering,
engaging conversationalist, always the life of the party, the center of the lunch. every now and then he would just broke out and sing along with the italian operas which i think he newbie heart. i always remember that as more of the measure of the man than what you might see when he was asking questions or giving speeches in formal settings or reading his opinions. >> he served on the supreme court longer than any other justice who is currently sitting. one of the longest serving in the nation's history. but be that as it may, tell us about the impact that he has had on this court. although he is gone, what is the impact? what is his lasting legacy? >> i think in our lifetimes there were probably two great justices who were never the chief justice. on the liberal side be with that would be william brennan who was the great leader of the warren court. his counterpart would be justice
scalia. i think justice scalia is probably going to go down as the greatest of the conservative justices of our time. when he got on the court, the court was not especially conservative. it was still sort of split. i think it was really scalia who put the intellectual stake into the heart of the warren court. and i did that -- i just saw -- you just had on chris landau, one of justice scalia's favorite clerks. justice scalia brought a renewed rigor to what the constitution was and how to interpret it. before scalia came, justices would say things like we can find the rights of individuals in emanations of different texts. scalia said, no, you start with the actual words of the constitution as those who wrote it understood them. this is still a -- the starting point around now which most lawyers and judges begin their arguments about the constitution. and then second, he said the judicial role is a limited one.
most decisions are supposes to be left up to the american people, through the democratic process, the judiciary is to get out of the business of free wheeling and making up new constitutional rights. of course, there are many justices and judges who disagree with that. but the liberal enterprise -- the warren court revolution came to a stop at that time when scalia came on. now if you look at the constitutional debate, i think on the progressive side of the law people are trying to answer him back or resist him but he really is the center point of the debate now in a way that there wasn't in the conservative legal universe when he came on the court in 1985. >> you think that that change, that contribution that he has made, will continue although he is gone? >> well, that remains to be seen. i think you'll probably, if you haven't talked about it already, what kind of politics are going to go on now about his su s
successor. but the court is finally balanced. as everybody knows, it's gone 5-4 in different directions on many of the most important issues, like the scope of the federal government, nationalized health care, the second amendment, affirmative action, religion and life. justice scalia, that seat is going to be extremely important to dictate which way the court will go in the future and whether we're going to see the rise of a new kind of constitutional interpretation, something more like the warren court, or whether we'll see a continuation of justice scalia. i think we still live in the political era of ronald reagan. think the legal version of reagan is scalia. we still have the debates in the terms scalia did. but this next election and this next replacement for this seat could replace the direction. >> former law clerk on the supreme court and a former uc berkeley professor, thank you. he has been called the most
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for almost 30 years, justice anti antinin leo scalia had insight, colorful wit and inform ed opinions. he informed a generation of judge, citizens and students. he is going to be remembered as one of the most consequential judges to ever serve on the supreme court. >> those who knew justice antonin scalia say he was a legal mind who won over the opponents with humor and charm. fox judicial analyst andrew napolitano had this to say about justice scalia earlier this e evening. >> well, i am just as shocked as everybody else, and learned about this as we all did in the
last our or so. it was one of my highlights of my life to be one of his personal confidants. we had mass together, and had meals together, and went to law school together at which i was a able to interrogate him for 90 minutes with no holds barred, and he was an intellectual leader of the school of thought of originalism which says that the constitution as the supreme court of the law of the land means the same thing today as when it was ratified in 1887, and he fiercely defended the original meanings of the phrases in the constitution gaiagainst tide of public opinion which for the most part takes the opposite view of the constitution as malleable and -- >> that is how the fox reports
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