tv Justice With Judge Jeanine FOX News February 14, 2016 1:00am-2:01am PST
right now on justice, mourning an icon of the supreme court. justice antonin scalia dead at 79. tonight, i'm joined by those who knew him as we look back at the man who left his park on the nation's highest court. >> i think things are better as far as the supreme court's jurisprudence is concerned by my likes. they're better today than what they were 26 years ago. it's all right. breaking tonight, the leading conservative voice on the nation's highest court is silenced.
hello and welcome to "justice" on a sad night. i'm judge jeanine pirro. tonight, the nation is mourning the death of antonin scalia. he was found dead, apparently of natural causes this morning in west texas during a hunting trip. he was 79 years old. reaction is pouring in tonight, and i'll be joined by colleagues and friends of justice scalia, including governor mike huckabee in just a few minutes. we'll also talk about the enormous upset that this will have on the race for president. but with me now is fox news chief legal correspondent shannon breen. >> this is a big blow to the conservative block on the court. there are many landmark cases to be decided yet to be heard, and many coming up in march and april. and the absence will be felt. his voice on and off the bench. he was a feisty questioner. he had a devilish sense of
humor, a very unique vocabulary and some very fiery and spirited dis-septembers. -- dissents. he let you know when he wasn't happy with the court's decision. cases that involved affirmative action, abortion, the president's use of exec tv action on things like immigration. the hhs contraception mandate that flows from obama care. there are so many things yet still to be decided. some of them could be locked up 4-4 when that happens. the lore court ruling will stay in place. the chief justice could move those on to the next term. we could have those cases delayed. there's so much yet to still be decided. but john roberts is known for keeping the court working. when everything else is closed in washington because of mass i snowstorms, the court is often the only thing in operation. he is very dedicated to the work of the court and to moving forward. and you have to know he's going to find a way to do that with eight justices as they all will feel an obligation now. justice scalia was known as having friendships across the
ideological sflit. close to justices goiinsberg an kagan. he is a larger than life character in so many ways. whether you agreed with him ideologically or not, you were entertained by him and you felt like we were with a friend. he was an entertaining person. >> shannon, you covered the supreme court. tell us little bit about the man. when people talk about his spicy voe lab care, his sense of humor, his ability to reach across the aisle, in spite of what some might think is a strident conservative view, this was a man who was almost bigger than life. >> dia, yeah, he loved life. he talked about his love for red whine and the occasional gar and pasta. he really lived a 100%. i think about the christmas parties over at the supreme court where there is a pianoist and there are carols to be sung.
i remember him often taking over and sort of assigning people parts and wanting to lead in character singing some of these songs. there were people he knew that he never would convince about ideological positions about the way he viewed the constitution or otherwise, but that never stopped h him from wanting to be friendly with him, to be gregarious, to have these relation very deep. i suspect that justice ginsberg who couldn't be more different from him and legal and judicial philosophy was probably his closest friend on the court, judge. >> one of his most famous quotes is the broccoli quote from the obama care case where he says, could you define the market? everybody has to buy food sooner or later. so you define the market as food. therefore, everybody in the market, you can make people buy broccoli. a man with a sense of humor who always stuck to his guns.
but but the impact of the balance in terms of the supreme court, the conservatives versus the liberals, it's a 5-4 court, shannon, as we all know. but at the same time, it's justice kennedy who is always in the balance. we lost the strong conservative member and the balance could be a lot less in terms of conservatives if the president, of course, has a chance to appoint someone. >> which tonight he says he doesn't do. we'll have osee. of course, a number of gop senators we talked to tonight say no way they're going to block it. we'll have to see how it plays out. meantime, yes, a very strong voice for the conservative block of the court. you mentioned justice kennedy appointed by a republican president but has often voted on the other side with the more liberal block in the 5-4 decisions. the chief justice john roberts has taken some heat from those who think he's not reliably conservative enough.
so you wonder who will take up the mantle. justice thomas is a quiet, thoughtful intellectual man, but not the outspoken leader that we see with justice scalia. my guess is that you may see justice samuel alito move into that role. he's also very opinionated and also very strong from the bench during arguments. and maybe he takes up more of that manhattan until the meantime. >> you're right about that. there's very little we hear publicly about juls thomas. a little more about justice alito. but i suspect there's going to be a huge battle based on what the president said this evening about the appointments of the next supreme court justice. shannon bream, thank you for joining us tonight. and joining me now, former gop presidential candidate and best selling author and governor mike huckabee. good evening, governor. >> hello, judge. great to be with you. >> you spent time with justice scalia a few years ago hunting with him and hosting him at the
governor's mansion. what was it like with him? >> well, i was a little intimidated when i first realized he accepted an invitation that i gave him to go duck hunting. and arkansas is a duck hunting magnet. he said yes. he came, and i'm going to tell you, he was the most delightful person. and he tried to insist that we call him nino. i nougt, you're a supreme court justice. i'm not about to call you anything other than mr. justice. we had a great time. everybody talked about his sense of humor, and he really is that way. it was a very relaxed time. he was the most humble and gracious and nonpretentious person i think i have been around. and i'll tell you this about him. he's a heck of a hunter. and he regaled us with great stories. most notably, judge, when he was a little boy, he would take his shotgun, get on the subway in new york and go out as far as the subway would take him so he could go hunting on saturdays.
he listened to this story about how he loved to go hunting as a kid. i thought, can you imagine somebody getting on a new york subway with a shotgun today and somebody says what are you doing with that? i'm going hunting. on the subway. but it was just the kind of -- >> governor, i don't mean to interrupt you, but along those same lines, he delivered a speech just a few years back on why he became a lawyer. and it's kind of consistent, he said i have an uncle vince. most ial yns have an unskl vince who was a lawyer. he seemed stof a good life, so i thought i would give it a shot. and it turns out it's what i love. don't do it if you don't love it. it's not the most exciting profession unless you love the process and love words. this guy was always speaking from the heart. >> well, and i loved reading dissenting opinions. i'm not even a lawyer, but when i read -- and i thought his dissent on the same-sex marriage case was one of the most
remarkable arguments, not just for the issue of traditional marriage, but really for constitutional authority and constitutional law. he was not a judicial supremacist. he did not think the courts could make law. he did not think they had the capacity to legislate, which is so rare today for someone in the legal profession. i think we lost this giant of an intellect, a brilliant man, great wit. but when it really comes down to it, what made it so remarkable is that he was a strict adherent to the rule of law and to the constitution as it was wren, not as people wished it could be written. but he's going to be missed. but i also want to remember the human side of him that i was so blesed to get to know. he stayed at the governor's mansion guest house when he came to stay at the arkansas bar association. again, very unpretentious, gregarious, a lot of fun to be around.
he was a giant of a legal scholar. >> he was known, governor, as an originalist, someone who said the constitution needed to be eyed through the eyes of the founding fathers. he would use old dictionaries to try to understand what they meant at the time of the writing of the constitution. what do you think the chances are of the next appointee being someone as strictly constructionalist as justice scalia? >> well, it would be an answer to many of our prayers. that's not going to happen with an obama nomination, which i don't think will happen. i don't think the senate would be foolish enough to confirm an obama nominee. but i'm not sure about the next republican president. i would hope that they will find
somebody who is as committed to the text of the constitution enthe original intent of the constitution that justice scalia was. it's what made him such an effective and powerful justice. and i really believe that the influence that he had on the court and on shaping opinion, and to explain not just what he believed but why. and this is why i think he was so significant. he was able to explain why his opinion was what it was. >> certainly a man who understood the rationale behind the decision. governor huckabee, thanks so much for joining us. >> thank you, judge. >> all right. and president obama spoke a few minutes ago, let's take a listen to what he said. >> good evening, everybody. for almost 30 year, justice antonin nino scalia was a larger
than life president on the bench. there was an energetic style, decisive 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. justice scalia dedicated this life to the corner stone of our democracy the rule of law. tonight, we honor his extraordinary service to our nation and remember him as one of the towering legal figures of our time. antonin scalia was born in trenton, new jersey, to an italian immigrant family. after graduating from georgetown university and harvard law school, he worked at a law firm and taught law before entering a life of public service. he rose from assistant attorney general for the office of legal
counsel to the judge on the d.c. circuit court to associate justice of the supreme court. a devout catholic, he was the proud father of nine children and grandfather to many loving grandchildren. justice scalia was both an avid hunter and an opera lover, a passion for music that he shared with his deer colleague and friend, justice ruth bader ginsberg. michelle and i were proud to welcome him into the white house including 2012 for a state dinner for prime minister david cameron. tonight, we join his fellow justices in mourning this remarkable man. obviously today is a time to remember justice scalia's legacy. i plan to tul fill 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 are bigger than any one party, they are about our democracy. they're about the institution to which justice scalia dedicated his professional life and making sure it continues to function as the beacon of justice that our founders envisioned. but at this moment, we most of all want to think about his family. and michelle and i gin the nation in sending our deepest sympathies of justice scalia's wife maureen and their loving family, a beautiful symbol of a life well lived. we thank them for sharing justice scalia of our family. bod bless them all and god bless the united states of america. >> and joining me now on the phone is republican senator jeff sessions.
good evening, senator. you heard the president. what is your reaction? >> those were nice remarks, and i think they touched on the influence on justice scalia, probably not as comprehensive as his influence has been. i think he it's been one of the most remarkable leadership efforts on the supreme court, to move the court, not completely, but much further towards a classicalhe standing on the rule of law in which a justice should operate. >> that's why he's known as an originalist, someone who stuck to the constitution and the meaning the founding fathers had. but senator, the president said he planned to fulfill his constitutional obligation to nominate a successor, and he expects the senate will have a fair hearing and a timely vote.
does that tell you there's going to be an epic battle for confirmation of the next supreme court justice? will it even happen? >> well, i think senator mccome is going to have unanimous support of the republican congress, that we're not going to move a supreme court nominee this late in the year in the session. the president has gotten two nominees through. i think the next president should be the one to fill this vacancy. you know, what does the constitution require of him? it requires that we advise and consent. my advice would be don't make this confrontation, mr. president. it's not going to work and it's going to cause difficulty with a whole lot of matters. and in the end, i don't think congress would consent to confirmation. >> what do you say -- >> the senate would not. >> but what do you say to those who say one year is too long for
the court to be without a ninth member? >> well, we've had nominee vacancies nor long periods of time. nixon had to submit three before he finally got one confirmed. so it's not at all unusual. we've had vacancies before. the court knows how to handle eight justices rather than nine. i think that the american people need to have their voice heard through the people they elect for president and for the senate as to what kind of justice they want to be -- to replace justice scalia. >> all right. so senator sessions, from the senate judiciary, thanks so much for joining us on this sad evening. >> thank you very much. >> all right. and still ahead tonight, a political panel with members from both sides of the aisle are going to join me to discuss the impact of justice antonin scalia's death on the race for president.
and next, i'm joined live by a man who worked for justice scalia and knew him personally. his thoughts on today's news of what should happen next on the supreme court. justice is back in a moment. why do some cash back cards keep throwing obstacles at you? first - they limit where you earn bonus cash back. then - those places change every few months? i think i'll pass... quicksilver from capital one puts nothing in your way. you simply earn unlimited 1.5% cash back on every purchase, everywhere. you can't dodge the question... what's in your wallet?
>> welcome back to our continues breaking news coverage on the death of chief justice antonin scalia. ed, you were a form er clerk to scant anyone scalia. what was that like? >> it was very intimidating for a young person to be dealing with this wonderful mind. often be very, very challenging. but it was wonderful to see justice scalia think through issues. just watching him, you could literally see his mind wrestlin trying to sort out. he was, of course, a wonderful writer and he was a pleasure to turn what was a very good draft and see how he could make it even better, make some phrases very memorable. clerks said we always had the toughest job of the building because we had to get it right, not just figure out which way our boss wanted to go and write it so it went that way.
but he was a wonderful justice, a wonderful person and i'm deeply grateful to have had the privilege of clerking for him. >> how did he differ from some of the other justices? >> well, in terms of jurisprudence, the basic divide is between originalist and living constitutionalist. oorjallist like justice scalia and justice thomas believe that their task is to determine the meaning of the law by its meaning. living constitutionalist basically believe when they dress it up in many ways that they can -- the constitution means whatever they want it to mean and it can change its meaning over time to suit their purposes. so that's a pretty deep divide. in terms of temperament and personality, justice scalia was very gregarious. he obviously made some real friendships across the ideological aisle and i think everyone enjoyed being around him. he would always, you know, enjoy a good laugh. he had some ups 'downs but
always just a very real pleasure to be around. a person of deep, deep faith who loved his wife and family deeply. you know, there -- it's been more than 80 years since the supreme court justice was confirmed in an election year to a vacancy. what do you think is going to happen this year? >> well, i think senate republicans have already made clear what i think is obvious, which is that the people should decide in november who ought to be filling this critical seat. there's no rush to fill this seat and it's a deeply divided court. and as you point out, there hasn't been a supreme court justice confirmed in an election year to a vacancy arising that year. indeed, back in 1968, when chief justice warren decided to step down, the justice was defeated in his bid for that seat. i think it just shows that we ought to let things play out so
that people can make this decision to the president that they elect in november. >> what do you say to people who say there's supposed to be nine members of the united states supreme court and those who long to wait. >> well, there have been many times throughout the country's history there haven't been nine justices. the constitution doesn't speak of nine. the country can survive plenty well, thank you, for a long period of time without nine justices on the court. the court his its usual means of dealing with tie in divided cases. there may be some more than now. well, there's a potential for a number when justices recuse, it can happen quite a bit. i think it's important to get it right over the long term and have people have their say in the election in november. >> should president obama nominate a replacement for justice scalia?
you're watching the most powerful name in news, fox news channel. >> will you time your retirement so a more conservative president can appoint a like-minded justice? >> i don't know. i haven't decided when to retire. >> but does it go through your mind? if i retire, i would like to see -- since you talk about the republicans appointing one type of justice and democrats the other, you would want someone who adhered to your view. >> i would not like to be replaced by someone who immediately sets about undoing what i would like to do for 25, 26 years, sure. i shouldn't have to tell you that. unless you think i'm a fool.
>> the late supreme court justice antonin scalia speaking three years ago with chris wallace about a potential replacement. justice scalia was found dead this morning while vacationing in west texas. so the question now is will he be replaced by a justice nominated by president obama or the next president of the united states. and what impact will his death have on the race for the white house? with me now to break it down, a republican strategist and democratic pollster. all right, good evening, gentlemen. very quickly, i'll start with you david, your reaction to justice scalia. >> rest in peace. let's hope today is the first day of many where we celebrate his life and pay tribute to his service to our country. >> i think those are eloquent words from david, i couldn't agree more. >> i do have another approach, judge. rather than get into these partisan fights which appears to
be brew, the president should nominate someone like senator libd see graham, a moderate republican who potentially is confirmable by the senate who would take views that would be somewhere in the middle between scalia and a left wing democrat. i think it would help the country, might even help the democratic party win swing voters in november. >> you're sitting here saying proechl should nominate a republican? >> i said yes. >> that's what i thought. >> absolutely. but jeanine, it's more than just republican. it's bringing the country together. i'm sorry, lindsey graham has been a centrist, he's been bipartisan. this is what we need. >> let's talk about justice scalia. here we have a man who is a strict constructionalist, an originalist, a strong second amendment guy. he wrote the helder decision, which allows the people in d.c., in spite of the ban, to have the right to have a gun.
this was a justice who was a strong conservative judge. president obama is not going to appoint someone like minded. what will the senate do? >> if this were a different democratic president, maybe doug's idea would be a good one. this president isn't going to do that. and as this president has every right to nominate who he wants to put on the supreme court, the republican senate has a right and an obligation to give that person a hearing and vote them down if they are not qualified to be on the supreme court. look, the democrats haven't had a problem voting down republican justices as we've seen with robert bourque. in fact, democrats haven't even had a problem not giving democrats their nominee when president johnson in 19168 nominated two people for the supreme court, and the democrat 123459 didn't give either one of them a hearing because it was an election year. >> what do you think the senate is going to do? the president has made it clear in his condolences tonight that he has a constitutional duty to
fulfill to nominate a successor. he wants a fair and timely vote. and we've got mitch mcconnell basically saying it's not going to happen. >> i think it's pretty clear what's going to happen. the president will nominate a down the line mainstream liberal democrat, the senate will, as david suggests, vote him down. if there's another choice, vote him down again. my point about linds see graham, can't we do something better? isn't that what we're about? >> talk to the president about that. >> i will. i'm trying to now. >> what is the issue right now? if we have this appointment, which is pending, is the electric rat, that's going to be voting for the elebt are the in november aware of the impact of the loss of justice scalia, and will that in effect be part of the argument of some of these candidates? >> an election that already has high stakes has a new level, though it is probably more, this has an impact on what will
happen on the supreme court than it will on the election. in that voters very much care about the cases that come out of the court. they don't go to the ballot box thinking about, i need to vote for a republican so that we get a republican justice. >> i politely disagree. normally what dafd is saying is the case, we've got a divided supreme court now in a very polarized environment. my sense is this is going to be part of the dialogue in the election and part of the reason why democrats won't stray from the democratic candidates, republicans from the republican. >> when you say divided supreme court, it' not even divided now. with the loss of justice scalia and kennedy always in the balance, and roberts going with the liberals on the obama care case, it is heavily weighted left. >> one more is all you need. >> we'll take it. i would be happy to have it if we can get it. >> will this administration,
will they argue and further split this effort, the consensus in terms of maybe even making a recess appointment? >> it would be tragic if they did. and even in the interim to that, we have a 4-4 court right now, there are a lot of major cases right now before the supreme court. it is a typical democrat for seeing this now in the state of virginia, terry mcauliffe did a supreme court justice appointment. dems love doing -- or love doing vesz appointments. >> i'm against a recess appointment. that will only further polarize divide and credibility. >> the supreme court decided the nlrb saying the president didn't have the right to make those appointments during what is called a recess. i believe there's a recess in january 3 when the president has about 17 days to the 20th to appoint a nominee. >> if he does that, we'll have a
constitutional crisis. >> we will. >> he'll have an extra person on the supreme court. >> who will hopefully be making the decision. >> will immediately be erequested and our country would be in turmoil. >> all right. and finally, in terms of the justices already on the supreme court, we don't expect anyone to retire. we've got ruth bader ginsberg, she's 82, anthony kennedy, 79. steven brier, 77. no talk by any of them of retiring. >> no, but we didn't -- weren't planning on justice scalia passing today either. >> let's hope nobody dies. >> you don't know what's going to happen in life. it's why this is all so interesting. >> and i think even more interesting than it might be given the, as you say, the high stiek staiks. david, doug, thanks so much for being with us. next, a well-known author and filmmaker is here with some personal recollections of
our breaking coverage continues tonight with more reaction to the death of supreme court justice antonin scalia at age 79. joining me now is author of "stealing america" dinesh desousa. good evening, thanks for being with us. now, you actually knew justice scalia. can you tell us when you first met him and how you came to know him? >> well, i didn't know him well. i actually met him through my pal laura ingram who i believe clerked for him. and so i spent some time with him and i remember particularly some very engaging conversations about ways in which interpreting the constitution is in some ways
analogous to interpreting the bible. and also interpreting literary texts. so he had a very elastic mind and was able to look at different ways in which we read a text, not just in terms of what the author intended, but also in terms of what the text actually says. >> given that he was an originalist and tried very hard to look at the constitution through the eyes of the founding fathers who wrote it, it seems clear that he was someone who could kind of transcend generations and a couple of centuries. the president -- go ahead. >> i believe his originalism was different than, for example, the originalism of judge bourque. judge bourq
judge bork would talk about the intention of the framers. he says the intention of the framters is sometimes opaque or contradictory. when you're reading a sonnet by shakespea shakespeare, you may not know what shakespeare intended to say, but what you do have is the sonnet itself. and by looking at the meaning of the poem, you can excavate what it actually means. >> given the fact that you are certainly someone who is quite conservative, what do you see is the impact of justice scalia's untimely death, not only on the court but on the presidential election this year. >> i must say when i got the news, i felt a sense of deep sorrow, but also a cold, a chill of fear down my smien because the supreme court has been so precariously balanced. it's been very frustrating for us as conservatives that the democrats can depend almost with certitude on their guys. the democrats' nominees on the courts act like democrats. on the republican side, it's always like gee, what is kennedy
going to do? oops, we got kennedy -- i'm sorry, we got kennedy but we lost roberts. so scalia was the intellectual leader of the conservative side of the court and he'll be deeply missed. >> and he was not only the intellectual leader own the man with a sense of humor and the man that everyone loved to be with, including ruth bader ginsberg, philosophically opposite, but as i understand it, one of his dearest friends. he was someone who would try to get the other members of the court to join him in his decisions. i don't know, do we have a un y unifier like that now? >> well, i think scalia was an intellectual giant on the court. and perhaps the most eloquent supreme court justice, going back all the way to maybe the early part of the 20th century. oliver wendell holmes, perhaps. i think history will see him as a luminous figure. on the republican side you may have to go back to justice
harlan to find a republican justice of this caliber. now you have justice thomas possibly? >> well, justice thomas, alito remains a star on the court. but i think what's going on is we're dealing with obama with a president who has shown a willingness to skirt the law, skirt the law on immigration, the defense of marriage act, the obama care. and so we need a supreme court that's going to stand up for constitutionalism at this moment in our history. >> especially a man who was a man of faith like justice scalia with the contraception mandate and the little sisters of the poor coming up. it will be very interesting to see what happens. final thoughts about this presidential election do you think they'll consider the justice's death and the impact this election will have on the supreme court?
>> i think it will signal clearly to obama that any nominee he puts forward on the left is essentially dead on arriv arrival, that they are not going to confirm that kind of a nominee. and that forces upon obama the choice of either pushing forward and going up in flames, or trying to come up with a unifying nominee that would actually help bring the country together. >> all right, thanks so much for joining us tonight. and next, dr. robert jefferies, pastor of the first baptist church in dallas joins me live. don't go away.
tonight the nation mourns the passing of supreme court justice antonin scalia, found dead apparently of natural causes this morning in west texas during a hunting trip. he was 79 years old. with me now is fox news contributor and author of the new book "not all roads leads to heaven," dr. robert jeffries, pastor of the first baptist church in dallas, texas. pastor, thanks for being with us this evening. how will the passing of justice scalia affect the evangelical vote in this presidential
election? >> judge, i think in many ways it could be a game changer with a large segment of evangelical voters, and here's why. for the last 60 years, many evangelicals had felt that there has been a rabid attempt by secularists to move this country away from its judeo christian foundation. let me cut to the chase. i believe any gop contender from this point on who is unwilling to say that he would utilize two litmus tests beyond original intent and appointing a supreme court justices that is they have to be pro life and pro religious liberty, anyone who is unwilling to do that i think will be toast will evangelical voters. after all, bernie and hillary have their litmus test. we better make sure we have ours. >> well, let's assume that they do pass your litmus test or the
litmus test you describe the evangelicals want. what do you think is going to happen? president obama is going to do everything he can. harry reid put out a statement now saying that the president has to send a nominee right away, we can't go a year without fulfilling this and the senate's most essential constitutional responsibilities. so what is your reaction to the president and harry reid's statement? >> look. i think the reason trump and cruz are both resonating with so many gop voters is because they're perceived as outsiders and there's total disgust with the republican establishment. mitch mcconnell i think better make sure he carries out his pledge not to allow obama to make this appointment. if he does allow the president to do that, i believe there is going to be a continued throw the bums out and i'm talking about republican establishment bums. >> well, mitch mcconnell has indicated that there's not going
to be any confirmation. but given that that's the case, how do we get the electorate, general -- that's generally not involved in the issue of a supreme court justice appointment, to focus on that? >> well, i think the way we do it is we make these nominees go on the record. i don't think people are going to be satisfied with hearing, well, we don't use litmus tests, or i don't want to signal ahead of time what i'm going to do. i don't think a lot of people are going to settle for that. we want them on the record right now before we make up our might be whom we're going to get
standby. the silence amid the storm. a crucial republican presidential debate begins just hours after the leading conservative on the u.s. supreme court ties. >> we need to put people on the bench who understand that the constitution is not a living and breathing document, but it is to be interpreted as originally meant. >> who on the stage has the background, the principle and the character and the judgment and the strength of resolve to nominate and confirm princelepled constitutionalists to the court? >> the death of antonin scalia underscoring the enormous s