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tv   Bob Massi Is the Property Man  FOX News  February 14, 2016 12:00pm-12:31pm PST

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anchored by my colleague, bret baier. that's it for today. happy valentine's day especially to lore rain and have a great week and we'll see you next "fox news sunday." remembering a legal icon. welcome to this special look back at the long and distinguis career of supreme court justice antonin scalia who passed away yesterday while on vacation in texas. i'm shannon bream in washington. he had been an anchor for conservative wing for nearly three decades. his sudden death raises questions in the midst of the supreme court term packed with hot button issues -- abortion, affirmative action, and the president's use of executive power. through every decision scalia remained true to his judicial fill philosophy. >> originalism says that when you consult the text, you give
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it the meaning it had when adopted not some later modern meaning. >> he was known for his unexpected friendships with his ideological counterparts on the court. scalia and justice ruth bader ginsberg and their spouses enjoyed meals and traveling together n. recent years he formed oochs a bomb with the newest justice, elena kagan taking her to the shooting range and on an actual hunting trip. scalia was unapologetic about his faith and beliefs m. 2013 he chided a reporter who expressed shock scalia actually believed in heaven and hell and god and the devil. here is what he said at the 2009 catholic prayer breakfast. >> one can be sophisticated and believe in god. hec heck. >> first mover is easy to believe in as a big bang triggered by nothing. one can even believe in a personal god, a benevolent being who loves mankind. >> and, of course, there were
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those fiery dissents filled with flowery language and pointed jabs. that was true of his dissent from last year's opinion legalizing gay marriage. scalia found zero constitutional grounds to do so and wrote this. quote, the world is not expect logic in poetry or inspirational pop philosophy. it demands them in the law. the stuff contained in today's opinion has to diminish this represeutation for clear thinki and sober analysis. in recent years justice scalia wrote a landmark decision and maintained a busy lecture and travel schedule. he is survived by his wife, maureen, as well as their nine children and more than 20 grandchildren. the passing of the legal giant leaves not only a big hole in the court, it's setting off a political battle over who gets to name his successor. hi, doug. >> reporter: hi, shannon. the sudden death of justice scalia ensures that the already deep divide between this white house and the gop controlled
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congress will further deepen so vast is the situation with his staff, so consequential is the vacancy. president obama last night indicated he will nominate a successor to scalia in due time. here he is. >> 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. >> reporter: senate majority leader mitch mcconnell threw a very big wrench into the president's plan and the condolence statement issued right after scalia's death. he added this, and i quote, this vacancy should not be filled until we have a new president. many gop senators including the two who are running for president are onboard with mcconnell's plan. here's marco rubio. >> i think we should wait until after november before we move forward on confirming any justice to the supreme court. the president can nominate whoever he wants. the senate is not going to act. we can be debating it but we're not moving forward on it period. >> reporter: senator ted cruz
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went even further, if an obama nomination were to be taken up by the senate it would most certainly be filibustered probably by him. >> does that mean you're going to filibuster anyone -- anyone president obama nominates? >> absolutely. this should be a decision for the people, george. we have an election -- >> reporter: senate democrats are responding with derision. a series of tweets issued today in which it was noted the constitution requires the president to send these nominees up to the senate for their advice and consent. and then she sarcastically added this, quote, i can't find a clause in the constitution that says except when there's a year left in the term of a democrat president. and senate minority leader harry reid called the tactic a shame fp abdication of one of the most important constitution obligations. shannon, back to you. >> doug mckelway, thank you, doug.
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the last president to put up a nominee was lyndon johnson in 1968, but both of his nominees were rejected. joining us now gop member lindsey graham sits on the judiciary committee which is a key in this nominating process. senator, thanks for joining us. >> thanks for having me. >> how do you respond to your colleague elizabeth warner, the democrat in the senate, to her statement that basically if you think this is about letting the american people have a voice, she says, in fact, they did that when president obama won in 2012 and it's up to him to pick the next justice. >> i can't think anybody i respect less on an issue like this than elizabeth warren. she's the one that led the change of the rules. i voted for sotomayor and kagan not because i would have chosen them but because i thought they were qualified. elections have consequences and they do. let me just say this as having been somebody open-minded for voting for people on the other side because i think advice and
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consent is not set aside for election, but to vote for somebody who is qualified. i thought sotomayor and kagan were qualified. i told the democrats when you change the rules to require a majority rule to get appellate judges and appointments through the senate, you're avoiding consensus, which is the tradition of the senate. elizabeth warren led that charge. they changed the rules to help president obama stack the court and put people in the executive branch that could not have gotten a consensus vote. i will not vote for anyone unless there's an overwhelming consensus. i think there is a consequence to abusing power. i think president obama's abuse of executive power, i think elizabeth warren is an ideological hack as far as i'm concerned when it comes to this process. >> those are tough words for a fellow senate colleague. >> it is. i have no respect for her. >> okay. >> none at all when it comes to
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something like this. none at all. she's turned the senate upside-down. she his the ends justify the means. >> all right -- >> she is a complete hack. >> i will not look for the two of you to be taking a road trip or getting together anytime soon. but on to the next step in the process, the president said last night he is going to nominate someone and expects the senate to move ahead and kconfirm them. some of your gop colleagues have said, one of them used the "f" word, filibuster, whoever it is doesn't care if it's somebody he likes or not. he's state that go up front. others will say they'll do what they can to block any progress on this. where do we go from here? >> i have little respect for senator cruz. i don't think he has much understanding of the senate. i don't think he cares about the traditions of the place. he filibusters everything. it's all about senator cruz. in my view elizabeth warren and
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senator cruz do not represent the finest traditions of the senate. so senator cruz has been an i o ideolog ideologue, he hurt the republican party which made absolutely no sense. so i'm not going to listen to cruz when it comes to doing business in the senate. here is where we go. the democrats set in motion rules changes that have consequences. i told the president to his face and my colleagues i do respect that if you do this there will be consequences. he can nominate anyone he would like, and the only person that could get confirmed in my view is a consensus choice, someone like an orrin hatch, not a young liberal who may otherwise be qualified. we're not going to do that. there's a consequence to what the democrats did and what president obama did. >> all right. senator lindsey graham, republican and member of the judiciary committee in the
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senate, thanks for checking in with us today. >> thank you. all right. up next a clerk for justice scalia, has argued dozens of cases before the court and also as an attorney he joins us now to discuss the legacy that justice scalia leaves behind. thank you for coming in today. >> my pleasure. i wish it was under different circumstances. justice scalia deserves to have his legacy talked about. i'm happy to be here to do that. >> it is a unique one. he was a strong personality both on and off the bench. what kind of difference do you see -- what kind of impact on the legal profession and on the courts in this country over the last quarter century? >> his impact has been so substantial and i think there's at least three ways he's had a huge impact, one is interpretation. we hear a lot about the constitutional cases. 75% of the supreme court's cases, as you know, are statutory cases. when he came to the court in 1986, often the text of the
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statute was put in the footnotes and the justices were debating the policies that under lay what congress was trying to do. and he really single-handedly can change that focus and got every member of the court to really start with the sex text the statute, to never look at the legislative history but the text has primacy in statutory because of him. he's had a similar transformative effect on constitutional interpretation where it's the text of the constitution informed by its original public meaning that drives the debate, and you really see this in a case like heller, the second amendment case, where all nine justices debated that kiss on hcase on h. the original meaning of the case was, but the whole debate took place essentially on justice scalia's terms. and then the third thing he did,
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and this is something that's impacted me over the last ten years, is fundamentally change the way the supreme court approaches oral argument. when he came to the supreme court it was not uncommon for an entire oral argument in the supreme court to go by without a single question. now you're up there watching oral argument -- >> that's so hard to imagine. >> you see the court today and the court is asking literally dozens and dozens of questions. it's now not uncommon for the advocates to collectively get more than 100 questions. and that really started with justice scalia. it started on day one, too. he got there from the d.c. circuit and he started asking questions. he didn't stop. some of his colleagues who had been will already a number of years and hadn't asked a lot of questions said we're not going to let the new guy have all the fun, and they started coming along and doing the same thing and now i think every justice that's gotten to the court has essentially asked more questions than the justice they replaced
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and has adopted kind of the scalia model to oral argument. obviously justice thomas is the one exception but the other justices all asked lots and lots of questions in the scalia model. >> it's been roughly a decade since justice thomas has asked a question. he is the exception to the rule. it is an animated or hot bench where they are pushing back and forth, some arguing with each other through their questions to be advocates, but it is rare that somebody gets through, as you said, i have three points and here are my arguments. you might get through one but to get through two or three, they're very animated. that is his legacy. how much of a hole do you think this leaves in what people call the conservative block on the court? >> there are still justices on the court that share his philosophy and you start with justice thomas but obviously there are other members of the court that share justice scalia's fill philosophy. i think what we'll be missing is that kind of indomitable personal presence that m
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manifested itself most obviously during the arguments with its questioning and he asked more questions than any of the other, i think any other justice but certainly any other justice you think of as a conservative justice. and then you're also going to see that missing in the opinion writing because there's nobody who writes an opinion like justice scalia. >> and learn new words from his opinions and dissents all the time. have to look them up. is that a real word? >> once in a while he makes them up, but only when he's characterizing the majority opinion, particularly in an acute way. i really think that's another key to understanding his approach to the job. people will criticize and say he wasn't quite as effective as some other justices in building coalitions. i don't think that's what he was there for. he took the long view on the law and he was really writing -- if he was writing a dissent, if he couldn't cobble together four other justices to agree with him, he was writing for justices 20 years later, 30 years later.
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and i'm quite confident that law students will be reading scalia opinions a decade from now. >> and he clearly loved what he was doing and his certificaserve country. paul clement, thousand for coming in to share. >> my pleasure, my pleasure. as we've been telling you the path to a new supreme court justice goes, of course, through the senate. we'll talk to another one of its members, senator orrin hatch next. at ally bank, no branches equals great rates. it's a fact. kind of like vacations equal getting carried away. more proactive selling. what do you think michal? i agree. let's get out there. let's meet these people. whei just put in the namey, of my parents and my grandparents. and as soon as i did that, literally it was like you're getting 7, 9, 10, 15 leaves that are just popping up all over the place. yeah, it was amazing. just with a little bit of information, you can take leaps and bounds. it's an awesome experience.
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the talent to be. his son ended up on the supreme court. my grandmother expected me to be president. >> often sometimes justices are even more powerful and they stick around a whole lot longer. those are moving words from justice scalia from just over two years ago talking about his family which included his sicilian born father. joining me now senator orrin hatch. senator, thank you so much for joining us. i want to first get your reaction and thoughts on the man justice scalia was. >> he was a great man. i have to say still is in my eyes. i just wish his wife and family the very best. i know it's a tough time for them especially the way -- he died the way he wanted to. he was out hunting, relaxed, and the next thing you know he was gone. he was one of the greatest justices on the supreme court, a man of wit, good character, decent person, the first
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italian-american person on the supreme court which set standards. i just personally loved the guy. >> glowing words from his colleagues. we'll talk more about that in this hour. justice ruth bader ginsberg who couldn't have been more different from him ideologically called him her best buddy today. he was a gregarious guy who reached across the issues to form very interesting friendships. >> he really did. virtually everybody respected him. he was one of the great lawyers and teachers of the law at the university of chicago, i believe it was. he was on the court for an awful long time. everything he did was very, very professional. and humorous, very, very intelligently written opinions. just a fellow who basically stood up for the constitutional systems of this country and really one of the founders of originalism and i have to say a
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person who stood for the constitution, believed in the constitution, and basically wrote about the constitution continuously. >> so i talked earlier with your colleague, senator lindsey graham, about where we're going now because the president has said he is going to nominate someone. some of your colleagues have said no way that's going to happen on their watch. a number of democrats stepped forward to say of course it is. this president has almost a year left. he should be able to nominate someone he sees fit. what is your plan? >> well, it's been more than 80 years, i think about that time, since somebody was nominated in the president's last year. it just isn't something that's done and the reason it isn't, we were right in the middle of a presidential campaign and somebody is going to win that and the person who wins that is going to have the right to replace justice scalia whether a democrat or republican. and i think it's pushing it to
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try to believe that they should be doing that this year. >> what about the possibility, quickly, we're almost out of time, of a recess appointment by president obama? >> well, that would be very hard to do. we're talking about, first of all, i don't think the senate will go in recess just for that reason. after the 4th of january, time where he could do that. that would be one of the most offensive things anybody could do and i don't think even president obama would do that. but if that's the way it is, i think that the senate will find a way of being in recess and will probably just go right to work after the first of the year. it isn't something that would be done, should be done, it would be absolutely offensive to any good thinking person. but, you know, look, democrats would like to be able to take control of the court and have justices that would uphold all of these abortion rights right up to the time of birth and all kinds of other very liberal
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approaches. i mean, that's what they believe. you can hardly blame them. >> senator hatch, we have to leave it there. we're up against a hard break. thank you so much for joining us. more after this. house back on h. and give her the strength and energy to stay healthy. who's with me?! yay! the complete balanced nutrition of great tasting ensure. with 9 grams of protein and 26 vitamins and minerals. ensure. take life in!
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during his decades on the court scalia was known for his intellect, zeal and outside personality. the executive editor of "the weekly standard" profiled justice scalia and has his personal insights. you were telling me during the break you were around during the confirmation process as well. >> i came to washington in 1983 to work in the justice department. i was a speechwriter for reagan's first attorney general. i stayed on under ed mees. and ed had a group of us organized, about 20 in all, and
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we looked at prospects for people who would be candidates for the supreme court in case a vacancy arose. and our group of 20 read a lot of things, a lot of articles, judicial decisions and came up with two people at the end of the day bourque and antonin scalia. in no particular order. ed took those to the president, and he selected scalia that year and bork the next year. >> you can only know how someone will be as a justice and how some come untethered from their moorings. how did you know or did you know and feel you were assured antonin scalia was going to stay the way that you expected he would be as justice? >> the review process we had in place, i thought, did a good job of that. we were centrally focused on judicial philosophy and wanted to know how it might work out in
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practice. those two are exemplars that reagan was seeking. >> i know we talked about the fact that justice rehnquist's elevation to chief justice was going on at the same time. that was more controversial. do you think someone like antonin scalia could get a unanimous confirmation in 2016? >> maybe not. it's been said being the first italian-american on the court put him there but i think he was praised at the time, recognized at the time as a legal scholar of great intellect and dimension. i think he would stand a good chance. >> having been in washington now and watched these fights play out, how do you sort of game out the one we're looking at? >> this is entirely different. this being an election year where the court is now central
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to how our government is day-to-day, i think this changes the political dynamic. whether it will actually lead to someone being on the court, being confirmed for the court this year, i have my doubts, but i do think that it will get into the campaign, it will be a major issue, it perhaps might help certain republican candidates more than others on the democratic side. i don't think there's any doubt democrats will be unified on this issue. >> and it makes a big difference if this is pushed past the election about which type of person would be nominated based on who becomes the next president. this president seems determined in his backer of supporters says he has every constitutional right to make this nomination. the senate doesn't have to go along with it. do you think this gets ugly before it's resolved? >> it might. if you're the president of the united states, how could you not take this opportunity to nominate someone? he has that possibility, and he should do it. it's a right. that's true. whereas the senate, i don't think, has any obligation to vote even or to hold hearings.
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it can do as it wishes to do. we may not like that but it's not a constitutional issue of saying there's some duty the senate is obligated by. >> we will watch in the coming days. in the meantime we thank you for sharing your memories of the man that the nation is now mourning. good to see you. >> thank you, shannon. as the nation mourns the passing of justice scalia, our special continues a. look at some of his more colorful opinions and dissents. plus, those who knew him talk about the man behind the robe.
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