ring on the sugar. it will be a year regardless. dagen: they can't wait until the south carolina primary because that was the reality show without many leagues. maria: thanks everybody for being here. dagen mcdowell, michael block, kevin kelley. that's it for today. >> how about this to some of the supreme court battle. the democrats, risk, republicans. how about that. good morning, everyone. they will nominate a successor to just tiscali. that would tilt the supreme court last. if the republicans accept the nominee, they risk that tilt. if they oppose, they risk the obstructionist label just as we go into presidential election time. democrats opportunity, republican risk or her way, the passing of justice scalia says that an intense and likely political battle. it rivals the election is held.

i want to get your money. what we are setting up today as a stock market win. the indicators suggested opens tomorrow big. that will be tomorrow. if you want to watch a 3-year-old -- i am told there is another channel for your viewing. but there is a lot going on now. it is happening now and we are very happy to be here live to cover it. welcome to the live show. "varney & company." we are about to begin. it is not stuart: prime minister dmitry medvedev likens relations with the west to a new cold war. he says it is a cold war at the west doesn't cooperate with russia in the area and elsewhere. it is a cold war. more on this with ralph peters in about 10 minutes from now. to the election quickly.

it was a mile up are all among the candidates for the republican debate dr. dave of carolina. donald trump booed at the making of a comment about george w. bush and 9/11. roll the tape. >> i am sick and tired of them going after my family. my dad is the greatest man alive in my mind. [cheers and applause] while donald trump was building a reality tv show, my brother was in a security apparatus to keep us safe and i am proud of what he did. he's had the gall -- the amount world trade center came down during all of that. stuart: okay comment it went downhill from there. or uphill depending on your point of view. the news that justice scalia's passing arrived just before that debate and the debate was front and center in that -- the passing of justice khalil was front and center. mary kessel is with us from "the wall street journal."

opportunity for democrats, risk for the republicans. they can now re-tilt the balance on the supreme court. would you say? >> sanitized consent and i just don't see the gop allowing the president to get through before an election year. they are right to see the american people need a vote. the political left of them like it. they pretend the senate is another role at all. elections matter and the gop controls the senate. that is a problem for the white house to your stuart: roll tape from ted i believe this is from the debate talking about a replacement for justice scalia. >> does that mean you are going to filibuster anyone that president obama nominates? >> absolutely. this should be a decision for the people, george. we have an election. and democrats -- i cannot wait to see wait to stand on that

stage with hillary clinton or bernie sanders and take the case to the people, what vision of the supreme court do you want? but the election decided. stuart: advise and consent, okay. if they say no for the next year, just about a year, they look like obstructions. >> what you just saw was classic ted cruz. he doesn't need to filibuster. they can have a vote in the republican together, which i think they will, they wouldn't approve the president's nominee. the problem for ted cruz is that he hasn't had a lot of leadership it. period prayer to the public is going to stand up and do something. for him, doing something is doing nothing, preventing the process from moving forward here and will probably appeal to his base. i don't think it expands his base. and that is cruz's challenge. stuart: republicans have a real problem. no, no, no, for year their obstructionist.

>> they have to explain to the american public why. they have to educate people. jo: you are looking not union, health care and four in four of those you end up with a tie. the lower court decision. stuart: several names are being thrown around. first and always got the federal judge diane would chief janet napolitano, u.s. court of appeals, merrick garland california allow the ha'aretz. wait a minute. then we've got three more appeals court judges. now, judge andrew napolitano is on the phone with us. thanks for joining us. >> nice to hear your voice, stuart. stuart: i don't know if you know these names, but they are all on the left, although burroughs. the mac i do know one of the names because it's the same last name i have inches my cousin and we rarely agree on anything.

of course this people are on the left. from president obama's point of view, this is an opportunity for him to cement in place legacy to turn the direction of a cord around from where it has been on a relatively stable conservative majority though occasionally justice canady making a liberal majority. i wouldn't than president obama for a 10 team to take advantage of the opportunity. stuart: let me jump in for a second. i would expect him to nominate him in on the left. not a middle road or who might be acceptable, but a leftist. the president has nothing to lose. >> i don't think the president things the way you do. he may well be more interested in a compromise candidate. for example, if you were to nominate someone that was sufficient to pry loose a dozen

or so republican votes in the senate, then he could get the person through. if he really wanted to play hardball, the senate is in recess today. if he nominated someone today, there are no confirmation hearings. the person would begin to save as soon as the person took the oath they would set her for years. it would not be a lifetime term. this has happened in the past. and they were eventually nominated. stuart: that would be hardball indeed. >> s. coming as they would be hardball. stuart: judge, which expect a minority or woman to be the most likely nominee? >> i would x that justice scalia's opposite number. i do know in terms of race or gender, but certainly opposite in terms of ideology and obviously a lot younger than he was. justice scalia was not a compromise there, not a molder

of consent is. he stood his ground. as the champion of originalist and come in the original intent of the framers of the cons to shame. there are many, many fine academic appeals court judges and law professors out there that would appeal to the president he would be very much the opposite of that. we should not suppose that the supreme court is going to rule four to four. this court has ruled many, many times x to three and in this case six to two. and many times that unanimity. john roberts, the chief justice is utterly brilliant to crafting compromises that drop more than five members of the court. stuart: that is right, judge. he did indeed give us obamacare. i hope we can get you back later in the show. if not, we'll certainly see you. >> i'm available whenever you want me. i'm surprised america's newest american descendents working on presidents' day. stuart: would like to go live on this network because we've got

news. that is a fact. thank you very much. appreciate it. let's go to the market action for you. right now looks like we are set to open higher tomorrow. we are up 300 points friday. another nice rally probably. publicly coming tomorrow. by the way, we have the price of oil up today. that is an actively traded market were 2970. we touched 30 earlier. that is up from 26 bucks last week. look at gold. that's another indicator we are down today. talks up, oil up, pulled down $27. i've got to tell you this. stop shaking your head. jo: you called me out. i'm so excited about gasoline. this is good pricing. stuart: i want to hear you cheer on this. back to the cruz in rock

springs, oklahoma. that is the cheapest station in america. the average is $1.37. jo: i am in. let's go. stuart: fire at the winnebago. look who is here the day after valentine's day. art laffer, former economic adviser to ronald reagan. the news this morning on the economy is japan's economy is shrinking and shrinking big time. my question to you is are we too in america going to shrink recession? are we in for that? >> connectors that comment about your newfound citizenship. have you such cause a stay from president stay from presidents' day tonight and call it george washington's birthday?

what is going to happen we don't change policies very, very soon. stuart: are we in or a recession? the mac if you look at the stock market, it is forecasting seven out of the last four recessions. you never have a downturn without a good market downturn first. frankly i think we have a real risk here in the u.s. are going even further down.ase. we never had a recovery. stuart: that is going to be thee holiday.

if we could get a in this country, what else matters? stuart: one last question. what would a liberal tilt on the supreme court, if that happened, and a liberal tilt that they would have a 5-for majority. what would that mean for economy andshall listen and make it a progrowth economic research and in kentucky of all places. it's a very exciting time. i don't think the supreme court topic, but they can sure slow it down. stuart: on presidents' day, george washington's birthday monday morning. >> we got it from him. you're a good man.

>> thank you very much. stuart: snow, sleet, rain. they are going to hit the mid-atlantic and northeast. did you see it coming? here it comes. most of the country doesn't care of course. that's pretty bad news. this is happening to us. the whole northeastern region emerge as for the weekend of the winter. arctic temperatures, berger when shells, most people stayed in my period just to show you the pictures roseanne. but we are looking at now is this video showing this no-caps skating down from the top of the half dome. skies are blue in california. an admission from the head of the cia said and its operativeoperative s in place in america and the attacks are inevitable. more on that in a moment.

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stuart: russia's prime minister, dmitri.gov, warning we are all headed towards a new cold war if the west does not cooperate with russia and syria and elsewhere. coming in, rob peters. we have are at a loss to the russians in the middle east. they are beating us just about everywhere. the cold war has begun and they are winning. >> they are certainly determined to keep it. on a diplomatic front, stuart, and moscow's goals, prudence goals are to divide the u.s.a. from your divide europe internally and break up the anti-sub six allies in the middle east. dividing europe is successful. breaking up our alliance in the middle east was never much to begin with. now you've got the turkish allies shelling our kurdish

allies in meanwhile on the military's died, putin is it. nothing magical about it. it is by the book, tech book offensive than his marching relentless way towards a try and militarily in the area while we can make up our minds was going on. stuart: how about thisfrom the cia director john brennan telling 60 minutes future isis attacks here in america are inevitable. just watch this for a second. >> you were expecting an attack in the united states. >> i'm taking them to try to put in place operatives, material, whatever else they need to do more to incite people to carry out these attacks clearly. so i believe their attempts are inevitable. i don't think their successes necessarily are. stuart: okay, attempts are inevitable. are you confident we are doing enough to stop this? >> in the united states we are doing everything we legally can.

there is a severe problem with modern encrypted communications commercially available that we can break. but trying to do two things at those remarks are one, warn us that there would be more attacks that they are indeed inevitable, whether large or small we don't know. the other thing as saying he wants a position to say i warn you. this wasn't an intelligence failure. in his entire interview to which i listened, what really caught me and we've heard it before was before the latest terrorist attacks, the red sirens and flags were everywhere. we knew something was coming, but we didn't know what because of the encryption problems. the comprehensive problem is strictly biz. we still don't take it on mix tapes branding series enough. stuart, islamic state has the most successful global brand since facebook and they are also and await the ultimate dating map for young muslim males to link them up with 72 version,

sort of a match.com for one of the murders. i am not being afflicted. the power of the internet has both applied and globalized the effects of the deadly terror organization. stuart: ralph, thank you for joining us. the passing a supreme court justice scalia creating a power struggle in washington. dr. ben carson says democrats are right to diminish the legacy. dr. kirsten will join us in just one moment. ♪jake reese, "day to feel alive"♪ ♪jake reese, "day to feel alive"♪

♪jake reese, "day to feel alive"♪ donald trump: "pedonald trump..." look past the boasting and you'll see right through him. he supported partial-birth abortions. his phony trump university? accused of fraud. he tried to seize private property to line his own pockets. four bankruptcies... and small businesses screwed over. poll after poll shows him losing... to hillary clinton. if trump wins, conservatives lose. right to rise usa is responsible for the content of this message. e*trade is all about seizing opportunity. and i'd like to... cut. so i'm gonna take this opportunity to direct. thank you, we'll call you. evening, film noir, smoke, atmosphere... bob... you're a young farmhand and e*trade is your cow. milk it.

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see car insurance in a whole new light. liberty mutual insurance. stuart: this is presidents' day. why not bring in republican presidential candidate ben carson to talk about the passing on the other side of the screen. welcome to the program. good to have you with us. >> thank you. republicans in the senate they wait until there is a new president before we get a new supreme court just is. would you say to that? >> well, i understand why they say that. the supreme court has turned to something very different than it was originally in vision. it was supposed to be composed about ending americans who wanted to preserve america based on our constitution. what this has turned into as a lot of people who are ideologues, who had their ideals of what things should read and

want to create law rather than interpret law based on a constitution. that being the case, it is perfectly reasonable for the republicans to say, we know what kind of individual we have as president. we know what kind of people he will appoint a somebody's done before. why would you come in all, but that upon yourself and those coming after us and future generations? why not let the people decide? the people will decide in november what direction they want the country to go when. if they pick a democrat, they will give the kind of person that the president would've paid. if they pick a republican, it means they want to go in a different direction. stuart: it is the president's job to nominate a president for justice scalia. that is his constitutional duty, so he is going to do it. if republicans want a nominee for the rest of the year, they

will look like obstructionist, won't they? they will lose politically. >> i don't think so. i think many people in america know exactly what is at stake here and they have seen what it had greenport, the kind of ruins coming out of the supreme court. they know how that is affecting their freedoms and they don't want more of it. i think it is time for republicans to put a stake in the run. if that causes us to loosen up people say say that's not what we want, and people look get what they deserve. stuart: dr. ben carson in an unprincipled. we appreciate that. >> thank you, sir. stuart: this is the conditioning people. this is the company telling those employees they are going to lose their jobs. they are going to mexico. wait until you see the full video. maybe then you'll understand why donald trump is popular.

stuart: the markets are closed. we look at that? shaping up to be a pretty big and maybe positive week when wall street opens up again mara. features about to close up 180 odd points. an interesting positive point for the rest of the week.

how about oil? that is an active market today. we are up close to $30 a barrel. remember 25.26 last week. gold, another indicator down today losing out to the dollar per ounce. that is set up for the market for the rest of this week. and i have a carrier corp., the air conditioner people by united technologies. they told employees that the jobs they have are moving to mexico. watch the tape. >> the best way to stay competitive and protect the business for long-term is to move production from facilities in indianapolis to monterey, mexico. stuart: you could say that as a negative reaction. the backlash is artist target to listen to this. a member of the united steelworkers union. roll that tape.

>> the companies are destroying the jobs and robert employees at their jobs. they are taking this work to mexico because the 10 workers are paid $6 an hour with no benefits. it is just destroying our country. stuart: obviously, donald trump would not be happy about that. here is what he had to say about it. >> i would go right now and say i am going to work awfully hard to make air-conditioned now in mexico. you'll get all of these 1400 people laid off. they were laid off, crying. i will tell them right now i will get from congress to tax you when they come, so stay where you are a built in the united states. stuart: he jumped on it real fast. james freeman is that "the wall street journal" editorial board. welcome to the program. teams to meet a carrier did something that just opens a pandora's box. jobs to mexico, cheap labor down

there. trump obviously jumped on it and is getting popularity because of it. >> he's going to take a tough situation and make it worse. what he is talking about putting big tax on products from mexico. he is a sickly thing he wants to rip up her international trade agreements. carriers owned by united technologies fell all around the world. it's hard to find an airplane that doesn't have something made by them in it. last month the new engine went into the new airbus made overt ears. you are going to kill a lot of jobs at.com made, and many more than this if you start saying we are not trading with the world anymore. the company has the largest elevator and escalator in india. are we now going to fight with countries in asia as well? stuart: i take your point, but you would agree there is a populist move at the moment against the trade agreements we've seen the last one he, 30 years.

there is a backlash developing. it's not going to be pretty. >> it's not pretty but it's based on a misunderstanding that the trade agreements make us richer. the problem is not the company. there's a reason the company reported less revenue at the last year than the one before. this is a bad economy and it's got a heavy tax and regulatory word and. stuart: those people being told you are losing your jobs. they are going to mexico. for trump and bernie sanders and hillary clinton. >> people have to think about what do they want? do they want to pay more or do they want us to not sell? stuart: that will come right back and say we want those jobs to stay in america regardless of what trump would do to tax products, we want those jobs here.

>> how do you keep high-paying jobs here for close our borders and the rest of the world is not high in airplanes or elevators from united technologies, software, drugs, everything we make here. we will not sell overseas and we will continue to be successful, prost or is. the economy is struggling, but it's not because we are trading. we have a government that is too big and too expensive and oppressive. stuart: i am just trying to point out that the free trade wave has crested and maybe the tide is going out. that's all i'm suggesting. maybe that's the wrong answer. that's what is happening. >> i hope that is not happening because many jobs will be lost as we go down that path. i would hope republicans will engage more as they fight with donald trump in this debate. james freeman "wall street journal" editorial. we appreciate you being here. stain on the economy, local

anxiety. japan news this morning really in recession. and then we have this thing about negative interest rates. loan money to a government and they don't give it all back. here's a professor of economics at the university of massachusetts in amherst. forgive me for saying this, but when i hear economics of western roots, i think socialism. are you a socialist by any chance? >> as a matter of fact i am a democratic socialist. i believe we should extend regulation that we have in our school district and said not to business. >> or mappers are active, i wonder if you can discuss the negative interest rate phenomenon where i loaned money to government and i don't -- they don't give it all back to me. that would be a dire situation around the world. am i reading this correctly?

>> you are reading it absolutely correctly. it is very interesting as recently as a year ago on just take it as an assumption that you can't have a negative interest rate. why would anybody put money in the bank at the bank is not going to give it all back to you. but in fact ,-com,-com ma people do value services that they provide and they are going to act a lot in their capital to keep their money in the bank. stuart: it is a problem, isn't it? >> absolutely. it is a slow down as the previous week are mentioned. we have been having for seven years now, we have been in what economists call the great recession since 2007, may 2007 and we have a commodity. the united states are doing better than most of the rest of the world. it looks now that this long-term drive that has been going on is

spreading and we may actually be heading into another great recession after the first great recession ended. stuart: that is a negative message for capitalist like myself is socialist like yourself can try to discuss. we've got 30 seconds left. what would you do about the carrier corporation transferring 1200 jobs from america to mexico. why would a socialist do? >> i am okay to agree with anybody from "the wall street journal." on free trade we are largely in agreement. i would provide those workers with extended unemployment insurance which we have through the trade adjustment assistance program. job retraining. the biggest burden american workers facing competition with foreign workers is the burden of health insurance which can be 15, 20, 25% added on top of regular payroll.

if we had a national health care system as every other country does, that would be an enormous boon to business and would bring some jobs back. stuart: okay professor, sorry to cut you off. i don't mean to disagree with you but time constraints are upon me. very interesting discussion. socialists from amherst, massachusetts. we will have you both back. they'll be good or professor, thank you indeed. appreciate it. i'm going to stand politics. whenever go far from politics on this program, do we? democratic strategist jessica ehrlich. i want to talk about the school yet vacancy on the supreme court is a huge opportune to date you folks on the left would agree with you, wouldn't you? >> i don't know if it's an opportunity so much. that would present him -- stuart: -- the supreme court. if you had a five to four liberal majority, you would be

very happy, wouldn't you? >> could help alan support in terms of the justices they are. that would be presuming you have people who are activist judges to begin with. what is interesting also is to say we need to put someone on now. there's several just says who are going to be closer and also in poor health in elderly who the next president will nominate as well if you are sending the next resident is going to be republican, i suppose that is put on a more liberal justice now, having more conservative justice later to balance the quarterback out. or you can have a chance where we have multiple more liberal justices depending if the democrats are elected. stuart: that is very true. would you favor a recess appointment right now? >> you would. that would create quite a battle, wouldn't it? >> a word. part of the privilege of being

president is to make an appointment. certainly this is not something that the foreseeable act. it is not some thing that is somehow a kobold that would cause this to happen. it's part of the responsibility and duty of someone the president of the united dave. a two-term republican will be supported them putting in a recess nomination as well. true to ensure you're not happy at the passing of justice scalia, obviously not. i would never imply that. but you are pretty happy at the opportunity that is presented to you in political terms in the coming year. can we leave it at that? >> what is interesting is that we have seen between the friendship injustice goliad and justice ginsburg and the berlin of justice roberts is what people forget that the supreme court is made up of jurists. they are not politicians. their job -- they are absolutely not.

as an attorney, i feel this as well. we have a duty to uphold the laws. it is how you interpret them that is a much more almost collegial sense of intellectual disagreement as to what the basis is. the law is the law and the law of the land and that is why they have the supreme court to balance their government between judiciary and federal and executive. having someone there is very important. stuart: okay, got it. thank you are coming on the show. very important day. coming up, apple seemingly taking cue from netflix reports coming out that apple is making his first scripted tv show. more on that. pope francis heading to the u.s. border with mexico. donald trump on this program called the pope a political person who does not understand the dangers of an open border. watch this. you

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stuart: how about this? the streaming battle, streaming wars. apple getting some inspiration from netflix maybe. there are reports it's making its first scripted tv series. what's this all about, jo? >> well, dr. dre, as you remember, apple bought beats a few years ago, now they're going to make an original tv series about dr. dray. it's -- dr. dre. it's supposed to be an original scripted series. this will be the first time apple does something original -- stuart: hold on a second. it makes the video about dr. dre -- >> available. stuart: available on what? >> apple music, but you can get it on apple tv, and that's really where you see the streaming play. they're making new content available on a place you can't get anywhere else. stuart: but they're losing the battle, respect they?

>> they are. the little donging you plug into your tv is the biggest winner so far in sales followed by apple tv and then roku and amazon fire. stuart: desperation. >> it's a war in terms of competition and sales. stuart: apple's never desperate. >> not with all the cash they have on hand. stuart: okay. just need to -- >> you okay? stuart: to the pope. he's on his visit to a poor suburb just outside mexico city. he's preaching social equality as a way to address the standard of living for many mexicans. here is father jonathan morris. >> this is the segment where you call the pope a crazy liberation theologian. stuart: no, no. is he a socialist? we've all got to earn the same amount of money? is that the pope's policy here? >> stuart, you're in favor, i hope, of social equality. equal opportunity for everyone. stuart: yes, but that's not what i mean by social equality.

>> that's what the pope means. stuart: he means tax the rich and give to the poor. >> i've never heard him say that. everybody deserves equal opportunity, and that's what social equality is. it's a very different thing to say i'm in favor of the poor rising up against the rich, taking them down, the government taking money from the rich and spreading it out equally. first of all, we know that that would not create social equality. handing out money to people who are not in a position to take good care of it and to rise up with what they're given, that would not create social equality. i don't think pope francis is for that. i could be wrong. if i'm wrong, i'd be happy to disagree -- stuart: you could correct yourself at some point. >> i would also say i disagree with pope francis. stuart: your total misunderstanding of the phrase social equality. >> i would absolutely confess my wrongdoing to you publicly. stuart: okay. [laughter] the pope says he will stand with migrants at the u.s./mexico border. okay?

donald trump had something to say about that on this program. let's roll that tape. >> the pope is a very political person. i think he doesn't understand the problems our country has. i don't think he understands the danger of the open border that we have with mexico. and i think mexico got him to do it because mexico wants to keep the border just the way it is, because they're making a fortune, and we're losing. stuart: i think donald trump has something, he's kind of correct there, isn't he? >> i would agree -- stuart: the pope is dismissing the impact of illegal immigration into the united states of america, the financial impact. he is dismissing that entirely. >> i would agree, and i think the pope himself would agree he doesn't understand the economic realities in the united states of america. he doesn't understand economics at all -- stuart: so what's he doing standing at the border? he's encouraging illegal immigration. >> hold on, stuart. he's spent the last four days talking about corruption in mexico, talking about the drug problem in mexico, going up and down, beating up both church officials as well as government officials saying these are the root causes of poverty.

then he will go to the border, and he will stand with those who are looking for a better place to live, and he'll say there is a natural right to emigrate. not immigrate, to emigrate with an e, to leave one's country -- stuart: illegally? >> no. stuart: and set us up with the bill? >> you know what? if pope francis gets up there with a ladder and helps people climb the wall, i will say that's wrong -- stuart: he is encouraging illegals -- >> hold on. they're in mexico. how are mexicans in mexico illegal? stuart: they're going to cross that border, and you know it. they're migrants. they're on their way to america illegally, and he's standing with them. >> stuart, if pope francis holds up a ladder or digs a tunnel with these very legal migrants in mexico, i will be the first one to say that is wrong. pope francis is not encouraging illegal immigration. what he's saying is that we need to fix a very hypocritical system that we have right now in the united states in which we

allow a porous boarder and allow migrants to come over, then give them jobs when they get here. that's hypocritical. stuart: are you a jesuit? >> i'm not. stuart: okay. you argue like one. father jonathan morris, we appreciate you being with us. >> thank you. [laughter] stuart: the standoff continues. >> it's easy to argue when you're right. stuart: okay. that was good. that was a good outcue. next, listen to this. kanye west claiming he's tens of millions of dollars in debt. he's asking mark zuckerberg, the facebook guy, for help. we'll be back. thereby your path to retirement... may not always be clear. but at t. rowe price, we can help guide your retirement savings. for over 75 years, investors have relied on our disciplined approach to find long term value. so wherever your retirement journey takes you, we can help you reach your goals. call a t. rowe price retirement specialist or your advisor ...to see how we can help make the most of your retirement savings. t. rowe price.

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call today at see car insurance in a whole new light. liberty mutual insurance. stuart: i'm going to call this a bizarre tweet from rapper kanye west over the weekend. he says he is tens of millions in debt, 53 million. he's asking facebook's chief zuckerberg for help. how much does he want? >> he wants a billion dollars from mark zuckerberg. he says he's got personal debt of $53 million. this is the tweet: i write this to you, my brothers, while $53 million in personal debt. there's no confirmation of actually whether that's true or not, but then he goes on to ask zuckerberg, i invest $1 billion into kanye west's idea because he is, quote, the greatest living artist of all time.

stuart: he's looking for headlines. >> because he's dropped a new album. it's available on a service called tidal which is not available to everybody unless you sub vibe, so this is all part -- subscribe, and this is all part of his strategy. stuart: and i am unwilling to give him any more. former new york governor eliot spitzer allegedly choking a woman at the plaza hotel in new york city. the incident ising being investigated by the cops. it was reported saturday night. joining me now is criminal defense attorney jonna spillbore. it just seems to me that governor spitzer with his background is just a target for any and all. >> you would think he would pick better friends. but here's what we know. apparently, a 25-year-old female, i'll call her an associate because we don't know the nature of their relationship, is alleging that she was choked and hurt, physically hurt, by the former governor over the weekend. now, the police are investigating, and lo and behold during the course of the investigation, she's now recanting.

not saying it didn't happen, but she's not being very cooperative with the police. what does that mean for eliot spitzer? chances are, he will probably never formally be charged. stuart: so she's not pressing the charges at this point. >> she's not. but keep in mind in new york the alleged victim does not need to press charges. once an allegation is made and a report is made, it's up to the police and the prosecutors to decide whether or not they're going to formally charge somebody. stuart: once you're in the news for that kind of thing that governor spitzer did in the past -- >> right. stuart: -- you're going to be in the news a lot, respect you? >> you certainly are. and this does not bode well for him in the court of public opinion, but it probably won't see a court of law. stuart: to the point very precisely, thank you very much, indeed. appreciate it. the vacancy on the supreme court, it gives president obama yet another chance to really change america. doesn't it? hour two of "varney & company" two minutes away.

stawt stuart monday morning, 10:00 eastern time almost. it is presidents day. we are live, i believe the other guys are playing, what, three-year-old reruns of undercover boss? [laughter] we've got news and we're live. look at this, when we open wall street again tomorrow the, looks like we'll have a pretty nice rally. big rally friday, probably another one tomorrow morning. how about this? the price of oil up today, 29, almost $30 a barrel. that's a rally. remember, it was 26 last week. here's the news we love. $1.69 is the national average on regular gasoline around this country. the price of gold, there's another indicator, down today, down about $30. so there's an indicator going the other way from oil and stocks. you know, when the other guys are on tape, we are live. yeah, that's "varney & company." second hour straight ahead. ♪ ♪

stuart: obviously, there is a battle brewing between democrats and republicans to fill the seat on the supreme court left by justice scalia. what exactly does his death mean for pending supreme court decisions? peter barnes has that from washington. what have you got, peter? >> reporter: well, hey, stuart. there are about six big case on the docket this term that could be affected by the death of justice scalia, on abortion, contraception, unions, voting rights, affirmative action and immigration. and the issue here is that without justice scalia voting on the more, in the more conservative bloc, you could end up with 4-4 ties op some of these cases. and in that instance, a tie vote maintains the ruling of a lower court. now, here are some lower court rulings that could be affected. a lower court has ruled workers who choose not to join public unions can be required to pay

union dues. lower courts have also sided with texas and other states to block president obama's plan to defer deportations of more than four million unauthorized immigrants, and lower courts are mixed on cases involving employers who want to deny contraceptive coverage under obamacare for religious reasons. but if the justices want, institute, they can defer -- stuart, they can defer these cases and bring them up again on reargument in the new term starting in october. stuart: it really does change the picture, momentum it? it really does. >> reporter: yeah, it does. stuart: i see it snowing there, peter, good luck with that. it's coming here, i believe. staying with the supreme court, with me now is the chief counsel for the american center for law and justice, jay sekulow. we have some names of people being thrown -- they're not throwing their hat in the ring, but we have some names of possibilities to replace justice scalia. the first one up is federal judge diane wood. what do you know about diane wood? let's go through them real fast. >> she's no justice scalia, i'll

tell you that. she served on the board of directors of planned parenthood, she has opposed the rights of christian legal society organizations on college campuses to maintain the significance of their charter when it comes to faith commitment. very liberal judge, would be much more in the vein of justice sotomayor, justice kagan. clearly, someone that is on the president's list. but i think -- stuart: janet napolitano. i'm sorry, we're going to go through this fast. former homeland security chief. she's another name that's out there. >> yeah. stuart: i presume that she's out there on the left of the legal spectrum? >> yeah. and not likely. i would be shocked if she'd be the nominee for a variety of reasons, stuart, not the least of which is is age. i think the president is looking at impacting the court for a generation, so age becomes a factor. stuart: merrick garreland, i'm

not familiar with this judge. tell me about him. >> chief judge of the d.c. circuit, has served on the guantanamo review board on the detainees and has been, frankly, another one that would be clearly in the mold of what justice kagan and sotomayor and clearly what president obama would want.cal as kamala harris who's trying to silence pro-life crisis pregnancy centers by having them mandated that they oppose pro-abortion materials. but, you know, this is, this is a fight for the generation for the supreme court of the united states. so it's huge. stuart: as i see it, it would seem to me to be in president obama's interests to nominate someone out there on the left, because he's got nothing to lose. >> yeah. stuart: the republicans will clearly oppose such a nomination, but that would make them look like obstructionists. >> right.

stuart: the president, i think the president goes hard left, and you say what? >> yeah, i think he does go hard left. look, it's not the republicans being obstructionists, it's history. constitutional history says this: not since 1880 has someone been mom may noted and confirmed in the last year of a president's term in office. in 1960 the senate passed a resolutioning saying that in the last year, and this was a dem cracks-controlled senate in 1960, they were concerned that eisenhower was going to appoint a nominee. they said the last year of a president it should not happen. so the fact of the matter is it hasn't been since rutherford be. hayes that someone has been confirmed, appointed and confirmed in an election year. and this should not be a break from that now 140-year-old history. i don't think we need to revisit that. the president is lame duck. the reality is the american people need to have a say in the direction of the supreme court which is going to affect their children and grandchildren. for people like me who have been litigating before justice

scalia, it's hard to say the late justice scalia, but the late justice scalia for a quarter of a century, we're going to miss this conservative lion of the supreme court. stuart: jay sekulow, thank you so much for joining us. we do appreciate it. very important day. now, when it comes to the election, the passing of justice scalia is an opportunity -- i keep saying this, but i think it's true -- an opportunity for the democrats, and i think it is a risk for the republicans. julie roginsky is for me now. you're a democrat. >> i am. stuart: to you agree with my premise? >> i do. stuart: it is opportunity for democrats. >> i do. when off mitch mcconnell coming out before any nomination was put forward that he was going to oppose whoever president obama put forward, that was a massive miscalculation. what he could have and should have done which would have placated his caucus, his base, would have seen who was nominated, carefully considered that person and then voted them down. but for them to come out without any basis in fact and say i

don't care if you nominate justice ca scalia's reanimated body -- stuart: i do agree with you. because if the republicans oppose everyone and anyone that's put up there, they look like obstructionists. it looks like washington at it again, can't do anything, here we go for another year of nonsense. >> yep. stuart: i think the republicans lose in that case. >> you know, they always do. the republicans never fail, they never fail to miss an opportunity to miss an opportunity. they easily could have done what i just described. but instead they're overshooting, they always do, and it's going to rain down on them in november. i think it was a massive political mistake, and i'm not saying that as a democrat, i say that as somebody who runs elections, and republicans always obstruct. that's to not what the republicans always want. stuart: i'm not going to give you a fight on that one. >> that's what i'm here for. stuart: roll this tape from senator schumer. i wallet your reaction to what senator schumer had to say. this was back in 2007. you know what's coming. >> i do.

stuart: let's show the viewers. roll tape. >> we should not confirm any bush nominee to the supreme court except in extraordinary circumstances. stuart: 2007. >> yep. stuart: there's an election coming in 2008. we should not confirm any bush nominee. >> except in extraordinary circumstancings. and let me -- stuart: you can't have it both ways. >> justice scalia has passed, unfortunately. it's not that he can stay there and wait for a new supreme court justice to be appointed. he's no longer around. we're now -- imagine this. stuart: oh, come on. >> imagine this, imagine this -- stuart: the death of a supreme court justice is not an extraordinary circumstance. >> it's not? how long has that happened in history? a handful. stuart: supreme court seats pass because of the passing of a supreme court justice. >> no, they pass because people resign or people say they're going to retire, they can stay over until somebody else gets nominated.

let me posit this -- stuart: hold on a second. >> yes. stuart: let's suppose that we're going to have a titanic political battle. >> we are, i agree. stuart: i think this battle may be as important as the election itself. >> if not more. stuart: do you agree with that? >> i agree. but let me give you a theory. remember in 2000 the supreme court put their finger on the scale and decided how the election was going to turn out? stuart: i don't think they put their finger on the scale. they called it by the rules and the law of the day. >> fine. they called it the way they saw it. now, imagine if that happened again this year. it's not unprecedented, you have a 4-4 split in the court, and nobody can make the decision. that's an extraordinary circumstance. that's why we need to fill the seat. stuart: that was great. >> thank you very much, mr. varney. i practiced all morning for you. stuart: 15-love, young lady. >> thanks. stuart: we're still with the election and the supreme court. national review editor rich lowry is with me. all right. where do you want to start this one, rich?

i mean, you oppose donald trump, you've written that big editorial against him. he had something to say about this, i think, in the debate. what difference does this make to donald trump and his campaign? >> on the merits you wouldn't trust donald trump to make a supreme court choice like this because he has shown very little evidence that he knows anything about the constitution or particularly cares about it. and again, just strictly on the merits, stewart, i think this would help someone like ted cruz who has spent his life litigating, arguing, defending the constitution, and he's someone you really would trust with this choice. but i think the effect at the margins at least in the primary will put an emphasis on how important this election is, how it's important to nominate someone who can actually win and someone that you know is going to be solid and reliable in these kind of important decisions. stuart: do you think that mitch mcconnell and ted cruz made a tactical mistake by saying,

look, we're going to reject everybody and anybody? we have to wait until the next president is installed before we can get the next supreme court justice? was that a tactical mistake? >> no, i don't think so. it's the truth, they should put that line in the sand. it makes complete sense. we're going to have a big fight over the direction of the country in november, and it might as well be as big and consequential as possible including having at stake this nomination that potentially affects the balance of the court. stuart: it's, i think it's a risk for republicans. they might look like obstructionists. i think it's an opportunity for democrats to play politics, play the election and also to rebalance the court. i think if you balance it out, i think the political impetus of the moment is with the democrats. >> well, look, i mean, if republicans said, okay, we're going to consider a nominee, then you would just kick the can down the road until when you reject that nominee. and what's, why not just say out

front, no, we're not going to do this. let's have the american people have a big say in this by knowing that this is one of the issues at stake in the election. it makes complete sense to me. i think if they are strong and stalwart on this and don't show any wiggle, they'll be fine. stuart: suppose a democrat wins the election in november? >> well, that's a problem. and that's one of the reasons i'm hoping a democrat doesn't win in november. stuart: maybe this will be influenced by this fight over the supreme court. that's entirely possible. >> it should be. people should be aware that at stake in this election is the future of the constitution. and whether we're going to have justices who hue to the original understanding and the text of the constitution or justices who consider it their role to impose their own will on a self-governing, democratic society. stuart: well put. rich lowry, thank you very much for joining us on this monday morning. appreciate it. >> thanks, stuart. stuart: the top man at the cia says it is, quoting now,

inevitable that isis will try to attack america. terror inside our borders. more on that in just a moment. thanks for doing this, dad. so i thought it might be time to talk about a financial strategy. you mean pay him back? so let's start talking about your long term goals. knowing your future is about more than just you. it's how edward jones makes sense of investing. then your eyes may see it, differently.ave allergies. only flonase is approved to relieve both your itchy, watery eyes and congestion. no other nasal allergy spray can say that. complete allergy relief or incomplete. let your eyes decide. flonase changes everything.

stuart: watch this. 1400 employees at the carrier corporation, the air conditioner people -- this is in indiana -- they just learned that their jobs are being sent to mexico. watch this. >> became clear that the best way to stay competitive and protect the business for the long term is to move production from our facility in indianapolis to monterey, mexico -- [bleep] stuart: well, you can tell that was a sharp-edged reaction. those workers were just learning right there and then, management came out and told them, hey, your jobs are gone, they're going to mexico. in response, a director from the un you want to tell me why? >> that's right. of young democratic millennials in the general election sanders

versus republican it's still a 15% spread so i don't want to throw my generation under the bus but if you look at bernie sanders speeches and what he focuses on, 70, 80% of his core competence is focusing on the problem. for example, he'll say over and over again, we have a broken campaign finance system, so really i agree with this diagnosis. i think his solutions are completely off base and with young people in particular, he's channeling a deep-rooted anger and distrust of the washington political class. he's the insurgent candidate and able to come across more authentic and effectively than one way or the other quite frankly she did not get more than 12% of the millennial vote in iowa. that's just astonishing when you look at the resources she put towards that. it's amazing. stuart: hold on for a second, charlie, i've got kiersten with me, former miss america. why are large numbers of millennials supporting bernie sanders? >> bernie sanders is talking about the issues that they really care about and offering

them for free. i mean free college. the average young person has about $30,000 in student debt when they graduate. that's a huge loan. also health care reform. free health care. campaign finance reform, which is isn't an issue of free or not, but really keying into this issues. i think that's why they like him and also you have to look at the psychology of millennials. it's all about the sharing economy; right? it's all about looking to google, looking to facebook, looking at the internet and sharing information. that's really their mentality and why they're more drawn to bernie. stuart: hold on a second, kiersten. back to you, charlie, kiersten just said millennials are collectivists. >> i would take note of that. this is a generation that enjoys the fruits of capitalism and simultaneously using the tools to bash socialism. i will say this. young people if argued correctly could be capitalists. they believe in customization

and initiative that i must have my burrito bowl, my cell phone, or my smartphone customed exactly as i see fit. now, they might be enjoying technology that incorporates different things sharing different technology but quite frankly enjoys more free fruits -- stuart: obviously. >> uber and netflix and if you look at bernie sanders' whole message going back to this archaic one-size-fits-all policies that keep young people from enjoying the young technological advancements. stuart: in part this is a republican's failure, you're going to get a job with republicans. >> they're not talking about issues the same way democrats are. here's the the hope i see for our generation. they love instant gratification, and they get that as a result of the free economy as charlie just said and also like what the government is going to be like, all this free programs

is going to be instant gratification. it's not. so when they fail to perform, the way the millennials expect, we're going to see a huge shift down the road. stuart: charlie, we thank you very much indeed for joining us. your collectivist generation. >> not if i have anything to say about it. >> me neither, charlie. stuart: thank you very much, everyone. appreciate it. now this. martin shkreli has trouble with the irs. he owes tax money. maybe that will wipe that little smirk off his face. we'll be back can a business have a mind? a subconscious. a knack for predicting the future. reflexes faster than the speed of thought. can a business have a spirit? can a business have a soul? can a business be...alive?

>> competitions close the markets are closed but fox business is open. and right now we do have futures trading. looks like we are set for much higher open tomorrow morning. 16,104 the dow higher right now 200 points. oil sitting right below $30, very close right now. this could be the story tomorrow because look at what gold is doing. sitting right above 1,200 bucks. gold right now is more than $100 for the year. so story could be actually the safety trade of gold look at this markets they could be higher. and gas 1.69, that the national average of regular and the cheapest gas in the u.s. $1.12 in okay. they've got the cheapest state average at 1.37. pope francis in the mexican city. "varney & company" will be right back. more varney after a quick break [vet] two yearly physicals down.

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when i went on to ancestry, i just put in the name yes, we are twins. of my parents and my grandparents. i was getting all these leaves and i was going back generation after generation. you start to see documents and you see signatures of people that you've never met. i mean, you don't know these people, but you feel like you do. you get connected to them. i wish that i could get into a time machine and go back 100 years, 200 years and just meet these people. being on ancestry just made me feel like i belonged somewhere. discover your story. start searching for free now at ancestry.com. stuart: bad news for the former drug chief martin shkreli. the irs says he hasn't paid his taxes. how much does he owe? >> a little more than $4.6 million right now. the irs filing documents gawker the website getting ahold of the documents, publishing them, $4.6 million in back taxes, this is for 2015 also for 2014 he owes money as well. having a bad night, by the

way. his credit card was stolen supposedly he's been on twitter saying whoever got his credit card number, he's going to go after him and supposedly scammed by this whole thing with bit coin and kanye west. been a very, very bad day for martin shkreli or we can say it has been a bad year for martin shkreli. stuart: you can say that. >> 4.6 million, they're going to go after his property and everything he's got. ho you do you pay when you've got those kinds of bills? . stuart: i don't know how you do that. but gas prices continue to drop across the country. jeff flock is with us. he said about an hour ago on this program that the price fall is about to stall. explain yourself, jeff. >> well, i'm going to critic myself because after you embarrass me last hour and said it wasn't low enough, i went to find the lowest gas price in gary, indiana, there it is 1.35 at third street gas, i may be robbed before

this is done, though, because it's a rough neighborhood but the price is low, i hope you're happy. stuart: i'm very happy. you know how i like cheap gas. i want you to go out there and look for 99-cent gasoline. look around. come on, lad, get out there and look. >> okay. i'm on it. stuart: all right. don't freeze to death because you're not likely to find 99-cent gas yet although we're hoping. >> and if you're cold -- stuart: i'm suffering from this. my next guest has american muslims in the streets against islamic terror. zuhdi jasser is with us. zuhdi, we want you to give us an update because we want to see muslims in the streets saying we're not going to take it. we don't like this extremist stuff. give me an update. >> well, thanks, stuart, and, you know, listen, i'm a cup half full kind of guy and our

muslim reform movement is getting traction. we not only have also leading signatories in united kingdom and denmark, but we are beginning to come together as the movement of reform against political islam, against radical islam. so i think whether it be on social media, whether it be from pounding the pavement or growing, but i have to tell you. do we have the masses to go to the streets? not yet because the forces of political correctness be they from the pandering politicians on the left, the regressive left, be they the extremes in europe we'll see the movement, the nationalist movement that is somewhat causing muslims to get on the defensive. i think, unfortunately, many of the muslim community have not felt this urgency the need to push back not only against terrorism but the ideology of jihadism as well as and we're still trying to get some more traction as you want really is

reform of islam from the inside. not saying we want extremism. you want the basic tenants of the face reformed. am i going too far? >> well, i think the faith as a spouse of saudi arabia, iran, from the islamist muslim boarder, those need to be reformed. us muslims comfortable in the west, we have reformed our fate. the problem, though, is the petroislam, the groups that are funded from abroad that are really apologous for the state of islam. just yesterday you had the leader of the islamic corporation saying we need to disconnect islam from terrorism. well, listen, he's from saudi arabia. his country basically pushes for there an ideology of jihadism which is the elephant in the room that is creating the isiss of the world. so we can't defeat the terrorist symptom unless we counter the ideology of theocracy that dominates so many of our muslim

communities, not only broad but here in america. stuart: you know, it has to come from america, doesn't it? >> it really does. stuart: because i don't think european muslims are in a position to do this, i don't think they feel that way but american muslims that's where it comes from. last to you. >> these we need to find that there's a from the defense intelligence agency that we are more at risk now than ever before. well, unless muslims wake up to defeat this political ideology of political islam, we are going to continue to be more than ever before. stuart: zuhdi jasser, we appreciate you coming on. a brave man. >> thank you, stuart,. stuart: a vacancy on the supreme court might give an advantage to the democrats. that would be my opinion at this stage. more on that in a moment in new york state, we believe tomorrow starts today. all across the state the economy is growing, with creative new business incentives, the lowest taxes in decades, and university partnerships, attracting the talent and companies of tomorrow.

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stuart: despite the passing of supreme court justice scalia, the supreme court must continue to rule on cases. attorney richard roth is here. technically -- there's only eight members in the supreme court now. >> correct. stuart: so it's a four, four tie, what happens? >> what happens is it will essentially be the ruling of the lower court. the circuit court. there's 12 circuit courts of this country. the ruling of the lower court will be the prevalent law. you won't have a decision by the supreme court. stuart: they've ruled i think issued a ruling on the abortion case out of texas. which would have cut the number of abortion clinics in texas from 40 down to 10. >> correct. and if that continues and if there's a four, four vote. stuart: yeah. >> then what will happen is it will remain the same. stuart: and they will cut the number of abortion clinics from 40 to 10; is that correct. >> that's correct. and the more overtime pay.

>> right. that's under the fairly standards act. there was a dispute, a litigation if you will over whether or not you should actually include the preparation of the workers in their time they were working. stuart: right. >> and it was ruled in favor of the workers. so, again, if it's a four, four vote, the workers will prevail in that circuit for that decision, on that issue. stuart: religious freedom. contraceptives must be delivered from religious institutions to their employee. and that was the ruling. now, if it's a four, four tie, that stands? >> obamacare wins that's correct. stuart: that would be a big deal. >> these are big deals. this is a -- you want to talk about making the heat hotter? scalia leaving now, especially in this time period with the election up coming is a monumentous thing. he was one of the most conservatives on the bench. so now with him gone, we're going to have a lot of issues that are either 4-4, one hagen

stepped down and recused herself, but it's going to make very interesting. stuart: immigration, the lower court ruled that president obama could not shield 4 million immigrants from deportation. in a 4-4 split, he loses on immigration. >> he loses that one, that's correct. and the thing that's interesting is there are so many 4-4 splits. we have the four liberals, and we had the five conservatives. now it's a 4-4. so the immigration one will be a big defeat for the administration. absolutely. stuart: but kennedy is swing voter. i wouldn't always put him in the conservative camp. >> he is a swing voter. that's good. i put him more in the conservative camp but he is if you will a wild card. you don't know which way he's going to go. but as far as immigration goes, it will be a bad thing for the administration.

stuart: i say there will be no new appointee in this year, what do you say? >> mitch mcconnell agrees with that. there may be two elections -- three elections, one for president and one for the supreme court position because that's going to be hotly contested. stuart: thank you very much for coming in on this difficult situation. appreciate it. >> thank you. stuart: more varney after this opportunities aren't always obvious. sometimes they just drop in. cme group can help you navigate risks and capture opportunities.

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stuart: yes, we are live because the markets are acting. they may be closed. but if you look at that, we're going to open tomorrow morning. i think we can say we're going to open fairly strong. up 190 odd pointers. >> that's what the futures look like right now if you believe the numbers. and here's the thing. we've had such a massive selloff, a painful selloff, are people ready to say okay. enough. you always look for, quote, unquote, the bottom but this has been a very brutal, brutal january beginning to the year. the story's going to be oil tomorrow. that's still going to be the story. that will change it up.

stuart: and that's why you've got to have a live program like ours for heaven's sake. >> you'll be ready. stuart: do you want to watch a show that has been taped three years ago? i believe the opposition, our competitors are offering that just. a three-year-old show. not us. no. we were here on president's day live and so too with charles payne in for neil cavuto fresh off his generating success when he anchored this show last week. go for it, charles. >> thank you very much and welcome. this is president's day. and this is cavuto coast to coast i'm charles payne filling in for today. well, yes, the markets are closed but we've god you covered on this president's day because remember it's your life and your money. and we begin with justice scalia's seat. it only took president obama 30 days to announce his two prior supreme court picks, peter barns is live in washington d.c. right now with when the president might react. peter.

>> well, right now the white house is only saying that the president will in fact due time. let me read you the statement from the press secretary schultz when all of this broke