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

over the weekend. he said given that the senate is in recess, we don't expect the president to rush this through this week but instead we'll do so in due time once the senate furnishes recess. at that point we expect to consider the nominee. senate comes back in session next week on the 22nd. but majority leader mitch mcconnell who controls the clock on all of this doesn't sound like he wants to do this before the presidential election. he put out a competing statement that said quote the american people should have the next supreme court justice therefore this vacancy should not be filled until we have a new president. charles. >> thank you very much, peter. well, of course republicans want to keep conservative majority and they hope to drag this out past election, here with more on the rules that actually surround the confirmation process. thanks a lot for joining us, david, because we've heard everything from historical precedence to every other strategy out there.

how would this likely play out? >> well, let me explain some of the theatrics that can go down. after the president makes his nomination, it has to go to the senat senate jewish committee, that whole process can be addressed out, it can be an lifetime. assuming that that nominee can even pass that committee. because if the nominee can't pass the committee, it dies there then a second nominee would have to come through and a third nominee would have to come through. so technically the republica republican-controlled judiciary committee, we have ruby and cruz for the united

states, can the ten months be had? >> let me jump in here because i want to make sure i'm following along. this judiciary committee, is this committee already assembled and anybody not on this committee would be able to filibuster that process? >> it's a standard committee and that committee you need a majority of the vote to go to the senate floor. if that committee rejects the nominee, then that nominee -- >> but is there someone on that committee right now that you think would step up and create havoc or filibuster and outright reject the candidate. >> i have a feeling my republican party is going to find somebody that's going to do that kind of work. this is a big deal. the next nominee of the supreme court of the united states with the void of losing scalia, hard conservative, this is going to be a big, big battle. it's going to happen. and i don't know who that person's going to be. but that person is going to be a hero for the party, and it's going to be the hatchet man to

make sure the republicans get their next nominee. >> how much harder would it be if president obama were to nominate someone that's already gone through the sort of approval process. someone like a loretta lynch that has already given the stamp of approval for a very high office within his administration? >> that could be a complication the republicans will have a quagmire to deal with. he could put up the candidate -- the candidate that's not rejectible, and that could actually hurt the republican party going into the election if they look like they're going too partisan. if you put up the angel candidate, the one that everyone would or had to support, the republican party would be in a quagmire. >> now, we talk about history and of course a lot of people pulling back to ronald reagan. you had gainsberg and then finally kennedy who turned out not necessarily to be the conservative that a lot of people thought he would be. is that another tact to sort of maybe perhaps force president obama to ultimately nominate someone who's not a

clear-cut liberal and works both sides. that is if that person even exists these days? >> that would be a great strategic move on president obama's part. but this is a legacy. the president's legacy are the supreme court nominees. he's going to give us the most liberal nominee that he can find that the republicans can't throw punches at. i don't know who that person is going to do, but i promise you it's going to be very strategic and very, very liberal. >> on the likelihood that president obama's nominee will be confirmed? >> scale one to ten? i give it a one. i don't think it's going to happen. i think republicans are going to pull punches. this is a big deal. scalia was heroes for the republicans. he was reagan's development, he was the supporter of individual rights. >> all right. thank you very much. really appreciate it. >> thank you so much. >> president obama, though, does have 300 days left in office. so do republicans take a risk by holding off that long for

the replacement of justice scalia? senator from utah joins me now. senator hatch, thank you so much for taking the time out. a lot of folks saying this is a dangerous gam bet on the part of the republicans saying we're not going to confirm anyone president obama puts up. bottom line does that do serious harm to the system and the party? >> well, it's nice to be with you, charles, but the fact of the matter is that i think everyone in this country knows this is a crucial period of time and a crucial nominations process, and i think senator mcconnell is right in saying we're in the midst of one of the most controversial elections in history and it would be awful to bring up a nominee on one side or the other in this process. and i agree with them. this hasn't been done before.

the last time was done was i think in 1916 when charles evans hughes decided -- i'm talking about a nominee during a presidential election year. charles hughes was the chief justice, and he left the court to run for president. and so that was somewhat acceptable. but this is a very different thing and almost anybody who looks at this would have to say, yeah, i don't blame the republicans for not wanting to have another liberal justice on the court to change the whole tenor of the court because one of the great justices, justice scalia died. >> well, we all say elections have consequences and democrats are saying president obama was reelected and the american public knew he would probably have a chance to appoint at least one more superior court justified and therefore the voice of the people are being nullified by

republicans here. not just obstructionists but also going against the will of the american people. what would you say to that? >> well, this country is pretty evenly divided between republicans and democrats. so why should in a election year of this consequence where there's all kinds of fighting between both parties, why should we put up with a supreme court nomination process just because this president wants to do it? when it hasn't been done before and the reason it hasn't been done before is they know -- the whole process is tainted because of the politics involved. so, you know, if i was the president, i would acknowledge that and hope he can get another democrat president to make the nomination next year. but, you know, they're not going to do that. he will submit a nominee, he has a right to do that, by the way. i would be the first to champion his right to do that but the senate also has a right to confirm or not confirm or hold hearings on it. and i suspect to be honest with you that senator mcconnell was right to diffuse

this issue and say this should not happen in this very intense election year presidential election year especially with what's happened in the past. and we're not going to do it. i think that's his attitude, and i think he's probably right. charles: so, senator hatch, what kind of public, of course always different public angles, but if president obama came through with a nominee in the next 30 days and the senate held off no matter what including the previous guest of the interrogation of a lifetime, what could the fallout be from that? because people say, hey, a president is elected for a four-year term and essentially what the gop is doing is eliminating president obama to a three-year term. >> well, i can't think of a republican who would want another very liberal justice on the court changing the whole tenor of the court and i think there would be a lot of conservative democrats that would feel the same that would want to wait until the next election to see who is president.

but the president has a right to submit the nomination and we have the right to say "no." and i think under the circumstances, i think senator mcconnell is 100% right. and, yeah, it's a -- it's not an easy thing to do. but this is unprecedented really. charles: do you feel some of the pressure on mcconnell is coming from this it gop race in which the outsiders are dominating in part to the so-called establishment's legged down the general public and is it a chance for mcconnell to come back and say, hey, we do agree with the grassroots or is this something he would have done on his own? >> well, i think it's probably a mixture of both. the fact is that senator mcconnell knows that the stakes are very high. here you have one of the most conservative justices in history who dies. a wonderful friend of mine, a tremendous justice, and during the presidency of one of the most liberal presidents, the most liberal president to have

run for office and get elected and i don't think any self respecting republican and even self respecting democrat conservatives will want this president to turn the balance of the court to the total left. it would take ten years to straighten out the court after that. so, you know, that's -- it's involved here. charles: yeah. >> and everybody knows president obama is very, very partisan and that he's going to take whatever political advantage he can here. and do i blame him? no. but the fact of the matter is that republicans know that and they're not going to roll over and say, well, this is the process and, you know, that -- charles: right? >> that has to be followed. it doesn't have to be followed. there's no reason to follow it in a election year that's as intense as this one is. charles: right. >> and i've got to say i think e, wise leader. the best leader i've had since

i've been on senate, and i think he's trying to diffuse this matter and do it in a way that says, well, it's up to the next president. charles: well, there's no doubt that the midterm elections also have consequences too. senator hatch, thank you for your time. >> great to be with you, charles. charles: the supreme court nomination is in the forefront but not in just washington. also on the campaign trail. former candidate mike huckabee on who is benefiting from this the most. next

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call today at see car insurance in a whole new light. liberty mutual insurance. >> i think it's up to mitch mcconnell and everybody else to stop it. it's called delay, delay, delay. >> i don't believe the president should upon a point someone. >> the next president needs to appoint someone with a conservative record similar to scalia. >> the senate needs to stand strong and say we're not going to give up the supreme court for a generation by allowing barack obama to make one more liberal appointee. >> we should not allow a judge to be appointed during his time. >> i think we ought to let the next president of the united states decide who is going to run that supreme court with a vote by the people of the united states of america. charles: well, candidates wasting no time taking the issue of a supreme court nomination, talking about it

in this weekend's debate. the former governor and presidential candidate mike huckabee on how republicans should handle this. governor, welcome to the show. >> thank you very much, charles, great to be back with you. charles: all the candidates unanimous and saying this is not the time for president obama to nominate a candidate. although it feels like the consensus is he will. how do you see this playing out? >> well, he's going to make a nomination and that's his constitutional right to do. but it is equally the constitutional right and responsibility of the senate to reject that nomination based on the president's likely push for someone who is so ideologically to the left that the senate can justify saying, look, we were elected too, mr. president. and we were elected to be the check and the balance to your branch of government. so anybody who says, well, the senate can't do that, of course they can.

or the senate shouldn't do that, of course they should. that's why they were elected. and if they don't do the job to which they were elected, then the republican party is finished. hillary will be the next president, and we will deserve it. charles: although hillary and or bernie sanders argued that the gop will hold up the nominee no matter who on the stage. there was talk of delay, delay, delay, not based on merit but to the perhaps at your point that this notion is going to be ultra-liberal. is there a test that the gop could share with the american public saying, hey, the potential nominee and ultimate supreme court justice should not or should fulfill these particular issues. is there a litnist test that we can go by? >> well, given seven years of president obama, i would say if he nominates them, they're probably not acceptable. look, this is a guy who has gone after the second amendment. he's the most pro abortion president. in fact, he was the most pro abortion senator.

he even supports partial abortion for heaven's sake. he has pushed same-sex marriage and pushing obamacare and pushing the little sisters to have contraceptives. just let me ask you. is there any decision this president has made in seven years that showed a conservative side? any appointment, any nomination, any speech he has given, anything in seven years that in any way showed he was a conservetory figure? i can't think of one. not one. charles: you're absolutely right with respect to that. what about the notion that he nominates someone who's already gone through this process? someone like a loretta lynch? would that make it more difficult? >> you know, it doesn't matter because i'm going to go back to my point. this is the president who has never put for there anyone who was the middle of the roader, much less someone who leaned a little bit to the right.

we're talking about replacing somebody who was the conservative voice. and let me be careful about saying conservative voice. justice scalia was more than that. he was a constitutional voice. he truly believed in that the text of the constitution was what mattered and that words matter. he was not one of these people that believed in the living constitution that it means whatever we now say it means so that we could continue to change. the constitution of scalia was the tuning fork, and we had to adjust our laws to the standard, to the scale, to the tuning fork. you don't measure the tuning fork to the instrument, you measure the instrument to the tuning fork. and if you have someone thanks the constitution should be adjusted, changed, revised, revisited because the culture changed, that person is not a constitutionalist and the republicans ought to dig in their heels and absolutely say there's no way -- there's a greater chance of a snowball fight in you know where than there is that president obama

is going to get a supreme court appointment. charles: governor, having said that, who do you think this helps the most right now? the candidates that remain in the gop race for the white house? the untimely and unfortunate death of justice scalia? >> well, i'm not sure that it matters a whole lot since all the candidates seem to be in unanimous consent that the next president -- of course they're hoping that it's one of them, will be the one to make the appointment. one of the things that i think would be helpful is if some of the candidates would come out and say, look, here are some people that might be the kind of acceptable people that i would appoint. now, the moment they say it, that person's probably never going to be able to be considered. but i do think that it's an issue for those of us who follow politics closely. those of us who understand the impact of the supreme court. but let me tell you. this election is not going to be decided because the president has the power to appoint supreme court justices. we'll talk about it. charles: right?

>> i'll tell you what it will be driven by. if you saw those folks on the factory floor at the carrier company in indianapolis the other day when they were told that their jobs are going to mexico. that sentiment is what's going to drive this election and anyone who thinks that that will be somehow eclipsed by supreme court nominee has not been out there on the campaign trail as i have. charles: yeah, 1400 jobs to mexico. i showed it on my show friday, i'm glad you brought it up too. that's the crux of what's going on in this country. governor huckabee, we miss you, thank you for coming on, buddy. >> great to talk to you. charles: u.s. markets are closed today but right now the dow futures are indicating a rally of at least 200 points. and we finally hit the button -- have we finally hit the bottom is really the question? and could the markets get back on track? a pretty good interweek reversal last week. we'll discuss it next

charles: welcome back to cavuto coast to coast coming to you live this president's day. if you want to see old tired reality reruns on tv, that's what the other guys got for you. but if you want to know what it matters for your life, your money, your future, this is the place to be. fox business. well, russia's patriarch historic meeting also of course the russian patriarch met with pope francis as well. first time i think since the 54th schism shows you what's happening in the world. the u.s. markets may be closed but we're here for you, your money, and we've got your back. one of the things we're talking about is china. back to trading after being closed last week. u.s. dow futures are now rallying. let's bring in gerri willis and bob to join us now. and, bob, let me start with

you. indications obviously it's a little early but up 200 points. we hit a double-bottom last week on oil and on the stock market. could we have some wind going in the week? >> well, we've got some wind but it comes to the japanese market that's up 1,000 points because their economy declined in the fourth quarter. and china's exports were down as were their imports. their exports were down 60%, imports down 14%. yes, that could give us a little bit of a boost because people excited about central bank intervention but this isn't something i would consider a long-term rally. a bear market rally most likely coming up. charles: gerri, you always talk about staying the course and even the notion of buy low, sell high, which is the axiom we always present in market but rarely apply. >> that's right. everybody's asking me, is it over yet? is it the as the volatility over yet? is the selling over yet? i can't answer that question and nobody else can either.

so you have to manage your portfolio for the future. you have to keep your eye on the bottom line. and that means always having the right asset allocation and sticking to it over time. you have to match your age, your -- how much volatility you're willing to take personally with how you invest. and that's really how you make -- heats really how you make your portfolio work over time, charles. charles: although, bob, listened, the average stock for eight years is now four months. these saws scare the heck out of people and you think they're going to continue; right? >> i think they are going to continue. they're going to continue to scare people but with that said, i do think if this market goes down enough, the fed will save it and push it back up. charles: how can the fed save it here, bob? they've got 25 basis penitentiaries in the quiver, zero credibility and at this point if they try anything else,. >> i think that's why they're

reluctant to do what you're saying and i think they will and i think $100 billion a month could go a long way to push this market up and if that doesn't work, kick it up to 150 billion a month. something will work but it's scary. charles: juan gerri, people have gotten to the notion of buy a great company and own it. particularly a great american company because they always hear about the fed and the intervention. has it gone too far? >> well, people are scared to death. you're absolutely right. been through the dot-com selloff and they just don't trust the markets and it's perfectly clear why that might be. when you have 26 straights strait days of 200-point or more swings, people see that vol vol tilt, they don't like it. and i would say this about today's trading. i just firmly believe that all the central bank intervention is part of what's causing out of this concern and worry because the regular market fundamentals aren't holding sway. all out of washington, all janet yellen and the idea that

i think japan's numbers were bad for gdp. therefore that's good for the markets because it could mean more central bank intervention.k where we were. we haven't taken one step forward. charles: i agree with both of you guys. i wish the fed didn't exist and the current fed has made matters a lot worse. thank you, both, very much. >> thank you. charles: well, w to the rescue. former president george w bush hitting the campaign trail to help out his little brother but is it too little too late to help out jeb? we'll be right back this weeks btv spotlight features

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>> george bush made a mistake. that was a beauty. >> i am sick and tired of him going after my family. my dad is the greatest man alive. >> while donald trump was building a reality tv show, my brother was building a security apparatus to keep us safe. >> that was jabbed hitting back at trump on saturday. he is going to get a little help today.

he won nearly 54% of the vote in 2000. the former romney senior advisor on hearing trump here. hearing jab at gain some momentum. you think it is too little too late? >> i think he is very popular still. he will bring some attention that he needs in the closing days. i do not know if it will make a change in the dynamic days. it does bring a.a. fight in the debate based on donald trump. george w. bush was responsible for 9/11. w is really now focused. donald trump is going back to talking points and conspiracy theories from michael moore. >> it is a strange situation.

there are people i know who adamantly would have, who did fight back against these accusations. now, they embrace them. if trump said it, it is true. maybe he was wrong. they actually knew that he was wrong. he applied to the american public. that is a huge blow to the american gop. >> yes. if he thinks he will tap into an anti-9/11 conspiracy kind of republican voter, i do not know where that voter is. >> without help him in the general election? >> there are democrats that believe this stuff. he is all the way with oliver stone and michael moore now. i do not think that that will mess is literally help him anywhere.

he looks like he does not know what he is talking about. it looks like he has not read the 9/11 commissions. he just really does not know what he is talking about. >> donald trump live in mount pleasant you'd what do you make on the notion of it? the latest polls have them up huge. a phenomenal lead. this stuff does not hurt him at all. perhaps he is right. maybe there is nothing he can say or do that would persuade those folks. >> yes. for those voters, he can say just about anything. he says crazy things. it does not bother his voters at all. the voters that matter are the other voters. that could be calcified part of the electorate. they think that george bush is

responsible for 9/11. i do not think that there is a lot of support in the party for that. that just will not last through a general election. >> you would not agree with the argument. >> the course of action taken by president george w. bush. a new kind of gop. most of the gop does recognize the iraq war was a mistake. not one that we totally new. we did not have perfect information at the time. if we knew what we knew now, it would be easier to go in. where trump breaks from that is

he is actually saying that bush knew about, you know, he knew about him not being there. he lied intentionally to get us a war in all intents and purposes. neil: thank you very much. we really appreciate your time. will we ever get another justice like al-assad? we will ask next. ♪

donald trump: "people love me..." donald 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.

back gop calling for supreme court justice just like scalia. voting for him back in 1986. thank you for taking out the time. i know that justice scalia was a good friend of yours. the nation mourns a loss. the big question now is, whether or not his shoes can be filled. >> true. he became a nice friend. he had a delicious sense of humor. we like having those little stories and jokes together.

his wife, a gentle giant of a woman, filled with grace and style. he was special. he got a huge confirmation when he came before the committee and the senate. we had just been through the horror story. they were waiting for somebody. >> do you sing and play the piano? yes, i do. honestly, it was a piece of cake. now, south carolina and all the shots of the civil war started there. we will see one of those come the first election. it will be tough to fill the shoes. there is no one that could ever match his concept of the constitution. originality. what were they thinking of when they put it together.

they talk about defense and the postal office. states and all the rest of it. there will never be another one like that in the history of the court. >> really known for pointing out the way law schools work these days. i guess to your point, it is hard to find someone. someone who would adhere strictly to the words of the constitution. not think of it as an evolving document. do our law schools even produce those kinds of freethinkers anymore? >> i am seeing litigation here of 747 quality ran by authorities. that was true. law schools were just turning out lawyers and not law. he believed that. he lived it.

textualism, original is him, look him in the eye. big smile. he could play one on you. firm, fair, tough. he was a piece of work. he believed those words. how they came about. it came about because they would not let the media within 100 yards of the building. they had to do something to protect a guy coming out. they did that. free speech. all the others. the second amendment had a meeting. what was it. that is what he did did he brought parity to it, whether you like it or not. the guy is probably right. we have to make it a living document. that is where he knew it went

awry. >> there is this pressure. president obama calls out the supreme court during the state of the union address. i have never seen anything like it before. the outside pressure that is on these nine justices. is that something that will be difficult to overcome in the future. >> that is her subject matter now. watch out for the political eyes asian of the courts. i think it was on abortion or gay marriage. just scanning them out. just rip them out. that is why he gave him a lifetime of appointments. staying away from the passions of the mob. let me tell you, this president is not about to put up anybody that is not of his strife. i heard him speak to the legislature the other day. i thought i must be in

dreamworks. lord, he and harry reid just had that on george the first. this is nuts. you cannot live a hypocrisy like this. >> we appreciate you taking out >> always a pleasure. bernie sanders making his pitch to black voters. will it work? we will be right back. ♪ you both have a

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that we are bringing forth in terms of economics and chris criminal justice, this works for all americans. especially those that are the hardest hit economically. youth unemployment in the african american community. >> bernie sanders touting his agenda to attract five floaters. really the things that are hurting the black majority. nice seeing you. it is so funny. if you look at the places, towns, cities, states, they have been ran by democrats for decades. they always get away by saying somehow they are holding you back. >> let me show you how it is. he met with grace leader al sharpton in harlem last week. they are both very desperate right now.

they need that black voting block. what they need to understand is the progressive policies that have failed these americans. they have failed these urban cities. they are harming businesses. they are the failing public schools in these communities. remember, you have bernie sanders and hillary clinton. they both supportive lot of obama's policies. obama's immigration policy. it will flood the job market with low skilled jobs. disproportionately, they are employed in those jobs. which is a shame. obama's energy policy. it will drive up. average incomes are much lower than black families. this is the data that they need to look at.

>> if i was talking to a bunch of friends, we would say, hey, it is time to fire the coach. you are talking about a political party that has a losing record for decades. the other side does not articulate enough. guys, wake up. look at what is happening. >> what a missed opportunity for the candidates. lower taxes. more money in the hands of the families. better policies. power in the hand of the parent. a huge missed opportunity for our republican candidates. look at the data that is out there. do not look at the individual. how would your family be impacted? >> the strategy of collecting kits of victims. maybe enough victims, enough

women that have been wronged by mean-spirited policies and sexism and enough blacks and hispanics. you can get enough buckets, when do the people say, hey, i do not need to be in this bucket. >> playing a race card. a gender card. a child card. that is what they do. where are these individuals standing? how are these policies going to affect you today in the future. >> i write. eggs a lot. you look great in your tiffany blue. results in key cases could include justice scalia. we will talk about it next. ♪ i get it. but you know i think you own too much. gotta manage your risk. an honest opinion is how edward jones makes sense of investing.

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>> better get its act together.

i signed a pledge. they are in default of their pledge. >> that was just moments ago in south carolina. throwing down the pledge. they may be in violation of the pledge. he signed it. a lot of pressure. pack to the battle over justice scalia. it is actually in the midst right now. connell mcshane has the details. >> there are a number that could go forward. what happens there, as you go back to the lower court ruling, a number of big issues in the near-term. my question about who takes the place. a case involving unions that is out there now. basically what they are looking at here is states can make a nonunion public employee pay

partial dues. this would be a loss for the unions. now, there is also the religious freedom cases. the burwell, hearing and other obamacare challenge where you have objections on religious basis. lower court ruling went in favor of the administration. finally, immigration. this does not favor the obama administration. reviewing the administration executive action. they have ruled against the president. the bottom line is, they have been talking a lot about this. these issues, unions, religious freedom, immigration, they will come up. charles: thank you very very much. what happens now?

here to explain, susan. thanks a lot. what exactly will happen? >> here is what happens. technically, it would be affirmed by any divided court. it is an important issue what the court will often do is say, look, we are equally divided. let's put off this case to next term. i was a clerk on the court. we were dealing in those days. there were a couple very important cases. it is not typically what happens in that case. they have brought residential value. they are looking for guidance. you get no guidance. as if this support never touched it. the teacher's case.

the religious freedom case. the texas abortion case. i would not be surprised if at least some of those cases are held over by the court. that is unless they have a nominee and place and conference. charles: they are so important that they are put on hold or put on a shelf. >> the court itself. it does not explain it. it does not say anything about it. the court meets in a conference. they will argue monday, tuesday and wednesday. they will meet in conference on friday. each of the justices express his or her opinion on how they would vote in the case. if one of these cases should appear to be divided for, for and the court believes what it really needs to do is have some guidance to the lower court, it

may decide on its own to put it off. >> would there be some sort of vote? the importance of their decision. they should put one forward or just hold off on it. >> until they hear that case, they do not know if it will be a four-four split. there would be no reason to put it off. six-two or seven-one. the only time this issue arises is after hearing an argument the court is equally divided. what they have to do is they have to order three arguments. they cannot just say let's hold onto this one intel justice smith arrives and we will hand him the papers and vote again. they have to hold it over. it has to be re- argued before a full-court. you will hear that argument from democrats.

this is why we need to get somebody concerned. too much uncertainty if we do not. this is why this election matters. we should give the people a voice in this election. >> is there a voting process to determine? this looks like four-four. i think, let's go to relevance. how would that work? who would be the tiebreaker? >> i would have to check again to make sure. traditionally, they first express their opinion. getting with a junior justice and going all the way to the chief justice. >> we want to get a little bit more clarity on that part. i find it fascinating.

that matters as much as anything else. particularly, when it comes to politics. >> my pleasure. have a great day. really heating up in the senate. i spoke with orin hatch just in the last hour. take a listen. why should, why should we put up with a supreme court nomination process just because this president wants to do it but sure mark the reason it has not been done before is because the whole process is tainted because of the politics involved. >> i want you to take a listen to senator chuck schumer. during the final term of president bush's presidency. take a listen. >> we should not confirm any bush nominee to the supreme court accept in extraordinary

circumstances. >> whether it could hurt republicans this election. what do you think? >> well, both sides have lined up their talking points. this is not an issue, necessarily of 2016 that will change the mind of a lot of independent voters. getting them out and emphasizing, underscoring what an important election this will be. >> you could really say that this party is an obstructionist party.the president was electeda four-year term. >> our country is very polarized. they need to have a voice. he has the right and the authority to make a nomination.

by the same token, elections have consequences in the midterm election. that is why the gop controls the senate. obama has the authority to make a nomination. that will be the battle in the purple states. setting current gop senators calling them purple states. for seven senators states, this may become an issue. it is about bringing out their base. wanting to see it. they want to see an action. >> that is interesting. neil: we have heard a lot. not only is the white house up for grabs, but perhaps the gop's riff on the senate and congress itself. could this be the issue that's ways that one way or another?

>> it is not just what you believe the senate should do in this case. what is your strategy in terms of the next appointment. the influence that your name will have over the races. we know that the presidential candidates do influence the down ballot race. >> wow. the plot they can. really appreciate it. a new cold war. russia's prime minister is warning. ♪ you do all this research on the perfect car.

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>> new video we showed you in the last hour. russia's patriarch. very historic meeting. also new this morning. a gallup poll revealed that u.s. is the number one military power. i have to tell you, colonel schaeffer, the americans say that we are the number one american power in the world.

64% in 2010. i think that speaks volumes about where we are in terms of the world. >> i think that you are point is spot on. the will to fight. the ability to fight. this administration has done everything it can to lead from behind. secondly, when you leave the military like ours, no clear direction. you have a boat. a very expensive boat. every other potent one like north korea, basically strong man like putin, having an open field to run. they have been held back.

even on the republican side. it is not large or aggressive. is that realistic in a world where you have vladimir putin who just over the weekend, there are images of him bombing hospitals. killing everyone. anything that moves, they are killing it. >> it is not okay. i am amazed that john kerry. saying absolutely nothing. it is totally befuddling to me. so much of what is necessary. it is not the technology. it is not the manpower. the best thing that you can do

is defeat before you get to the battlefield. that is what we did during the cold war. we are not doing that. there is no perception. it is the opposite. it is the perception that is hurting us. that is what causes war. neil: no dow about it. and bolding right now. the public, we get to 1000, 2000 losses in any sort of battle.

we cannot ever have a winning strategy if it involves heavy losses. >> this goes back to korea. in unfinished war. we have to decide if we are in it to win it. the problem always comes back worse. i think people would look at today and say we should do something to resolve this. launching them on their adversaries. we have to decide. are we going to win or meander around? try to reintegrate that. >> grade-point. reaching for why. we really appreciated it. >> investors just wait this

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charles: it has been a crazy year for the market and u.s. stocks. should investors keep playing the market or should they get out? dave, let me start with you. a lot of folks tossing in the towel here. is that the right move? >> i do not ding so. i think that it is always critical. at least a semi- history box. helping to put rings into context. number two, i think you have to really be thoughtful enough.

try not to be reactive. i think those things kind of dig you out of that rat race. dave talks about being a history buff. a lot of it goes back to 2000. they know about what is going on right now. burned and burned and burned. the banks that collapsed. many of them going out of business. i always go back to something. you were an owner. assuming you are just talking about the u.s. rather than when you buy treasuries.

lending money to uncle sam. the s&p 500. 2.2% thereabout. a broad basket of stocks. >> you actually get paid to wait. a better yield in bonds. if you hold long enough, you will make a whole lot of money. >> you are a stakeholder in american business. >> it is so interesting. i see someone at cracker barrel with their under armour t-shirt and nike sneakers and they tell me they don't know what to buy. >> a ought to buy cracker barrel. [laughter] every time stocks go through these periods, there are a lot of voices out there that say this is the end. get out now. a hundred billion dollars of stocks or so that the ultimate low. these people will never make that back.

for the most part, they do not ever come back. >> i think they have a better chance at making it back opposed to jumping out of a plane at the right moment in time. we are dealing with a bunch of policymakers. i don't blame the policymakers as they don't know what they are doing. they are building this goldberg machine around the market. it ultimately puts a whole lot of uncertainty in their. it is the best thing we can do for the average investor in my opinion. >> i do not know if we can. >> in terms, you may hear more rhetoric about that. one thing contributing, one thing contributing to the volatility that will continue is bernie sanders discussing evil.

by the way, we are ready have this in this country. we already have it. it is called short-term capital gains tax. the possibility that you could get the nomination. american companies. thanks a lot. >> they continue to fall. national average. now below $1. to jeff flock. whether this will lead to consumers finally spending back cash. positive take on that. look at that. 1359.

that is saving you a quarter. $0.50 a gallon. are people beginning to spend that dividend? take a look at retail sales. we got them last friday in january. gas station sales, down about 8% year-over-year. retail sales were up. a lot of the economist said people aren't spending this money. hey, listen, it takes a wild. you do not necessarily go right out and spend that. eventually, it does have an impact on your spending. that may be a positive development. >> i am with you. i hope it goes further into our economy. thanks a lot.

>> even though gas prices continue to come down. the surcharge that you are paying, i will give you a real world example. that is not coming down. this is coming from an organization. they complained about this. travel agents association. they sent a letter to the trade organization. you, essentially, are stealing money. because of the fuel surcharges. even though they are almost at record lows. airlines continue shamelessly to misuse this ticketing loophole. manipulate the transparency of the ticket price. that is coming from the u.s. ta

trade association. it responded this morning to that letter exposing what the airlines are doing to all of us. expect fares to tumble. just because fuel has come down, it is wholly unrealistic. we are going to go to greece this summer. been saving up for this trip. i just called delta to figure out what the fuel surcharge is on this ticket. in my case, it is why are. the surcharge, $528. charles. >> they will tomball. the surcharges are still as high as ever. >> i sure hope you enjoy this trip to greece no matter what. >> jacking up those drug prices. this time, from the irs.

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let's take a short 5-minute recess. fedex ground is faster to more locations than ups ground. 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. >> donald has this weird pattern. when you point to his own record he screams liar, liar, liar. >> you want to talk about weakness? it is weak to disparage women and hispanics. [cheers and applause] it is weak to den any great the disabledded.

>> adults learn not to interrupt each other. >> i know. >> if donald trump is president he will appoint liberals. if donald trump is president, your second amendment will go away. charles: gop candidates hitting donald trump pretty hard at gop debate. new poll shows he has commanding and very strong lead in south carolina. daily caller is here with more on trump's lead. you know, vince, donald trump i think hit the nail on the head not long ago, saying his core support will not waiver. it will never waiver, no matter what. time after time that's proven. >> it is unbelievable. by the way i could not sit down during the debate. i was shouting at tv the whole time. charles: who were you shouting at? >> just everyone. the spanish, just everything happening during the debate, it was amazing. i say this, rum trump has broken a lot of rules in politics. number one, never predict his demise. he said john mccain is not war

hero, he said everything, his demise has not come. don't predict that. one of the rules he broken, normally candidates are so inclined to hue to whatever the electorate wants them to say. donald trump doesn't do that. he kind of says whatever is on his mind. i think he is changing his mind, giving people permission to have different thought in the elect rat. when he attacks george w. bush, coming to south carolina tonight, yes, people in the audience are booing. if numbers hold up, i have permission to think george w. bush was not a great president. he is changing people's hearts and minds in politics. that is interesting phenomenon in politics. charles: does that ultimately hurt the party itself when you say one of our presidents with pretty good approval rating is a liar? he deliberately put america into war. that is something you do with far left organizations like codepink.

>> absolutely. codepink, perhaps in trolling way they agree with donald trump. i do think it unmines at least the party system but the tone of the electorate itself, so bewildering in this cycle, everything from bernie sanders to donald trump, i don't think necessarily undermining the party that donald trump is putting himself at risk politically. we'll see what happens. it will be a big deal if he evaporates 20-point lead in south carolina with calm days to go before the vote. charles: i find that hard to believe. although he had momentum in iowa, he was going up and cruz was going down and somehow that didn't work out. back to the notion, we all have to applaud donald trump for a lot of things with respect to this, the politically correct aspects of it. the circle, you know of people who are interested and now want to be a part of the political system and all those things. perhaps it was time for the gop to have a shake-up, to what degree will it lead the party? >> to what, repeat that?

charles: when all said and done what will be the remnants of the gop? >> oh, man what a great question. at this point the gop, the establishment gop has no interest in seeing donald trump take this to the distance. neil cavuto, boy, has he predicted this contested convention forever. you may see a explosion in the republican party, certainly understanding what it is that the electorate wants and definitely for trying to get establishment candidates into the white house. if donald trump continues momentum here, and starts going through the south to pick off states, there are fewer and fewer opportunities to for the bop to take out donald trump. at this point he looks like the momentum, absolutely. the notion of a contested convention may be none starter particularly if he wins south carolina this week. thank you. >> my pleasure. charles: donald trump joins maria bartiromo tomorrow morning. on "mornings with maria" at 7:30 a.m. eastern time.

you do not want to miss it. should be great. ex-pharma ceo martin shkreli has new trouble today, this time with the irs. now they're going after him.

>> i'm gerri willis with your fox business brief. former ceo of turing pharmaceuticals with securities fraud charges is hit by the government again. this time martin shkreli is facing $4.6 million lien from the irs for unpaid taxes penalties and interest. he is the so-called bad boy who raised price of dara pim by 5000% a lien was filed shortly after his arrest. shkreli complained that his credit card number had been stolen and threatened anyone who tried to use it. that he lost 15 million on

bitcoin trying to purchase the rights to kanye's west newest album. despite his problems he has tried to become a hip-hop scenario. his attorney benjamin branfman did not confirm those two reports. more neil after this.

>> i don't think government is doing that bad of a job. i think government does a pretty darn good job, considering how big government is and how many

difficult problems it has to address. i don't see what washington has done that is that terrible. i don't understand the rage against washington. charles: that was on friday night. did not have time to hash that out with ben stein. we'll debate it now. to gina loudon. gina, government it east big, and not too big, according to ben stein doing a pretty good job. >> all i can speak of he is somehow very insulated, charles, because apparently he hasn't flown on the tsa lately because they can't find a bomb and can frisk a little old lady. i guess he hasn't had to do his own taxes lately, you call the irs to ask a question no way you can get an answer but they're really good going after conservatives. no possible way anyone that doesn't live in bubble could think government is inefficient these days. charles: christie, not only inefficient but large, bewildering and subs more money out of the economy. bigger big government is part of gdp the less the private sector thrives. we're seeing that over the last

few years. >> that is certainly not case. our continue continued to thrive. we had two, 70 months of positive job growth. charles: that is political talking point do you look the average person in the face, i will let you finish. i want to ask, you never had quarterly gdp, yearly gdp has been terrible. it is considered the worst post recession recoveries in history. so i know there is ways of finding these bullet points can you say that to the average american whose paycheck is less than it was things are great. >> i think the question you posed whether we think government should be bigger or smaller. charles: right. >> i don't think that is the question. the question is whether we're doing things effectively. i think obama administration has proved ven we can do big things. look for example, affordable care act which republicans tried to block 50 plus times, still trying to block it et cetera. and at same time we have given 11 million people health care, right? so that is showing that government can be effective, can do big things. i think that is whether

government is big or small. we want to see them being efficient end. charles: although, gina, majority of health care exchanges on obamacare closed down. gone bankrupt. the others will eventually. insurance companies are fleeing it. united health and aetna saying you know he what? this is thing is killing us. enrollment is nowhere near what people thought it would be. >> that is not true. charles: got economy where government is so big, so robust, it is hard for the private sector to evolve. >> let's not forethat health care costs under obamacare have increased 35%. oh by the way you can't keep your doctor. that was the one promise from the get-go. anything government does, bigger it gets more inefficient it gets. perfect law of economic physics, charles. most ridiculous assertion to say bureaucracy gross gets to do big things. if big things is keeping hillary

out of trouble by the doj that is big things. big things failing consistently taking care of average americans needs to answer, you can't even call the irs if you're having problems on your taxes, charles and actually get an answer. people know that government doesn't work well when it is big. why some things government is doing should be privatized. charles: christie, last word to you. >> we're sort of missing the point here. when most people talk about government being too big, talking about things that don't actually cost us much money. they miss direct argument to things like social security and medicare and don't talk about the things we spend a ton on like our defense programs. so you know i'm not really sure i think we're having the right debate here. charles: you know, that is the one thing obama has made smaller, our defense. no doubt about it. you do have to ask how did he get $19 trillion in debt, 7 trillion under president obama if government is not too big. we have to leave it there. appreciate it. donald trump continues to hit china but do we need china? we'll discuss it next.

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>> china is still buying up our real estate here in america as well, but you contend that maybe there should be some sort of, somehow we should mitt gate or lower trade with china? >> put it this way, trump is world class negotiator, charles.

we've done terrible trade deals. whether you like trump on other issues or not he is business guy, he is knows how to create jobs. he is talking about a tariff of about 45% on exports from china. that would make things more competitive. they're manipulating the currency. i love china, i love the chinese investing in new york city, san francisco, in all of our major cities but there is manipulation of the currency. there is reason to be worried. charles: do we manipulate our currency? >> not like china. charles: what i'm saying every central bank around the world has taken action. you have negative rates in japan. some yields are negative in germany, sweden, denmark. what country doesn't manipulate their currency? we bought $4 trillion of junk, our fed to manipulate our currency. >> right. charles: one thing to say you're doing it but everyone is doing it, no. >> everyone is doing it. chinese are doing it more. charles: are they doing it more or doing it better? >> they're doing it better. when you talk about the housing market and talk about the growth

of our real estate markets you have to look at the broader economy. we have unemployment rate north of 10%, real unemployment rate, not this 5% we keep hearing. labor participation rate in the lowest level in 40 years. charles: right. >> you have gdp growing sub-3% levels, worst since world war ii. the trump presidency i think he would create jobs. he knows how to create jobs. he understands we have to bring down the corporate tax rate. he understands government needs to get off our babes so the private sector can grow again. charles: i went through all of that stuff. we do need to negotiate better deals but i do think also certain tariffs like, if there were 43% tariff. my question is to the average american out there looking to buy tv at walmart, for instance, that tv looking at for 500 bucks will cost 1000 bucks. can you endure that pain? >> it will make us more competitive in the world. if we're more competitive, i heard people say chinese will not invest and trump president

will go hard on them. that is nonsense. if you're economy is doing bert and there are jobs and growth, they will come here and invest just like they have been. charles: agree with that. china did $123 billion cross-country deals. 70 billion this year including deal donald trump talked about but should we be focused more on internal policies? i think our corporate tax structure, these fees, these regulations i think they're doing more damage to us than china is? >> 100%, charles, all across the board. i think what you're seeing with sanders surging and really destroying hillary in that last primary, and you see trump surging it shows people are fed up with status quo. they want change. they want real change. charles: listen, i'm with you one thousand% on that. believe me i think this is the time though i also would like to hear candidates talk about the future because i'm not sure, i'm just not sure we can get back to

sort of manufacturing type of economy that we had in the past on global economy. in other words, foxconn, the average job is $4,000 a year. sure we bring them back, how do we take the $4,000 foxconn job a $50,000 american job? that is not easy. >> that is tough. we lost 500,000 jobs in the manufacturing sector. it is very tough. it will not be easy, got to do something. charles: of all the people running you're really confident donald trump is the man to do it? >> from a job perspective i think donald trump knows how to create jobs. charles: you know what? a lot of people agree with you. >> thanks, charles. charles: donald trump joins maria bartiromo live tomorrow morning at 7:30 eastern time. earlier this hour donald had this to say about the rnc. take a listen. >> the rnc better get its act together because i signed a pledge but the pledge isn't being honored by them. as far as i'm concerned, they're in default of their pledge. charles: sounds to me donald is

throwing down the gauntlet. maria will certainly ask him about it tomorrow morning 7:30 eastern time right here on the fox business network. just sis scalia and ginsberg proved to be great friends while being polar opposites on issues. could congress learn a thing or two from them? hey, could political parties learn a thing or two? we'll be right back. reflexes faster than the speed of thought. can a business have a spirit? can a business have a soul? can a business be...alive? its intelligent drive is msystems...ng. paradigm-shifting. its technology-filled cabin...jaw-dropping. its performance...breathtaking.

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.... >> justice scalia may have been an ideological polar opposite, but they were still great friends. congress can learn a thing or two about that friendship. are those things over? trish: absolutely. it has become almost militant. i think they have developed this relationship over time. i think it was more of a mutual respect. whoever gets into that position is going to hold a very important position.

cannot be underestimated. how important that seat is. it must go to someone who will really look at the issues. something that does. it does not morph to reflect the times. is there someone out there that could fulfill that? the constitution defaults. >> the question is whether or not college campuses are becoming more liberal or conservative. i think that you are supposed to interpret based on the law and not on emotion. justice scalia was a conservative vote.

if the president makes a nomination that is very far to the left, i think they will have a hard time getting approved by the senate. yes, i think that is what the american people are saying. we can get some things done. charles: president obama comes up quickly. makes a nominee. the republicans in the senate pocket. let's say it is not a far left candidate. >> let me throw this out. let's say it is hillary clinton. [laughter] charles: hillary clinton for supreme court justice. i think that would not make it. i think that would be dead on arrival. it would be hard for the gop tuesday she was okay for ag, but not okay for the supreme court. >> i would have to agree with

you. they are not all issues that the justice department have considered. you have had crews are ready saying that whoever it is, they will fight it. i do not think that the process can happen that quickly. i do not think we could see a nomination go through an election. tonight is really special. you speak about growth and do speak about communities. a woman that has a little house in the middle of a big mall. she wanted to die in her home. she was offered $1 million. very similar to a movie called up. the story is so inspiring. we went to seattle to see the house. you would not believe who she left that house two. i will leave you with that. one of the first managing editors. her kids found 1500 drives

photos in the house on staten island. we found some, too. charles: eminent domain. >> it was not the government. it was private industry. trish regan. >> thank you so much. five days before the state's all-important primary. the race for president is rocked. the supreme court justice. welcome to the intelligence report. hitting the campaign trail. a vicious republican debate where donald trump may have been the most contentious debate yet. >> i am tired of him going after my family. [applause]