lou: or they get a cold or flu or go fly-fishing and exhaust themselves for their next term. they work so hard. lis weihl, thank you so much. mercedes colwin. thank you so much. 91% of you say the pope is fair game if he talks about u.s. president politician which he is expected to do. kennedy: i'm watching this presidential pukefest. the death of a colorful jurist send the rate into something worse than chaos. the moment i heard of justice scalia dying i put my head in my hand and moaned for the country because i knew fit would turn into double poison. by the time i looked up republicans and democrats were

jockeying to bourke each other. democrats want to stack the bench but republicans have the power to block any nomination until bernie sanders is sworn in and can nominate karl marx jr. in a black robe. >> the precedent has been set. it's been over 80 years now since in the last year of a sitting president there is a supreme court nominee. >> it's up to mitch mcconnell to stop it it many called delay, play, delay. >> i think president obama will nominate a person who in all likelihood will be out of the mainstream and the senate will reject it. kennedy: former scotus clerk ted

cruz. >> one more liberal justice and we'll see the court mandating unlimited abortion on demand. we'll see the court effectively erasing the second amendment right to keep and bear arms, and we would see the court dramatically undermining the religious liberty of americans all across this country. kennedy: what's more important, the presidency or the supreme court? on the show, donald trump threatening ted cruz with lawsuits. is dragging jeb's family into the slop fight. scalia's replacement is the talk of the hour. what does the constitution say about it. bernie sanders is gaining on hillary in nevada. will the democrats actually have an election? welcome cottag d welcome to the

adjective, i'm "kennedy." according to the real clear politic average donald trump has a comfortable lead in south carolina. the gop candidate agreet next president should take calia's replacement, but they all think they are the man to do the job. democrat say the republicans are just playing politic. julie roginsky, andy levy is here, co-host of "red eye." and katie pavlich. town hall.com. welcome everyone. should republicans just vote? >> absolutely. i'm not a fan of mitch mcconnell and american senators

telling the president he shouldn't nominate anyone. i don't think you stop being president in the last year of your office. i think there is a big difference between telling the president he shouldn't nominate anyone and voting him down. it's disrespectful to the office of the presidency to say you shouldn't nominate anyone. he's elected for a full term. he's not elected for a 3-year term. i don't like this. kennedy: what should the republicans do here? does it make sense for them to bully the president into not nominating anyone at all? >> i don't think that's what mitch mcconnell is trying to do. you look at the language he used. he specifically said, you know, we think the next president should choose the replacement. they haven't not said they don't think the president should nominate anyone. the president has a

constitutional obligation to nominate someone. he should, then the senate has the constitutional authority to take it up for a vote or not. there is no requirement for the senate to actually do it. so that's the way it works. but you are right. there are some republicans getting confused with their language saying the president shouldn't nominate someone when he should nominate someone. it doesn't mean he should confirm that person or take a vote. kennedy: to say it hasn't happened for 80 years when justice kennedy was confirmed at end of reagan's second term. it's bringing out the worst in both parties. >> it's bringing out the worst of marco rubio. he said we shouldn't get a supreme court nominee.

they never miss an opportunity to miss an opportunity. let the president put somebody up. hold committee hearings. give them an up or down vote. they will vote hip down because the republicans are in charge. they fulfilled their constitutional authority, advise and consent. what's going to happen, you have a 4-court and a hillary versus trump. andy is getting excited. >> i'm getting excited because i loathe the electoral college. and this will just prove once and for all that i am correct. kennedy: how stupid it is because you might have a tie. but then you go to an 8-justice supreme court you would have another tie. who breaks the tie. >> joe biden.

>> the president can nominate, you can deny. that's it. why is marco rubio going into all these other things about it. it's a simple process, it's easy to explain. >> the president has about three weeks, 2 1/2 to 3 weeks where this term does not end but the senate and house recess and new senators come in. what if you elected a republican president and a democratic senate, he could squeeze it in three weeks and get that person appointed. kennedy: here is what he told maria bartiromo this morning. >> every type we have a debate the rooms are stacked with

donors and lobbyists. i'm self-funding my campaign other than little contributions from people who love us. kennedy: is the rnc stacking deet baits? >> it does matter if they are. the point is, donald trump if he can't handle a tough audience in a debate hall, how is he going to handle the presidency. he whines and complains about everything. we all knew -- a lot of us knew when he signed the stupid pledge claiming he wasn't going to run third party, everyone knew he was doing it to move the news cycle. i wouldn't be surprised if he decided to do it anyway. if he can't handle a rowdy awedins he has a lot more problems. >> if i were the rnc i would start thinking about running a third-party candidate if trump is the nominee. at a certain point --

>> they call his bluff and say run third party. >> if you say you are going to run third party, run third party. a lot of us said at the time when he signed this pledge, all he had to do is what he's doing now. all he had to do was claim the rnc is not holding up their end. so i don't have to hold up my end. he's a giant man baby as katie said in nicer words. >> if he's a giant man baby, reince priebus is a giant patty hearse dhearst. five seconds later donald trump says i'm not so sure i'm going to abide by this. reince priebus looks like a total joke. he's got to get on it.

if i were reince priebus, i would say i run the republican national committee. you want to run against us, go to town. if you are going to be the nominee or we are not going to help you. he can't do this without the establishment in the general election. kennedy: and he can't do it without the koch brothers. 237 the party panel, nevada is suppose to be hillary clinton's big fire wall.

kennedy: i'm just seething. so is hillary clinton it many well known the hillary clinton campaign looks at nevada as a fire wall for her lackluster candidates i. but there are reports ma gap secretary's -- madame secretaries lead may be in danger. and the delegates aren't bound by the results of their state. and hillary has secured three them, i'm guessing duct tape.

what happens if she losses in nevada? >> she goes on to south carolina. she has to couple with the message. kennedy: i'm a lady and ladies should vote for me. >> you all know me and i have been around for 47,000 years. bernie sanders is on fire. he can explaining why he's running and what the reason to vote for him is. you may disagree with it, but it's a clear message. no wonder people in nevada are saying why are we supposed to support you? kennedy: a lot of people getting excited about bernie sanders. this could be the first breakout state where bern-mentum is making gains. >> internal polling for bernie

sanders shows he's making advances with the hispanic population. labor unions feel like they have been given the shaft by their corporate overlords. that's a real problem with her. kennedy: the cronyism has changed the face of the union and day-to-day members paying those dues, and the political process is not necessarily working out for them. explain how stupid the superdelegates are. >> you have the name democrat nick your party name. and you have people whose sole job is to make sure the will of the people is thwarted if need be. it's the perfect reminder for most people in politics the

party is more important than the people of the country. it's so nakedly obvious it amazes me they are allowed to get away with it. >> they are all elected officials so they will go with the wind. that's what happened in '08. these people are not principled people who will go down with the ship with her. kennedy: they are politicians. >> are you saying politicians are unprincipled? >> i'm loathe to say ... kennedy: bernie sanders will find a way to broaden his message to whoever he has to. and we have yet seen his campaign reach critical mass. the more missteps she has, the more she barks at people and deploys her sleepy husband. people really start to look around. >> i love her sleepy husband

when he's not unhinged. i love bill clinton. he's the best thing he has going for him. kennedy: the panel

kennedy: hello, donald trump kicked his critique of ted cruz in high gear, calling him an unstable liar. he's threatening to sue him over his canadianness. >> ted cruz has a mental problem.

ted cruz is a liar, he has a problem. "special report" host bret baier joins me to sort out the madness and chaos and insults from what's really important to americans. welcome back. reporter: hi, kennedy. kennedy: i'm wondering based on what you have seen, is donald trump employing any different of a strategy than he did in iowa or new hampshire? bret: he's more active. south carolina we've knew would get negative. it got personal very quickly. the ads are bomb barked the airwaves and donald trump is taking to news conferences and multiple press conferences about ted cruz and about george w. bush and jeb bush. and he's effective in one way. and that's getting in the news cycle.

yesterday was all about george w. bush on the campaign trail for jeb bush. what was the question on reporters' minds? what do you have think about what donald trump said about the bush administration going into iraq or keeping us safe after 9/11? he was into the news cycle. he does the same thing with ted cruz who would be well positioned in south carolina one would think that this state would line up for him. now is he unstable, liar. and he effectively changes the narrative. kennedy: ted cruz took the high road. and that seemed to be a good strategy for him. but he shifted into another gear. do you see cruz emerging from this with more points and momentum on his side? what do you see in south carolina as far as polling. bret were a lot of the polling

happened before the debate. there is only a couple polls after the debate. there were a lot of robocalls, a lot of them done on valentine's day, sunday night. you have to take that into consideration. so we have a poll coming in thursday. thursday morning that will be a complete poll. and we are looking forward to seeing those numbers. kennedy: obviously south carolina is such a critical state. and i think it's going to determine so much. but as you mention, let's get back to george w. bush, he emerged on behalf his brother jeb, prompting trump to fire tore pea doze at the entire family. >> when somebody attacks me like jeb, i was nice to him at ronald reagan. but he talked about the tremendous safety. the world trade center came down during the reign of george bush,

right? it came down. >> i thought it was a little strange that a front-running candidate would attack the president of the united states who did keep us safe. while he was building a reality tv show, i'm sure it was a fantastic one, i have never seen it. >> in ply experience the strongest person usually isn't the loudest one in the room. kennedy: oh, mercy. certainly donald trump has got and lot of fodder out of george w. bush on the campaign trail. does it appear jeb bush has gone the as much out of his brother's presence? bret: i don't think so. i think donald trump is walking a tough line. when you have rush limbaugh and mark levin saying he sounds more like codepink. when you have dick cheney going into detail about the iraq war

and 9/11 and defending the bush administration. who knew of it would be here with the 2016 race with a republican candidate. i think it's a dangerous line he walked there. i don't know if jeb bush bringing in his mother in new hampshire has changed his fortunes as far as the polls. kennedy: you know, jeb said that new hampshire, the voters pushed the pause button though donald trump won by 20 points. i know he's hoping this momentum shifts for him. but you talk about donald trump and his double-edged sword, i feel the same which with jeb bush. his brother is likeable and competent. i think in one sentence conservative republicans have missed him because it's been in exile for so long. but the other side of that sword reef minds people of the failures of the second bush administration.

bret: that's a double-edged sword as well. maybe trump is trying to mine that and plate other side. before it's a dangerous game when you do that in republican politics where in south carolina president bush has an 82% popularity rating. the interesting thing like we saw in new hampshire is the battle between jeb bush and marco rubio and john kasich. they are fighting for this other position. if marco rubio beats jeb bush significantly in south carolina it many tough to see the path for jeb bush going forward. kennedy: there are optimists who are part of jeb's cash saying he's got enough money web can go on. but how long can you go on. at what point do you take a good, hard look at the campaign and saying it's not going to work? bret: the super pac has already taken that look.

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kennedy: this is the "topical storm." topic number 1. quinn is a confident sweet 5-year-old girl who is a magnet for the boys. this child is wise beyond her years. listen to her explain her romantic woes to mom. he's romantic but i think i'm too young to have a boyfriend.

but it's like he looks so happy, it's just dish don't want to break his heart. kennedy: like a scene ripped out of every gender aniston romcom. so instead of settling for mr. hot pants quinn is going to pull the trigger and break his heart. let's flash forward 40 years and check in on the soon to be heartbroken suitor. >> by the power veftd in me by the kingdom of got, i send you to the kingdom of hell. topic number two. bird of a feather flock together. and so do sheep. this mesmerizing food and is

from a drone. look how they form patterns like flocks of birds on the ground. absolutely beautiful. but it's not just mindless mammals forming elegant patterns. they are organizing for a purpose. politics, you see? >> what do you want? when do you want it? kennedy: an overwhelmingly white mob all repeating one bad thought over and over again. what does that remind me of. >> let me thank all of you for coming out. people underestimated the kind of interest we had here in amherst. topic number 3.

how far would you go to get a terrific selfie. for these guys pretty close to death. adrenaline junky duo is composes of a ukrainian photographers. they are in the world's 28th tallest building. they are snapping a selfie 1,260 feet above ground level. unfortunately not all stunts in life turn out all right. deadly tragedy struck one of these three men in a fatal accident. if you have children watching you might want them to leave the room now because the foot and we are about to show you is graphic and terrifying. damn you godzilla. this is why we can't have nice

things. topic number 4. justin bieber keeps topping the chart despite good taste and the letters i have been sending the international war crimes tribunal, with you some heavy-hitting actors took the lyrics from "i'm sorry" and infused them with industrial-strength drama. >> is it too late to say i'm sorry? >> is it too late now to say sorry? >> yeah, i know. >> i let you down. >> it's too late to say i'm sorry. >> i'm sorry, yeah. >> yeah, i know i let you down. is it too late to say i'm sorry? kennedy: now let's see the actual music video. i love it so much.

do you know joni loves chachi was the top show in south korea. that's not true. topic 5. you are just about to thank me for being a friend. i know you harbor a deep and naughty fetish for all the golden girls especially betty white and bea arthur. but what missing from your mental trunk is the layer to the theme song. meet finally aaron and you are welcome. ♪ thank you for being a friend >> from the bottom i hear you ♪ ♪ oohh ... no, no, no, no, no

♪ the biggest -- thank you for being my friend ♪ kennedy: you are so welcome. the whole time i thought the braids were real. i can't wait to see what he does with the theme from matlock. ♪ he's all right ♪ he's all right ♪ he's all right if you have weird stories you want to see in the "topical storm." tweet me @kennedynation.

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kennedy: i'm not celebrating anything untoward. i'm celebrating you. hillary's stump speeches are getting weirder. she is in nevada and she told a rally about a political ad from arkansas where a dog was trained to bark every time someone lied. now she would like to sick that dog on republicans. >> we need to get that dog and follow them around and when she they say things like the great depression was caused by too much government action. woof, woof. if hillary were followed around by truth-sniffing dogs, what would her speeches sounds like? >> like her speech was held at the spca.

kennedy: aarf, aarf. >> i hate hillary clinton for doing it. kennedy: this is not an accident. this is a prewritten speech. she wasn't responding to an intrepid questioner. >> the bark is a great analogy. i hope the bark is spontaneous. kennedy: she is the ron burgundy of the trail. >> do you think she was just aarf, aarf. >> i want to know what kind of dog she was imitating. >> sounds like my chihuahua. kennedy: she is going after the latino vote in nevada. >> you don't go to war with a candidate you want, you go to war with a candidate you have.

kennedy: are we making fun of her because of sexism? >> considering how some people feel about her, she's probably barking like a female dog. kennedy: take it out of your speech. sportsports i"sports illustrateg a plus-size model on the cover. are they brave? if they are really brave they would put garera on the cover. >> in the age of us putting people on the cover is a great thing. i don't know that that's bravery. it's great that they have three different covers.

but i would be hoping we are promoting healthy lifestyles. some women are far too skinny. kennedy: how about a nude lena dunham. >> the on thing worse than hillary clinton barking, you found it. suddenly they are doing multiple covers? if you are going to put a plus size model on the cover, only do that. i mean, to me this is just like -- it's having your take and eating it, too. >> which is the great part about being a plus size model. kennedy: so you celebrate her curves? >> i don't know many guys who

like stick thin models. this is appealing to men for the most part. i don't think any of us are running out to buy the "sports illustrated" cover. >> you said any of us and i'm sitting right here. >> you, too, andy. kennedy: do you subscribe? >> they stopped putting it in the brown paper wrapper so i stopped subscribing. kennedy: like the night train. >> i think guys dig this stuff. >> they said the same thing -- most women don't look like that. she is a model. she is beautiful. speak of full figure. taylor swift won album of the year at last night's grammys and used the opportunity to snub kanye west. >> there will be people along the way who will try to undercut

your success or take credit for your accomplishments or your fame. kennedy: but don't let them. she didn't mention him by name but the brushoff was likely in response to one of his lyrics implying he made her famous and could probably seduce her. kanye, were you happy for tay-tay? >> i do. i wonder how she feels today with kanye $53 million in debt supposedly. i like taylor swift. i think she is a good role model for lots of young women. talking about hard work. that's a good thing. kennedy: bryan adams should have won album of the year. ryan adams is a much better arranger.

>> good at her for taking a shot at kanye's dumb lyric that she didn't deserve to win. kennedy: i love it when you talk straight. >> butterfly was such a better album. kennedy: kendrick lamar. what do you think? >> neil foster likes the dave matthews band. i'm a fan. >> which -- kennedy: dave matthews? kennedy: unfortunately we are

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kennedy: there are wake of antonin scalia's death mitch mcconnell says the senate will refuse to confirm president obama's nominee.

joining me is the author of the book why overalled." welcome back, damon. it's showdown of three branches. it seems like there could be long-lasting impacts from justice scalia's death. not just his absence on the court, but the political ramifications of what do you see being the longer term impact? >> scalia was a giant of american law. his influence as a legal conservative his voice on the second and fourth amendment. that's a major loss to the courts, however you felt about him. politically, this is a legal political firestorm. you have the senate republicans saying they are refusing to support barack obama's pick to replace him. obama wants to replace a conservative with a liberal

justice. obama has every reason to want to do that and the republicans have every reason to want to stop him. kennedy: within hours of his passing both sides were jockying for position. so obama could nominate someone and then republicans could just vote of against it. >> the constitution gives the president the authority to nominate officers to high office. but the senate is vested understood the constitution to give advice and consent. it's not a rubber stamp and it can run down the clock. it can drag its feet. we have seen this before. the scope of this fight is sort of unprecedented. but the tactics that will be employed, the delay, don't bring to it a vote fil filibuster, wee seen from it both sides.

we still talk about the supreme court justices being bourkeed. ronald reaganed nominee was thwarted by senate democrats. but obama could use a recess appointment. >> that's possible. the supreme court narrowed the scope of the president's recess appointments. what the court said, that was stephen breyer who wrote that opinion. the senate this session with it says sit unless session and obama said it's not in session when i think it' not in session. his power is a little limited to do that. that would ex fire when the vacancy ends. so when we have a dual live appointed nominated and confirmed justice to replace that recess appointment. kennedy: let's talk about the absence of scalia's influence on the court. he was -- he claimed to be an

originalist. for libertarians who watch this show and for whom liberty is the highest ideal, how important is originalism. >> if you look at the original meaning of the constitution it's a fairly libertarian document in a lot of ways. it places a lot of limits on what the government can do and it recognizes individual rights. those are restrictions on government power meant to protect the individual against the state, against the federal and state governments. a supreme court that enforces those provisions, that's a supreme court libertarians can get behind. kennedy: house the most libertarian justice? >> clarence thomas on property rights, the commerce clause, the 14th amendment. but justice is anthony kennedy has a libertarian mix. he's not libertarian across the board.

he votes for gun rights and gay rights. kennedy: you are one of the first people thought about when i heard of justice scalia. the eagles of death metal are back in pair race. their lead singer has an opinion

kennedy: the california band eagles of death band was thrust into the spotlight when people at their concert were murdered. you would think they would take some time off. but not so when the front man is jesse hughes.

he trowrnd paris and talked about gun control in the wake of such senseless death. >> i think it upon way my mind mind has been changed is that maybe until nobody has guns, everybody has to have them. i don't want to see anything like this happen again. i want everyone to have the best chance to live. i saw people die that maybe could have lived. i don't know, but i wish i knew for sure if they could have had a better chance. kennedy: that takes king size courage to come out and talk like that. in spite of paris' hash and sense list gun bans, the region is silly with bea weapons. god bless jesse for standing up for his convictions that he's all too qualified to discuss.

tomorrow night jedediah and judge napolitano joins me on what should than with the supreme courtnnouncer: the follg program is a paid advertisement for the dashcam pro, brought to you by inventel products, llc. yep, they're out there, driving recklessly, causing accidents, and driving up your insurance rates. now protect yourself and capture it all in full high-definition video with dashcam pro, your personal portable security camera. today, we're going to hear from people who have been in accidents and used the dashcam pro to prove their case. learn from essex county sergeant arnold bernard, a law-enforcement expert, to hear the secret to protecting yourself from tickets and lawsuits. you will find out why he calls the dashcam pro the most significant advancement in dash-cam technology and why everyone should own one. we're also going to visit a car show to check out some really cool rides and discover how their owners protect their cars