your thoughts tonight? >> i guess i'm not so surprised the 9th circuit math made this decision. someone born and raised on the west coast, i'm used to liberal decisions coming from this court. i think the president made it clear he plans to take it to the supreme court it sounds like he's intend to go fight the decision on continuing with his plan and with this travel ban. i think it will be an interesting next couple weeks to see which court they decide to take it to. and if they are going to try to appeal both elements of this decision or if they will just go after the more extreme vetting part of it. lou: leftist obstructionism it's coming from the senate. we are watching it every day. ed rollins pointing out that sessions and tillerson and devos all had the highest numbers of opposing votes, if you will, of

any nominees in presidential history. >> chuck schumer talking about being sick to his stomach over jeff sessions. the obstructionism. lou: do you think he really is -- he looks like he's in political theater, he doesn't mean any word that he utters. >> it's all they have got in their arsenal. they don't have the votes and they don't have the supreme court. the on thing that would have been shocking is the 9th circuit, the notoriously left-leaning court would have support the constitutional authority the president has. this is business as usual on temporary restraining orders from this 9th circuit court. what people ought to stop forgetting is how this president continues to prevail. he will out last them and out will them.

i don't know why people are foregetting the complexion of the supreme court in 6 to 8 weeks. take a chill pill and realize you will prevail. lou: you are quoting rahm emanuel these days? >> i didn't mean that. lou: this obstructionism that goes on, and i think mike is exactly right. this president and the great team he put together in the white house are going to prevail. but the frustration level has to be extraordinary because in every respect, he has the will of the people to represent. he knows that he has ultimately the votes in the senate, whether it be confirmation or ultimately legislation along with the house. ways your sense right now of whether the democrats will no matter how feut futile, will continue to be o to be obstreped

banal. >> the democratic party is in sham bells. they are not sure how to effectively oppose the president. the media is having fainting spells five, six times every day. that's all we are seeing every day. every single thing the president does they have a fainting spell and come out with guns blazing, instead of pick and choosing and which aren't. >> if puck picture the media losing its mind over kellyanne recommending people buy ivanka's products. think about this. >> some of the republicans led by coma get in the house going after ethics considerations. are you out of your minds over there?

they are just such little darlings. >> it many petty and nasty. >> not all the daffodils are in the democratic party. candidate trump. it's important to watch their track record. lou: mccain today, the president went after him again. mccain did misspeak without question on the raid in which the u.s. navy seal was killed. your reaction, bre, to the harsh tone the president brought to the disagreement with senator mccain. >> i think it objective of the ladies classified, i think you or i will not know if the raid was a success or ultimately fit was a failure. that's something the president

knows as the commander-in-chief. lou: his point is mccain shouldn't have opened his mouth about it, and i don't think there is much argument that it was a poor decision on the part of mccain. >> i think he did maybe step into hot water by talking about that. however, in response to what the president had to say about it. at the end of the day, john mccain is a war hero. we should be careful in how we talk about it. >> we all honor senator mccain's service, but it doesn't mean he's treated with kid gloves or can't disagree with him. lou: dishonor the service of another who served the country and made the ultimate sacrifice, i don't think there is any arguing with the president on that. the senator was wrong. the tone is, you know, pure trump. and that's one of the reasons we

put him there. >> we have. >> commander in chief who doesn't want to call a mission a hero, even when a hero dies for his country. lou: it's a tough time and people will have to get used to one thing. the president of the united states is going to prevail on this. and he's insisting on plain spokenness. i think he deserves great credit for that. neil gorsuch, it's a federalist. the hair phage foundation vet this fellow. this man looks terrific on paper. he's making comments that he's disheartened at the criticism criticizing our president, his president who nominated him to the highest court in the land. what is wrong with him? >> as you have say, it does seem kinds of odd that a supreme

court nominee would go around and almost kinds of talk about him behind his back. that seems kinds of odd. i'm wondering that maybe he's talking in this way in cahoots with the white house. as we mentioned earlier. the democrats have been crazy in opposing every single person the president has nominated. even uncontroversial figures like betsy devos. lou: this is as sorry currency of disrespect for the president. it's a sorry currency to win nomination. i think the standard should be much higher than that. i hope what you and others on this broadcast suggested simply isn't the case. this man has enough character and intellect and talent to stand on his own. >> you are completely right. but what i was trying to say is

i'm wonder if the directive came from the white house. >> i like the argument that's make that perhaps this is a way to have day slight between the supreme court nominee and the trump administration which will make his confirmation process even all the easier. who knows. thank you all. we appreciate it. thank you both. up next, the trump administration confident it will prevail in court after today sphms reversal from the 9th circuit court. >> this ruling does not affect the merits it's an interim ruling and we are fully confident that now we'll get our day in court and have an opportunity to argue this on the merits that we'll prevail. lou: we'll be right back.

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both parties to back his supreme court nominee neil gorsuch. but republicans only hold 52 seats. they will need 8 democrats to join them to override a filibuster. >> a lot of people are liking it very much on the other side. i think that because of politics they are not going to vote for him. that's a shame because that's not being honest it's one of the reasons our country is in stagnation in so many different forms and so many different ways. we'll see what happens. i think he's doing very well. lou: former senator kelly ayotte who lost her seat in part because she was a never trumper is ironically helping gorsuch as he speaks with senators, trying to clarify controversial comments senator blumenthal claims gorsuch made to him.

judge gorsuch made it clear in all of his discussions with senators that he could not comment on any specific cases and political matters. >> the president is going to speak his mind. it goes back to thomas jefferson. presidents have commented on judicial nominees. the idea of one branch talking about or commenting on another branch is as old as our rub. as -- as our republic. i find it interesting when president trump criticized the supreme court for citizens united in the state of the union there will be wasn't concern about that. lou: . * established three department of justice task forces to fight

the mexican drug cartels, reduce violent crime in this country and reduce attacks against our law enforcement officers.

lou: 9 out of 13 appellate courts are liberal and they act like it. >> we have a judicial emergency here. first all on the issue of this e.u. donald trump has the moral case, the clear legal case and the politics of this will work out for the republicans as well. but that being the issue that under lines it is our security and our very lives. but when it comes to the question how republicans handle judges and democrats handle judges including the supreme court. we have a woeful record it's time to reverse that. and with the nomination of neil gorsuch and several openings on the supreme court. lou: neil gorsuch and the irony of it happening in this 24-hour

period. saying our judiciary should be beyond scrutiny and public criticism, that to me was a statement by a -- i should be kinder -- it was not a wise statement or one that makes any sense at all objectively coming from a man with a ph.d from oxford and want to colombia and harvard. what could he possibly have been thinking to say that, gayle? >> clearly that's not the case. because otherwise we wouldn't see people going to protest in front of the supreme court. we talked talked about president obama lecturing the supreme court. in the runup to the first obamacare decision president obama lectured the supreme court justice s from the rose garden at the white house.

clearly the supreme court is subject to political pressure. that should not be the case. but it's become more and more mitt sized as we have gotten away from the black letter of the constitution and the supreme court justices on the left decided to invent a panoply of new rights the founders never envisioned. lou: let's turn to this confirmation process. he point out this evening that three of the president's nominees, tillerson, devos, and sessions all have the greatest opposition of any presidential nominee in presidential history. is that in itself enough to say to mitch mcconnell the majority leader of the senate it's time to go nuclear and work on the simple majority for supreme court nominees, for

confirmation, for everything. move ahead because the democrats are intractable. they are unreasonable. and absolutely fervently committed to destruction of not on this administration, but to -- in the instance of the 9th circuit court of appeal, an ideological conflict that they give a damn about national security. >> i think mitch mcconnell and the republican nors will do he legal thing they can to get neil gorsuch confirmed. they don't want to act like they can't get the votes beforehand. there has never been a successful aggressive filibuster against a supreme court nominee. if the democrats decide to do this, it's war. howie: it's war now. and you are going to have greater casualties. i'm very distressed the way this

nominee to the supreme court neil gorsuch has conducted himself and the classless remarks he made about the president. but i think that he deserves confirmation. and to lose him would be i think disastrous. >> the problem with his comments if he made them -- >> if he made them. lou: they have been corroborated by kelly ayotte. the other people from the white house, they have been confirmed by senator ben sasse. it's not a one source. i would not be this far out on this particular platform if it were not corroborated. this is not a one-source issue. >>ssuming he said it, the problem is not that it deputy straight a lack of loyalty to president trump or a lack of

gratitude for the nomination. the problem is this is what republicans always fall into, thinking if they curry favor with the democrats within that that will appease the left. it never ever works. and this is one more example. >> i agree with gayle. lou: how about me, do you agree with me? >> we need kowrnous people on the nation's coast last resort because every big issue will go there. the court intervenes on everything. lou: matt, thanks for being with us. on wall street a record-breaking day for stocks. all that concern about trump policy and economic policy prescriptions. we gained over $2.2 trisince hen

since he was elected. all indexes at new all-time highs. volume on the big board 3.3 billion shares. shares of twitter down after they posted a net loss in the third quarter. will the president appeal to the supreme court? a live report coming up from the highest court. some of the country's best legal mind join me here shortly. stay with us as we assess all of the breaking developments. our special coverage of the 9th circuit court of appeals, its ruling and the trump administration's response continues. dear predictable,

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lou: just over two hour ago the 9th circuit court in san francisco ruled against president trump's executive order calling for extreme vetting. >> a lot of legal expert believe because of the issues involved in this case that eventually the supreme court will hear it. however, the issue tonight and

going forward from the trump administration is whether it wants to file for an emergency appeal to either stay the stay which is -- or to overrule the stay to keep this injunction of the president's executive order from going forward. the administration says it is looking at you will it legal options and reviewing the decision. but as of right now it's point towing a tweet from the president that you probably already reported on saying "see if you court. this is an issue of national security." if the administration files an emergency appeal it will go to streamp supreme court justice anthony kennedy who has jurisdiction over the 9th circuit within the state out west. he could ignore the appeal and let the appellate court decision stay in place or he could decide

personally if he want to overright and let the legal proceedings continue. but he can also ask this fellow justices on this court because of the important issues involved whether they want to hear this case, in which case you are back to the question of the divided court, and if the divided court were to split on ideological lines, it would be just the appellate court decision would behest in place. so try to play all the options out here. that's what the legal scenario looks like from the supreme court's point of view. lou: there are a few breaks in the path here for whatever does transpire in which if that's what the court does, stay split along ideological lines, the 9th court decision stand which

supports the district court judge in the western district of washington. and not a wonderful contemplation for this president who is trying to pursue this zuttive order and implement it in the interest of national security. peter, thank you so much for being with us here. peter barnes, keep us apprised as always. courts on the west coast are proving to be troublesome for the trump administration. dan springer is in seattle where judge james robart first blocked the president's executive order. reporter: following up on peter's report on what the president tweeted about, we'll see if you court. the democratic governor of washington state said we have seen if you court and we have beaten you. his attorney general says we have seen you in court twice and we are 2-2.

they are claiming complete victory. that they have taken him on twice. and of the four judges they have seen. two were appointed by republican presidents. but we have done some research on the 9th circuit court of appeal is heavily stacked with appointees of the jimmy carter presidency and we did a little research. in 2012, an especially bad year for that court. of the cases reviewed by the supreme court. 86% of the 9th circuit court of appeal case were overturned. they don't review all of the ruling from the 9th. but of those they decided to take a look at, 86% were overturned. so this is by no means a final victory for washington and their lawyers. they believe they will win at the supreme court and they say they will take it all the way up

there if they need to. lou: that victory could cost american lives. so i hope they are not clicking their heels too loudly. up next, president trump insisted his executive order is legal. >> here it is. people coming in. suspend. the entry of all aliens. right? it's not like -- again, a bad high school student would understand this. lou: attorneys david ritman and john hoffman join me next. d pay. you've earned your medicare. it was a deal that was made long ago, and aarp believes it should be honored. thankfully, president trump does too.

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lou: joining me now, a senior fellow for the defense of democracies. he served for president reagan and george w. bush. and adjunct scholar at the cato institute. thank you both for being with us. david, thank you for your return return. josh, let's get a sentence where we are headed. we have 70% of the appellate courts that are liberal in large

measure because of the impetus given in the deployment of president obama. in the case of the 9th circuit, it's appalling. they seem to be practicing law from the bench that's wildly left wing and disappointing to just about everybody. >> there is one judge on the 9th sir cut, peter winehart. he often jokes, they can't catch them all. he's quite serious about it. president trump can emergency stay from the supreme court and that's followed by justice kennedy. then he would need five votes to

get a stay of this ruling. then he can file a petition stating this is such an sphornt case the court should hear it right now. but the problem is if he's down to 8 and justice gorsuch will not be on the bench. there is a risk going to the supreme court and losing. it might be better coming back to the court when you have a full bench in stock. lou: do you have you have a sense of what the trump administration might do in that case? >> there are a couple more options. the administration can decide to gain time and allow this to return back to judge robart. not because they will get a good shake from him. then take it up to the supreme court once judge gorsuch has been confirmed. or the administration can with draw this ortdsr -- withdraw thr

and sidestep some of the portions of the decision. i don't know what they are going to do. but i wanted to say this is not about the executive order anymore. this is about a fundamental separation of power. pun presson't judicial authority that frankly strikes not only at president trump and this administration but both political branches. that's enormously dangerous. lou: you say the many no longer simply about the executive order it's also in addition to the aggrandizement of the judiciary, it is also leaving the nation vulnerable to a national security threat as the court has made this ruleing, and that migt

limit, might it not, josh, option david pro poatds which is to wait it out, because american lives quite frankly are at is png. >> one -- are at risk. >> one of the judges said the government provided zero evidence that anyone from these seven countries have perpetrate an attack on the united states. the four suspects when they were arrested. they said unless you can show that someone from these 7 countries actually participated in a terrorist act. lou: that would be effectively saying to all of our intelligence agencies that you have concluded there is a risk of a date certain in a way in which americans will be killed, our property destroyed and a

terrorist attack dismissing it baits hasn't occurred yet. >> that is true. but it's more than bizarre. to inject a note of sanity. the supreme court dealing with foreign policy affairs. it held clearly, the judiciary is incapable and constitutionally precluded from intruding because they have neither the resources north knowledge to engage in threat assessment. so they are not supposed to engage in any threat assessment. >> i'll give you one better. the court toughly said that the obamaed a -- the trump administration can supply classified information to the court. that's what they suggested. lou: given all that's going none

this country, our highly contested and presidential elections. the alienation, the polarization, and now a judiciary that is so politicized that it is frankly rancid with the prospect of partisanship and ideological judgment rather than a judicial system ready to make an honest, open objective decision. it's a terrible thing. >> if this logic was applied before, the decisions of the same nature by the previous five presidents would have been set aside. the fact that we have people who challenged this decision indicates nothing more than rampant use of warfare. lou: thank you for being with

us. up next, president trump vowed to make mexico pay for the border wall. one leftist mexican politician is so outraged about that, he's coming to the united states. i'll take that up next. who invited him? who gave him the visa? what's going on? who else can we bring in? vladimir putin? who knows. if a denture were to be

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lou: elected the presidential hopeful and past candidate will be visiting the united states to talk about president obama's quote poisonous rhetoric. referring his rhetoric as poisonous seems like poisonous rhetoric to me. how about you? two-time presidential runner up. andre lopez claims president trump has shown disrespect for his country. so he's coming to california to talk with illegal immigrants who

have shown less than respect for america and its citizens and its laws. back with me now, veteran of 10 presidential campaigns and republican strategist ed rollins. glad to have you back. obrador. who gave him the advisa? >> he's a two-time loser. that would be the first thing going out on the trump tweet. secondly, what i would do if i was advising the president which i'm not. i think it's important that he bring secretary kelly, the head of homeland security and say you have the responsibility to making sure this vetting, we'll pursue a judicial process here. right now, right now it's your responsibility and the people at homeland security, the largest

agency in government to enforce our border for rules. you know what i want and i want it done. lou: maybe have the four-star general meet obrador at the airport as well. start negotiating that price tag. >> it many good's going to l.a. he can meet with pelosi and jerry brown and the illegals to talk about wait will be like when california is a separate state and nation. lou: it seems to me the president was in good humor. he was controlled. but he's obviously frustrated. but his tone and constraint i thought was commendable. >> he's got real experience now. he has been in the office three weeks. lou: not until tomorrow. do you love the way -- i will

refer to senator schumer as the head clown as the president does out of respect to the president. the head clown, sitting there making all of these ridiculous remarks and claims and going on about his policies. he's been in office three weeks tomorrow. and it just seems like an absurd moment in history for the left to be reacting and overreacting and so simply vile. >> i love schumer saying let's have bipartisanship. who's leading. put ten of your partisans on the line. we would be more willing to listen to those discussions. they are very anti-trump and will be for the rest of his term. lou: ed rollins. up next, president trump accusing the 9th circuit court of playing politics. ruling against his order.

>> it's a political decision. >> you believe the judges -- >> we have a situation where the security of our country is at stake. and it's a very, very serious situation. so we look forward as i just said to see them in court. lou: attorney, form law clerk for justice alito barbara smith joins us next. want to find a ur without getting ripped off. start at the new carfax.com show me used trucks with one owner. pretty cool. [laughs] ah... ahem... show me the carfax. start your used car search at the all-new carfax.com. when aachoo!calls... ...answer it. with zicam cold remedy. it shortens colds, so you get better, faster. colds are gonna call. answer them with zicam! zicam. get your better back. now in great tasting crystals.

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lou: in our online poll last night we asked, do you believe the fate of the nation depends on how quickly president trump can start moving conservative judges into the left-wing judicial system? 91% of you have say yes. joining me now, attorney barbara smith. she served as law clerk to justice samuel alito. i know that you follow the judicial system closely in all respects and the appellate 9th circuit court of appeals. they lived up to their reputation here tonight, don't you think? >> indeed they have. i think there is a lot that's troubling about the merits of the court's opinion. i'm happy to dive into one issue i found troubling. that's the court's analysis on

the government's likelihood of succeeding. but the executive order doesn't apply to lawful permanent residents and the court disregard that crucial fact in its analysis. lou: the ruling itself object its face. these folks along with the district court judge in the western district of the state of washington are making judgments about national security as if they had both the standing and the expertise, and available knowledge of the available evidence about the intent of those who are terrorists. it was really a a striking and peculiar order in that respect as well. you've hit on an important

point. this is a case that involved both issues of security. when it comes to national security and immigration, the constitution is clear those are the provinces of the political branches of congress. we have an example of congress and the president agreeing on what the policy of the nation should be when it comes to the ability to suspend immigration for certain classes of aliens. in my right' probably not the proper rule of the court. lou: the likelihood of success in a court that is ideologically split, what should the president do? >> he has a couple of options. he could seek an knowledge appeal of the decision to the supreme court as you mentioned currently has 8 members. so that might be a tough option. and he could seek enbanc review and hope to get judges with a different view of the law.

or he could say i'm going to aban don't t.r.o. posture of this case and go back to the trial judge and pursue the merits of the claim and see how the rest of the case unfolds. kowrnous as running asoks all a populist and anti-establishment. now confronting the court system which is so rife with bias and ideological preference that frankly i don't know how you can convince any american that they could get a fair trial and be treated equally under the law anywhere in this country. >> i'm certainly not going to impute the motives of federal court judges. lou: you have to practice before them. >> i think reasonable people can

disagree on what the law says. i think it's pretty clear in this area and the 9th circuit got it wrong. lou: it' interesting that these wrong views at least in your opinion and mine all seem to originate in court dominated by liberals and democratically appointed justices and judges. at some point you have to defer it seems to me reasonably to the evidence and the causal relationship between the two, and that's way was referring to when i said partisanship is rife in our court system. >> you are right to highlight the nomination of strict constructionists and constitutionalists to the coast appeals and the supreme court is extremely important. lou: that's it for us tonight. we thank you for being with us in our special coverage of the

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