kennedy: thank you for watching the best however of your day at a crazy time. tomorrow we are back at 8 p.m. eastern with guy benson, mike baker and chris stirewalt. and you, of course. find me at kennedy nation, twitter and instagram. good-byement. ♪ [♪] neil: we are an hour away from finding out who the president is going to pick to succeed justice kennedy on the supreme court. we are told there are four individuals on that list. three men, one woman. all with intellectual ties to the constitution. a lot of people are reading palace intrigue into where certain justices were at the time and who was with them. what they were doing, who was

talking to them. is there anyone not in the nation's capital of this group? in an hour it will and moot point. we'll know the president's pick and he'll announce it before flying off to europe for the nato summit where he has lots of hand wringing to do with those who are not opening up their hands and wallets to paying for defense in europe. of course, the big meeting with vladimir putin. edward lawrence will set the table for us at the white house. >> a very busy hour, hour and a half ahead of us. the president we are told made his selection this afternoon. he's just going to tell us about it in an hour. four names have listen to the top. one of those names is rising higher than the others. judge brett kavanaugh had a case in front of the d.c. circuit court today. it was a 15-year-long case he

had been the lead counsel on. that court issued a ruling. that's unusual for that court to issue a ruling on a monday. this case would clear his dock tote go forward. other names. raymond kethledge, former check for justice kennedy. judge hardman who is a friend of presidenpresident trump's siste. he was a taxi cab driver to work his way through college. amy coney barrett. there are sightings offer in indiana and possibly at home right now, leading some to believe she may not be on the list. regardless of what happens, democrats say they will pick any of the picks, any of the nominees. democrats say they are concerned whoever it is will overturn roe versus wade and swing the court in a right ward direction.

>> our colleagues pledged to stop the nominee at all costs is not encouraging to say the least. but i assure you we'll not back down from the fight and we'll see president trump's nominee confirmed on a timely basis consistent with previous nominees. reporter: the president is having dinner. he invited a number of democrats to have dinner with him. senators joe manchin, joe donnelly, doug jones and dianne feinstein. feinstein is the ranking men of the judiciary committee. ed the president may need a few democratic votes. democrats all declined the invitation in were two republicans the president invited out to dinner, susan collins from maine and lisa murkowski. those are the two republicans

they worry may defect to the other side. neil: to lou dobbs on the confirmation fight. i was catching your show earlier. without even a name of a judge, democrats have lined up against whoever the president is going to pick it's safe to say barring some of those senators from states the president won very big and are up for reelection themselves. it will be slim pickings among democrats. >> i think you are exactly right. the president is keenly aware of that. that made up some of the motivation for who was inviting to dinner this evening and perhaps resistance, i guess is what they would call that. i think it's going to be the big story. it was almost universal support for the names that were

proffered by the heritage foundation as well as the others who put forward the names. the federalist society, all of them western in point of fact applaud. now for this wholesale decision to fight and obstruct as the president puts it his nominees. it's remarkable. i think the dems have put themselves in a horrible position going into the mid terms. there is no talk of the blue wave. this will be an important process that will unfold before the american people irrespective of the president's choice. i think it will further cement the president's strong role in the outcome of the mid-terms which i think will reverse what appears now whole through the

mid-terms, that is, the president's popularity and his strength on the economy in particular. i think the dems will go down to not only defeat, but a massive defeat come november. neil: let's talk about a couple these judges who were mentioned. brett kavanaugh's name emerged. he has the longest written record of decisions and opinions and dissents that could work for you than against you. some say's more of a procedurallist than a true conservative. but his closeness to president bush, the last president bush. the bush stamp on three of the four names, thomas hardiman, raymond kethledge and judge kavanaugh. what do you make of that and that this could be a sign that this president isn't so fixated

on family ties or bush ties. lou: none of the bushes were conservatives. that was a fiction that was manufactured largely by their campaign apparatus. and the burden of having served as the vice president under ronald reagan, he got man tell. but george h.w. bush was in no way a conservative of any time, nor in my opinion was george w. bush. neil: i was talking about the bad blood prepare them. i'm wondering if the president did go with kavanaugh, that's interesting. lou: it's interesting. but it's important to remember, this is a highly intelligent president who has demonstrated his adetroitness at shooting a nominee for the supreme court --

his adroitness in choosing a nominee for the supreme court. and the bush thing is overbaked by half. the president will be discerning and he'll make a decision based on his requisites for the court. and it will be his man or woman who will in point of fact who will take that seat. neil: form justice department attorney and law clerk to justice clarence thomas. this written record you hear so much about, how important that is because it prevents choosing a david souter, a big mistake even george bush senior admitted he made by choosing somebody who he thought was a conservative and ended up being anything but. now they rigorously go through the opinions and dissents and

written record that would be more reliable than a few speeches or comments to senators. what do you think? >> i think that is the most of important part of reviewing a nominee is looking at the written record. i think some of the cases you were just mentioning that were mistakes of the past. even a kennedy from a conservative perspective is people were swayed by interviews and recommendations from friends. i think the best thing you can use to predict whether someone will be able to handle the pressure of watched and reach the right outcomes, to retain fidelity to the constitution, is there written opinions or written law view articles. neil: justice roberts, you could argue that would not have been a judge who would have given the green light to obamacare.

on procedural, technical grounds, he would not have been the person at least from the hearings and the opinions that would have telegraphed that. i guess i'm asking how sure can we be one way or the other wet were you have the live or written opinions or dissents or not. >> that's a great question, neil. chief justice roberts had only been on the lower court a short period of time when he was elevated to be chief justice. the same court brett kavanaugh is on. chief justice roberts was only there a year or two. i think roberts is a good example of what you were worried about. he had a reputation in washington for being a conservative republican. but when you look at the records, speeches, articles and opinions, he did turn out to be a procedurallist and not really committed to the original

understanding of the constitution which is what trump says he's looking for. neil: weiss things have always gotten to be divisive affairs. i wonder how this will go. democrats have come out against whoever the president will choose tonight. it's not just a swing vote, it's a conservative vote. it changes the complexion and tenor of the court for decades. how important will it be, and do any of these four candidates, we are only going based on what we assume to be the africa these four, offer maybe some surprises. >> that's very interesting to put it that way. neil, let me draw on my experience when i was general counsel in used to be a extra dmights senate of seeking consensus and working together. as you probably know, majority leader reid blew that up by

getting rid of the filibuster for supreme court judges. the democrats are going to reap what they have sown. neil: incredible irony to that. they will rue that day for a long time. >> what you are going to see i think in the senate, you will see the democrats will go to the mat. the left wing of their party is putting enormous pressure on them. this person will create the first five justice conservative majority in my lifetime and probably -- neil: when you say they will go to the mat. i didn't mean to jump own. but to what end? obviously it's a close senate right now, 50-49. one or two republicans peel off, the president needs to get democratic votes, he can still get that. but it will be an uphill battle.

but in the mid terms conceivably republicans could build their march stricken the senate. so aren't they just fighting the inevitable? >> i think what you are seeing is a democratic party's governing philosophy to push through a lot of law, particularly overregulating business and the private sector. so it's not just roe versus wade. it's not just gay marriage. creating this five-justice majority that won't allow them to run wild, i think they will go to the mats not just to promote what we think of progressive values, but to protect their whole way of governing. they ask try to shut down the senate. they could try to block all spend and nominations. neil: that would surely

boomerang on them. >> i would hope so. i think it's a good precedent for the senate whether it's up or down to move expeditiously. i think the democrats, though, this is their last chance to stop a conservative court for many years. neil: i am curious. democrats will never get back in charge, they would be pushing an attack the court mentality. maybe if they had the run of the table or control of the white house or one of the branches, particularly the senate. add more supreme court justices so it could never be overturned. have you heard that? >> i have seen mentions of it. that's really silly. think about it like playing tit for tat. they could do that. the next time the republicans get in they could get rid of those judges and expand the

court and soon we'll have 100 justices on the supreme court or like china, 300 justices on the supreme court. which is political. i don't think some democrats would mind. they have been behind an effort to make the courts represent political views rather than an approach towards constitutional law. neil: john, thank you very much. i appreciate it. this all about the legacy of this president it's a little more than a year and a half. he could set the tone on the supreme court that will establish a legacy that could run into the decades.

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neil: this will be one nasty and pricey battle to decide who is going to replace justice kennedy on the supreme court. karl, your connection and fondness for brett kavanaugh, one of the names mentioned tonight, sits on the district of columbia district court of

appeals. closely aligned with president bush, and i'm wondering how he went from not going anywhere because of that connection and indirectly to you to have much under consideration, and what that would say about this process. >> he has a record of 12 years on the d.c. circuit. the second most of important court in america it's a distinguished record in which he has made principled conservative arguments on behalf of upholding the constitution and maintaining the rule of law. those won him acclaim for his intelligence and persons and his thoughtfulness. and many of those opinions have been upheld by the u.s. supreme court. i think one of the reasons donald trump is considering him at the end is the president prizes people who are strongly committed conservatives and can

speak forcefully and thought flip on behalf those positions. that's what brett kavanaugh has been doing for a dozen years. at the white house he had a difficult job. he was called the staff secretary. nobody knows what that joins. every document that go to the president on a policy issue has to pass through the hands of the staff secretary and he has to be the person who asks people tough questions about what they are trying to say in that document and helps edit it. many times i heard people i brett kavanaugh made my arguments better. he has a terrific intellect. there is a reason this guy was at the top of his class at yale law school. neil: they all are. whatever mitch mcconnell thought about all four of the candidates

he said the president should focus on tom hardiman and raymond kethledge, the least possible counter to that. you are never going to get democrats on board. but it might be better with those individuals. >> mitch mcconnell is make an argument that the lower the profile, the better candidate they are. president trump is looking to get the best justice. he understands this will be a terrible fight no matter who nominates. my sense is he's personally concerned with the issue of who is going to make an excellent justice. we saw that with neil gorsuch. he picked somebody he thought was a committed conservative who would be able to serve on the court to mold the opinions of the court it wasn't the easiest fight. there were probably art -- there

were probably others who were easierer, and mire sense is that's what he's doing on this pick. neil: i want to get your take on the wisdom of rushing this. you could look at how things are going in november. that republicans pick up seats in the senate. this wheeling and dealing to win over a couple of democrats in case you lose a couple of republicans might be a moot point. what do you make of that? >> that's a political argument. a better way to look at this is justice kennedy tendered his resignation as the head of the supreme court session. they will begin to meet again in october. it would be good if we entered the next judicial season if we don't end up with 4-4 decisions. better to have 9 justices and

the court is functioning. are we going to get a better pick from the president with 52 or 53 presidents? no. will we diminish opposition? no. better to go ahead and get it done. he's given a lot of thought to this clearly. neil: i'm thinking for of what reason, there are controversies that came up in the process. that if it got bumped, that might not -- way it's been portrayed is it has been disastrous. but it might work in getting the votes favor. >> better to take a bird in the hand than two in the bush. neil: that bush was not a reference to president bush. >> no, no, that's right. neil: the read right now on the

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neil: we are about a half-hour away from the president of the united states make the announcement of who this supreme court pick will be. everybody has been scrutinizing

and following all the judges on the list, whether there are any secret service or other folks with them that appear very serious. it's hard to believe the significance of that. we know from karl rove's argument that sooner is better than later for republicans who see a packed october agenda coming up. we want that's new justice to be there for that moment. adam weiss, it would be a busy docket, wouldn't it? >> it would be. the court agreed to start taking cases including double jeopardy which could implicate cases about pardons. i thought the same during the garland nomination. but i think it would be good to get the president's nominee on the court for the sake of having another good judge on the court.

neil: history is such that usually you get one sure-fire pick out of the president for supreme court justices, it's remarkable, to get two back to back is historic. ronald reagan and george bush senior found out it doesn't always and out the way you a hope. this would be a president defying history if he has back to back choices. >> that's true. the two seeming frontrunners, judge calf now * and judge hardiman. both are -- judge kavanaugh and judge hardiman. if you are looking for back-to-back cold picks then kavanaugh is probably the safer choice because he has a longer record on the d.c. circuit on constitutional and regulatory

cases. he's probably the leading intellectual leader of his generation of judges. his record of opinions on structural constitutional questions and high-profile regulatory cases. neil: with that ample 14-year plus written record of opinions and dissents comes some baggage that you get. in thites of the bead hold -- in the eyes of the beholder. he worked with eric holder and helped check judicial nominees for their commitment to a conservative legal agenda. his ties to george w. bush and his ties to the ken starr opinion. i have read some of this opinions. they are so clearly expressed. it could also work against him, right? >> that's true.

having a paper trail means having more targets for your critics. but if the goal is to pick the best possible judge. judge hardiman is impressive in his own way. judge cavanaugh's long paper trail is a plus, not a minus. if this requires more time and effort for senate staff and senators to produce the record and go through it, that's work worth doing. neil: there are a lot of people who have called in, that he's more of a proceduralist, that his opposition to key healthcare law issues had to do on procedural matters than broad legal arguments. i don't know if that's true. but he's such a fine-tuned technician that he'll argue on

those grounds. some conservatives claimed that showed a lack of fire for conservative causes. what do you make of that? >> i don't know if i would call it a proceduralist. of all of his opinions, the one that brought the most of criticism from conservatives is individual mandate challenges. where he says the case wasn't ripe for the court because of its procedure in a tax context. neil: he was right at the time. >> in his broader body of cases on the separation of powers and agency structure and the deference courts give to agencies, he's been good on these substantive questions. i would call him a accept raiption of powers guy. -- a separation of powers guy. neil: thank you very much, adam white. there are some protests on the

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sorry, are you gonna... (harmonica interrupts) everytime. geico. 15 minutes could save you 15% or more on car insurance. neil: 20 minutes away of finding out who will be the next supreme court pick. these protesters are in no mood to hear. let's listen to a little bit of what they are saying. they are not going to be in sync together. i can't understand what they are saying. but protect roe versus wade is one of the things i heard earlier on. one guy ran past with a giant bull's horn. so we'll see. this is washington. this is a free country. people are aloud to express

their client grievances. the democratic congressman with missouri, emanuel cleaver. i know this is a senate issue, congressman. but many of your democratic colleagues are not keen on of any these choices the president whittled his down to. what about you? >> you are kidding. you are kidding. actually, i will pay more attention to the names that have surfaced the past few days. but the president is very likely going to get whomever he chooses. the vote is close in the senate, but if republicans stay together and i really don't see a way in which the president's selection will not be chosen. having said that, i think we made a terrible mistake in what we felt about our children. that is the continuous tit for

tat is going to do us in. i think what senator mcconnell did in terms of holding back on a hearing is going to be practiced by some democrats sometime down in the future in a similar situation. neil: you are talking. obama's choice merrick garland. >> yes. neil: harry reid could be blamed as well for the whole filibuster thing. now we are down to a simple majority deciding these things. you are quite right, the die has been cast. some of your colleagues have talked about delay delay delay. do anything you can to delight heck out of this. how do you feel about that? >> i think the senate has arcane rules in the first place. i think the founders made a

mistake when they created the senate. i think most of democratic and republican house members would eliminate it. but realizing that's not going to happen, i think there is just not any way in which i can see us stopping this. delays will probably give some feel-good-' moments to members of the senate and democratic party. but i think in the end, the president will have his way on this supreme court justice. neil: do you think democrats, a good many risk, you know, some call it trump derangement syndrome, their anger, hostilities they have, that's it actually gets in the way of them making the electoral advantages they probably could if they would calm the heck down? what do you think?

>> i have said behind closed doors to my colleagues and there are hundreds who would confirm it that going out and simply being anti-trump will not win. i think we have got to be for something and not against somebody. and so i think that donald trump to be straight and clear, he's easy to be against. he said some things along racial lines that offend me. so i have to push myself not to get up into wake up in the morning thinking negatively about donald trump but thinking positively about this nation and what we have to to do in order to close the divide that has occurred, not just over the trump period but the last few years. i think we have been moving further and further apart. i think just trump trump trump is evil evil evil is not going to win the house back.

we have got to have a program and a plan on what we are going to do and lay it out clearly and articulately to the american public. that's what will win. neil: what i always enjoyed about you, congressman, the minister in you and your training. you are a calm human being. but at least you are with me and i think that's a great quality. >> i come from a family where we have two very well known black and%, one is dead and one is in exile. they played a role in american history. i do think, however, we need to have people ought to protest, it's a democratic society. but i think that we make progress when we are able to sit down at the table and whatever the people did 25 years ago in the house, they are told they

will get cigars and whiskey and sit around and solve a lot of the problems. i don't do cigars or the whiskey. but if that's what it takes, i will withstand the smoke. neil: in my family we extended it to italian cold cuts. congressman, it's always good to have you. i appreciate you taking the time. neil: congressman emanuel cleaver. it is possible for both sides to talk to each other. we are awaiting the president to come up to the fedup and announce his pick for the supreme court. [music playing] (vo) from the beginning, wells fargo has supported community organizations like united way, non-profits like the american red cross, and our nation's veterans. we knew helping our communities was important then. and we know it's even more important today. so we're stepping up to volunteer more

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neil: andrew napolitano, the next supreme court justice. we are waiting to hear from the president of the united states. the greatest legal mind i know, bar none. the judge is here. >> would you share that with the president, please? neil: what do you think? >> i was involved in a lot of the cross-play over the weekend.

meaning emails. during the course of that, i was privileged to be asked my view of the finalists, and i shared that with him. i shared it with the person who asked me and i believe it went to him. from all of that i concluded when i went to bed last night, this is 24 hours ago, that the president was more concerned -- was very concerned with confirm built and would probably lean towards judge hardiman or judge kethledge because they are not the lightning rods judge barrett or kavanaugh are. neil: kavanaugh, there is a long written history. >> it's so long there is something in there for everybody to like and somebody for everybody to dislike. there is sordid stuff involving hillary clinton which nobody

wants to get into and the body of vince foster. neil: do you read the tea leaves he was spot by car with secret service agents? we overanalyzed this. >> i love our colleagues from d.c. they can find the finest minutia and jump on it. they know more about the d.c. minutia than the rest of us. judge hardiman, why would the president put him on his list a week ago only to leave him standing at the altar again? kneel are's a friend of the president's sister. >> you think the president has a strong personality? she is a tigress. she is now retired from the

bench. she sat with judge hardiman for many years. they sit together in philadelphia. neil: it's a small circle of judges in any court where you knee know each other and know their thinking. of these four, they are all fine legal minds. that's without question. they all passed the conservative test. but mitch mcconnell said, try not to create agitation, go for two people he said to your point, raymond kethledge or john hardiman as the least likely to create waves. >> i believe judge kavanaugh will be a lightning rod on abortion and other things with some incoming fire from

conservatives who believe he was insufficiently strong on the affordable care act and other issues. because he has this long paper trail. kneel require was a tech kealt was looking at. >> judges write opinions based on the procedural case before them. neil: kethledge was someone rrp mitch mcconnell recommended, what would be the appeal of kethledge? he's a twin of gorsuch. they think alike. they are philosophers as well as legal scholars. neil: can you hang out with us for a while? >> i think i am with you for a while. neil: you are seeing mitch mcconnell talking to chuck grass are you and the very much. have we ever had presidents -- this president did with neil

gorsuch. >> this president is a showman. usually the name is put out in a press release. neil: that would be too easy. >> we are going to hear a speech about originalism. it's the idea that the constitution today should be interpreted as it was understood as it was written in 1789. neil: they were in wigs with white powder. >> they wrote it in secret. neil: we'll have more waiting for the president of the united states. ♪ ooh, heaven is a place on earth ♪ uhp. i didn't believe it. again. ♪ ooh, baby, do you know what that's worth? ♪ i want to believe it. [ claps hands ] ♪ ooh i'm not hearing the confidence. okay, hold the name your price tool. power of options based on your budget! and! ♪ we'll make heaven a place on earth ♪

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>> this is fox business coverage of president trump's supreme court announcement. here is neil cavuto. neil: moments away from the president of the united states indicating his pick for the supreme court. a lot of rumor mongering going on, so i'll just pass on what people see. some members of brett kavanaugh's family seen at the white house, there's no way to prove that. other people were finding it curious that he's in the d.c. area. ofof course, he works at the d.. court of appeals, and secret service agents seen with him. of course, in a couple of minutes we'll know. judge andrew napolitano with us right now. judge, written records are one thing, you don't want to leave people guessing or coming out the candidate controversial.

amy coney barrett is the only one we know of who's still back in indiana. what are we to make of that? >> well, we know it's not going to be her. judge hardiman is in washington d.c. i don't know where judge kethledge -- neil: by the way, ap is reporting it's brett9 kavanaugh. >> okay. well, i wouldn't be surprised. he clerked for justice kennedy, and he has a long track record some of which appeals to conservatives, some of which doesn't, some of which is misunderstood. he does -- neil: it doesn't surprise you he's closest to president bush, now three of the four justices were originally are appointed to the position by president bush and given the bad blood between donald trump and the bush family, we might be overreading into that, but what do you make of that. >> i make of it that donald trump is willing to overlook any bad blood he has with the bush family to put the perp on the court that he thinks -- the person on the court that he thinks this is right for the job. but this is a major battle

brewing. neil: why do you say that again? >> because he is a lightning rod on abortion -- neil: but he's not as overtly catholic or as in your face with that as judge barrett, right? >> very few people are, that's right. and i'm a fan of hers. neil: absolutely. >> we studied at the same law school, under the same constitutional law guru. but you're right, this is not that overt a catholic, but there's no question that he is pro-life and is reputed to have been one of the instruments to dismantle roe v. wade. [applause] neil: all right, we see melania making her way into what looks like the east room here where the president will make this announcement. doing it this way, what do you think? >> well, this is donald trump's way of building support and pleasing the base. and again, as i said before the break, when you hear him talk about originalism and you hear judge kavanaugh -- assuming it's him talking about originalism -- this will resonate with