>> what's up? >> what recourse do you have if leader mcconnell votes a vote on your supreme court nominee? and do you think if you choose someone moderate enough republicans might change course and schedule a vote? and as you consider that choice and who to nominate, what qualities are important to you and is diversity among them? thank you. >> first of all, i want to reiterate, heartfelt condolences to the scalia family. obviously justice scalia and i had different political orientations and probably would have disagreed on the outcome of certain cases. but there is no doubt that he was a giant on the supreme court, helped to shape the legal landscape. he was by all accounts a good friend and loved his family

deeply. and so it is important before we rush into all the politics of this to take stock of somebody who made enormous contributions to the united states. and we are grateful, not only for his service but his family's service. the constitution is pretty clear about what is supposed to happen now. when there is a vacancy on the supreme court, the president of the united states is to nominate someone. the senate is to consider that nomination. and either they disapprove of that nominee or that nominee is elevated to the supreme court. historically, this has not been viewed as a question.

there is no unwritten law that says that it can only be done on off years. that's not in the constitutional text. i'm amused when i hear people who claim to be strict interpreters of the constitution suddenly reading into it. a whole series of provisions that are not there. there is more than enough time for the senate to consider in a thoughtful way the record of a nominee that i present and to make a decision. and with respect to our process, we're going to do the same thing that we did with respect to justice kagan's nomination and justice sotomayor's nomination. someone with an outstanding legal mind, someone who cares deeply about our democracy and cares about rule of law. there's not going to be any particular position on a

particular issue that determines whether or not i nominate them. but i'm going to present somebody who indisputably is qualified for the seat and any fair-minded person, even somebody who disagreed with my politics would say, would serve with honor and integrity on the court. now, part of the problem that we have here is we've almost gotten accustomed to how obstructionist the senate has become when it comes to nominations. i mean, i've got 14 nominations that have been pending that were unanimously approved by the judiciary committee. so they all agreed that they were well qualified for the position. and yet we can't get a vote on those individuals.

so in some ways, this argument is just an extension of what we've seen in the senate generally. and not just on judicial nominees. the basic function of government requires that the president of the united states in his or her duties has a team of people, cabinet secretaries, assistant secretaries that can carry out the basic functions of government. it requires, the constitution requires that we appoint judges so they can carry out their functions as a separate branch of government. and the fact that we've almost grown accustomed to a situation that is almost unprecedented, where every nomination is contested, everything is blocked. regardless of how qualified the

person is. even when there is no ideological objection to them. certainly where there are no disqualifying actions by the nominee that have surfaced. the fact it is that hard, that we're even discussing this is a measure of how unfortunately, the venom and rancor in washington has prevented us from getting basic work done. this would be a good moment for to us rise above that. i understand the stakes. i understand the pressure that republican senators are undoubtedly under. the fact of the matter is that the issue here is that the court is now divided on many issues.

this is a deciding vote and there are a lot of republican senators who are going to be under a lot of pressure from various special interests and constituencies, and many of their voters to not let any nominee go through. no matter who i nominate. but that's not how the system is supposed to work. that's not how our democracy is supposed to work. and i intend to nominate in due time a very well qualified candidate. if we are following basic precedent, then that nominee will be presented before the committees. the vote will be taken and ultimately they'll be confirmed. justice kennedy when he was nominated by ronald reagan and ronald reagan's last year in office, the vote was taken. and there are a whole lot of democrats who i'm sure did not agree with justice kennedy on

his position on a variety of issues. but they did the right thing. they confirmed him. and ifst him, they certainly didn't mount a filibuster to block a vote from even coming up. it's the supreme court. the highest court in the land. it is the one court where we would expect elected officials to rise above their day to day politics. and this will be the opportunity for senators to do their job. your job doesn't stop until you're voted out. or until your term expires. i is that end to do my job and i expect them to do their job as well. all right?

>> following up on that should we interpret your comments that you are likely to clues a moderate nominee? >> no. >> okay. >> i don't know where you found that. you shouldn't assume anything about the qualifications of the nominee other than they'll be well qualified. >> all right. following up, would you consider an appointment if your nominee is not granted a hearing? >> i think we have more than enough time to go through regular order, regular processes. i intend to nominate somebody, to present them to the regular people, to the senate. i expect them to hold hearings. i expect there to be a vote. ? that means no recess. >> lastly, how do you respond to republican criticism that your position is undercut by the fact that you and other members of your administration who are in the senate at the time tried to filibuster judge alito in 2006?

>> you know, the, what? i think what's fair to say is how judicial nominations have evolved over time is not historically the fault of any single party. this is become one more extension of politics. there are times where folks are in the senate and they're thinking, as i just described primarily about, is this going to cause me problems in a primary? is this going to cause me problems with supporters of mine? so people make strategic decisions. i understand that. what is also true is justice alito is on the bench right now. i think that historically if you look at i.

regardless of what votes senators have taken, there has been a basic understanding that the supreme court is different. each caucus may decide who will vote where and what but the, basically you let the vote come up. and you make sure that a well qualified candidate is able to join the bench. even if you don't particularly agree with them. and my understanding is that the same should happen here. now this will be a test. one more test. of whether or not norms, rules, basic fair play can function at all in washington these days. but i do want to point out, this is not just the supreme court. we have consistently seen just a

breakdown in the basic functions of government because the senate will not confirm well qualified nominees, even when they're voted out of committee. which means they're voted by both parties without objection. and we still have problems. because there is a certain mindset that says, we're just going to grind the system down to a halt. if we don't like the president, then we're not going to let him make any appointments. we're going to make it tougher for the administration to do their basic job. we're going to make sure that ambassadors aren't seated, even though these are critical countries that may have an effect on our international relations. we'll make sure the judges aren't confirmed despite justice

roberts himself has pointed out, there are emergencies in courts around the country because there aren't enough judges and there are too many cases and the system is breaking down. so this has become a hasn't and it gets worse and worse each year i haven't spent a huge amount of time talking about it because the american people on average are more wanting to talk about wages and gas prices and issues that touch their day to day lives in a more direct way. so it doesn't get a lot of political attention. but this is the supreme court and it will get some attention. and we have to ask ourselves, are we still able to make this democracy work the way it's supposed to? the way our founders envisioned it. i would challenge anyone who purports to be adhering to the

original intent of the founders, anybody who believes in the constitution, coming up with a plausible rationale as to why they would not even have a hearing for a nominee made in accordance by the president of the united states with a year left practically in office. pretty hard to find that in the constitution. you've gotten four now, jeff. >> thank you, mr. president. two different topics. first on syria, last year when president putin was about to enter into syria, you said he was doing so from a position of weakness and he would only get himself involved in a quagmire there. with aleppo about to fall, president putin is getting one

of his goals, to bolster assad and take out the rebel cls the u.s. is backing. how do you respond to critics who say you have been outfoxed by putin? what is your plan if aleppo does fall? do you plan to step up military action to help the rebels in syria who are key to taking on isis? and secondly, i wanted to ask but 2016 as well. >> that's getting to be a lot of questions. you asked me a big question. how about i just answer that one? >> okay, sure. >> first of all, if you look back at the transcripts, what i said was that russia has been propping up assad this entire time. the fact that putin finally had to send his own troops and his own aircraft and his, and invest this massive military operation

was not a testament to great strength. it was a testament to the weakness of assad's position. if somebody is strong, then you don't have to send in your army to prop up your ally. they have legitimacy in their country and they're able to manage it themselves and then you have good relations with them. you send in your army when the horse you're backing isn't effective. and that's exactly what has happened. now what i said was russia woin volv itself in a quagmire. absolutely it will. if there's anybody who thinks that somehow the fighting ends because russia and the regime has made some initial advances. about three quarters of the country is still under control

of folks other than assad. that's not stopping any time soon. so i say that, by the way, with no pleasure. this is not a contest between me and putin. the question is how can we stop the suffering, stabilize the region, stop this massive out migration of refugees who are having such a terrible time, tend violence, stop the bombing of schools and hospitals, and innocent civilians. stop creating a safe haven for isis. and there is nothing that has happened over the last several weeks that points to those issues being solved. that's what i mean by a quagmire. now, putin may think that he is prepared to invest in a permanent occupation of syria with russian military. that will be pretty costly.

that will be a big piece of business. if you look at the state of the russian economy, that's probably not the best thing for russia. what would be smarter would be for russia to work with the united states and other parties in the international community to try to broker some sort of political transition. now, john kerry, working with his russian counter part, has on paper said that there will be a cessation of hostilities in a few days. this will test whether or not that is possible. it is hard to do because there's been a lot of bloodshed. if russia continue indiscriminate bombing, i think it is fair to say you won't see a take-up of the opposition. and yes, russia is a major

military. obviously, a bunch of rebels are not going to be able to compete with the hardware of the second most powerful military in the world. but that doesn't solve the problem of actually stabilizing syria. and the only way to do that is to bring about some sort of political transition. we will see what happens over the next several days. and we will continue to work with our partners who are focused on defeating isis to also see how we can work together to try to bring about a more lasting political solution than aerial bombardment of schools and hospitals will achieve. but it is hard. i'm under no illusions that this will be easy. a country has been shattered. because assad was willing to

shatter it. and as repeatedly missed opportunity to try to arrive at a political transition, and russia has been party to that entire process. and the real question we should be asking is, what is it that russia thinks it gains if it gets a country that has been completely destroyed? as an ally. that it now has to perpetually spend billions of dollars to prop up. that's not that great a price. unfortunately, the problem is that it has spillover effect that is impacting everybody. that's what we have to focus on. one thing that i do want to add,

this is not distracted us from continuing to focus on isil and we continue to press them hard, both in iraq and syria. that will not stop. and if we can get a political transition in syria, that allows us to coordinate more effectively with not just russia but other countries in the region to focus on the folks who pose the greatest direct threat to the united states. all right? andrew beaty? >> thank you, mr. president. i wanted to ask you first of all whether you think that military intervention will be necessary in libya to dislodge the islamic step? and as an extension of that, do you think that by the end of your presidency, the islamic state will have geographical strongholds throughout the middle east? and i can't resist asking a third, how was the stadium

course? what did you shoot? the last for nongolfers is a reference to pga west. very difficult. my score is classified. with respect to libya, i have been clear from the outside that we will go after isis wherever it appears, the same way that we went after al qaeda wherever they appeared. and the testament to the fact that we are doing that already is that we took out isis, one of isis' most prominent leaders in libya. we will continue to take actions where we've got a clear operation and a clear target in

mind. and we are working with our other coalition partners to make sure that as we see opportunities to prevent isis from digging in in libya, we take them. at the same time, we're working diligently with the united nations to try to get a government in place in libya. and that's been a problem. the other tragedy of libya, libya has a relatively small population and a lot of oil wealth and could be really successful. they are divided by tribal lines and ethnic lines, power plays. there is now i think a recognition on the part of a broad middle among their political leadership that it

makes sense to unify so there is some semblance of a state there. but extremes on either side are making it difficult for that state to co-here. if we can get that done, that would be enormously helpful. our strong preference as has always been the case is to train libyans to fight. the good news in libya is that they don't like outsiders coming in telling them what to do. there's a whole bunch of constituencies who are hardened fighters, and don't ascribe to isis or their perverted ideology but they have to be organized and can't be fighting each other. so that's probably as important as anything that we'll be doing in libya over the coming months.

>> thank you. the democratic race to replace you has gotten pretty heated lately. and you have hillary clinton saying that, at least casting herself as the rightful heir to your legacy and the candidate who will be the keeper of your legacy while also saying that bernie sanders has been disloyal to you. is she right? >> well, you know, that's the great thing about primaries. everybody is trying to differentiate themselves. in fact, bernie and hillary agree on a lot of stuff. and disagree pretty much across the board with everything the republicans stand for. so you know, my hope is that we can let the primary voters and caucusgoers have their say for a while and let's see how this thing plays itself out.

i know hillary better than i know bernie because she served in my administration and she was an outstanding secretary of state. and i suspect that on certain issues, she agrees with me more than bernie does. on the other hand there may be a couple issues where bernie agrees with me more. i don't know. i haven't studied their positions. here's what i have confidence in. democratic voters believe in certain principles. they believe in equal opportunity them believe in making sure that every kid in this country gets a fair shot. they believe in making sure that check growth is broad based and everybody benefits from it. if you work hard, you're not in poverty. they believe in preserving a

strong safety net through programs like social security and medicare. they believe in a foreign policy that is not reckless. that is tough and protects the american people but doesn't shoot before it aims. they believe in climate change. they think science matters. they think that it is important for us to have some basic regulations to keep our air clean and our water clean. and to make sure that banks aren't engaging in excesses that we saw before. so there's a broad convergent of interests around those issues. i think what you're seeing among democrats right now is a difference in tactics. trying to figure out how do you actually get things done? how do you operate in a

political environment that is become so polarized? how do you deal with the power of special interests and frankly, how do you deal with a republican party right now that has moved so far to the right that it is often hard to find common ground. so that's the debate taking place right now. it is a healthy debate. ultimately, i will probably have an opinion on it based on both being a candidate of hope and change and a president who has some nicks and cuts and bruises from getting stuff done over the last seven years. for now, i think it is important for democratic voters to press themselves and for the candidates to be run through the paces.

i am not unhappy that i am not on the ballot. ron allen, nbc. >> on the republican side and a lot of your guests were probably intrigue that had there's a candidate still running who has called for a ban on muslims. >> intrigued is an interesting way to put it. >> what was their resnacaction? that's one of my five questions. >> let's stick to two. >> in the past you've explained that as anger, resentment, insecurity. how much responsibility do you accept for that reservoir of feeling in the country? and a couple weeks ago you told matt lauer that donald trump

would not win the presidency. do you now think he will not win the nomination as well? what about rubio and what about cruz? >> i think foreign observers are troubled by some of the rhetoric taking place in these republican primaries and debates. i don't think it is restricted by the way to mr. trump. i find it interesting that everybody is focused on trump, primarily because he says in more interesting ways what the other candidates are saying as well. so he may up the ante in anti-muslim sentiment. if you look at what the other republican candidates have said, that's pretty troubling too. he may express wrong anti-immigration sentiment but

you heard it from the other candidates as well. you have a candidate who sponsored a bill that i supported to finally solve the immigration problem and he's running away from it as fast as he can. they're all denying climate change. i think that's troubling to the international community. since the science the unequivocal. and the other countries around the world, they kind of count on the united states being on the side of science. and reason. and common sense. because they know that if the united states does not act on big problems in smart ways, nobody will. but this is not just mr. trump. look at the statements being made by other candidates.

there's not a single candidate in the republican primary who thinks we should do anything about climate change. that thinks it's serious. well, that's a problem. the rest of the world looks at that and says, how can that be? i'll leave it to you to speculate on how this whole race will go. i continue to believe, mr. trump will not be president. i have a lot of faith in the american people and i think they recognize the being president is a serious job. it is not hosting a talk show or a reality show. it's not promotion. it's not marketing. it's hard. and a lot of people count on us getting it right.

and it's not a matter of pandering and doing whatever will get you in the news on a given day. styles it requires you to make hard decisions, even when people don't like it. and doing things that are unpopular and standing up to people who are powerful but don't have some powerful constituency. and it requires to be able to work with leaders around the world in a way that reflects the importance of the office. and gives people confidence that you know the facts and you know their names and you know where they are on a map. and you know something about their history. and you're not just going to play to the crowd back home. they have their own crowds back

home and you're trying to solve problems. so yeah. during as you get closer, reality has a way of intruding. these are the folks who i have faith in. they will ultimately say whoever is standing where i'm standing right now has the nuclear codes with them and can order 21-year-olds into a firefight and have to make sure that the banking system doesn't collapse and is often responsible for not just the united states of america but 20 other countries looking for us to do something. and the american people are

pretty sensible. and i think they'll make a sensible choice in the end. all right? thanks, everybody. thank you. >> hello, everybody. i'm kimberly guilfoyle and this is "the five." we just heard from the president in rancho. he took questions on replacing justice antonin scalia on the supreme court. republicans have vowed to block him from nominating a successor. he still says he plans to data very well qualified candidate in due time. someone who is indisputably qualified for the seat. he said those who argue the nomination should be made by the next president are reading something in the constitution that isn't there. let's take it around the table. any surprises in this discussion? >> there are a couple of things. i heard president obama say early on, the constitution is

clear. and i think he was referring to, they've been reading into it. for the last seven years he's done nothing but sbreed the constitution. you think of obamacare, the executive order on immigration, the drone program, closing gitmo. he went around the constitution on all of those so that's kind of weefrld i said yesterday i think the republicans are making a mistake talking about shutting down the economy. let president obama nominate and then take your time and do what you have to do. that's the way it is written. president obama game a different, when he said no. i didn't say i'll nominate a mod raxt he ki , a moderate. he was drawing a line in the sand. the point, more divisive

politics. i think he could have softened that tone a little bit but my final observation is, i love the flag on the lapel look for president obama. >> what do you think of his documents? politically divisive? >> first, i feel that i have been given some kind of drug. like i was drugged through rhetoric. it very hard for me to now remain focused. i feel like i have been roofied by president obama's rhetoric. >> at least it was free. >> it is nice that he cares about the original intent of the constitution. that's fantastic. there was a question earlier about diversity. and i also think, they're so narrow minded about this. who says it has to be an snern with respect to peta, why not a very bright giraffe? have we gone far enough in the world of diversity?

have we? that's all i have. >> thank goodness katie is here. >> the thing that strikes me was president obama reiterating this myth that republicans have been obstructionist in congress. for some reason they've not allowed him to have his judicial nominations. sense 2009, the senate has confirmed 20 wound of his judicial nominations. at the supreme court level and lower levels. two of those were supreme court nominations and confirmation and they only rejected to. he has a pretty good number. so he was asked about the democrats side of the election. he was asked about hillary clinton and bernie sanders. he said hillary was an outstanding secretary of state. at this very moment hillary clinton is being investigated, criminalally by the federal bureau of investigation. not only just for her mishanding

of information but also on corruption charges. i thought that stood out especially. >> so just to tag on to the comments you made, he was clearly making the case to make an appointment and follow process. he seemed to shy away from making the recess appointment that he would go by the books and make the nomination and then have the person vetted and do the hearing. but he said, everything is blocked. suggesting it just doesn't matter that the republicans and conservative there's try to block or filibuster without even considering qualifications. even if it is somebody they might not object to. >> absolutely. i think that's something president obama continues to use in an election year to try to paint republicans as the obstruction is who are not reasonable in terms of not putting all that nominee. they're not willing to confirm anyone.

as i just smanld, republicans and democrats have been more than willing to confirm the vast majority of what president obama wanted. >> to use lapping like venom and rancor. they have started the alarm about the absence of beam the lower appeals court and the federal court benches. it is an outrage. not just limited to the judiciary. it extends to the ambassadorship which has been of concern to me. we have so many countries in crisis in terms of the relationships and what's going on with isis. no intention, why do they treat this president so badly? it is just outrageous. >> a race question. >> i bring it up that race has something to do with it. >> oh, come on. >> the second thing that you said was just so wrong. there is nobody who says there

is a criminal investigation of hillary clinton -- >> the fbi confirmed it. no, they said there is an investigation into the use of the server. >> it's hillary clinton's server. the federal bureau of investigation investigates crime. >> i think in that press conference is so revealing to me. the president said the gop has been so far to the right. so refusing to compromise or govern it is hard to see how you get things done. how the government functions. >> he is so not a leftist idealog. >> he tried to bring tim example of justice kennedy. it was 18 months versus nine months left on his term. >> in the last year -- >> nominated. >> all i'm saying is confirmed. >> he was nominated in the prior year. we have nine months left. >> you are on such thin -- >> you guys stay put.

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i think we should've taken a tarzan know where tarzan go! tarzan does not know where tarzan go. hey, excuse me, do you know where the waterfall is? waterfall? no, me tarzan, king of jungle. why don't you want to just ask somebody? if you're a couple, you fight over directions. it's what you do. if you want to save fifteen percent or more on car insurance, you switch to geico. oh ohhhhh it's what you do. ohhhhhh! do you have to do that right in my ear?

i never thought i would say this on tv but check out hillary clinton barking like a dog. >> one of my favorite, favorite political ads of all time was a radio ad, rural arkansas where the announcer said, wouldn't it be great if somebody running for office said something? we could have an immediate reaction as to whether it was true or not? well, we've trained this dog and the dog, if it is not true, he will bark. i'm trying to figure out how we can do that with the republicans. you know? we need to get that dog and follow them around. and every time they say these things, the great recession was caused by too much regulation. bark, bark, bark! >> i have to hear that bark again.

>> bark, bark, bark! >> that's so my new ring tone. any way, she did that during a campaign stop in reno where she said republicans were untrustworthy. pretty funny that she is barking like a dog. the mistreatment of classified information. if you applied that joke, training dogs to bark at lies, whenever hillary spoke, imagine whatever whatever that would be like. >> can we talk a little about russia? you famously pressed the reset button. are you embarrassed by that now? that gesture? >> no. i thought it was a brilliant stroke. >> what good boys. let's try this again. >> i did not e-mail any classified material to anyone on my e-mail. there is no classified material.

>> they're like little furry lie detectors. keep going. >> i did not have sexual relations with that woman. >> i'm sorry. how did that get in there? >> i certainly do remember that trip to bosnia. i remember landing under sniper fire. there was supposed to be some kind of a greeting ceremony at the airport but instead we just ran with our heads down to get into the vehicles to get to our base. >> yeah. even he could see through that one. more. >> did you -- >> i i understand the continuing grief at the loss that parents experienced with the loss of these four brave americans. and i did testify as you know for 11 hours.

and i answered all of these questions. now, i can't, i can't help it that people think there has to be something else there. >> i would have done more than bark. finally -- >> i can't think of anything more of an outsider than electing the first woman president. i'm not just running because i would be the first woman president. i would not ask anyone to vote for me based on my last name. >> there you have it. every time hillary opens her mouth, her campaign goes to the dogs. it is enough to make the baja men cry. ♪ who let the dogs out ♪ who let the dogs out >> can we just have a minute?

>> it's official. the most immature show in television. i love it. that was a beauty. who let the dogs out? >> she was pandering to the westminster dog show. >> didn't she know this would happen? she said i'm going out there to talk about the story and barking. that's a great idea. go do it. >> she does do southern accents. >> right. >> all kinds of accents. >> dog pile it, dog pile it. >> that was your best ever. politics aside, she opened herself to mockery and greg gutfeld came right out. >> who pushed the video? >> exactly. hillary let the dogs out. >> she totally did. >> all right. don't go anywhere. more to come on "the five" when we come back. you both have a perfect driving record.

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president obama a couple minutes ago wrapped up a press conference from, where was it? rancho mirage, california, where he is speaking in front of the association of southeast asian nations. questions were answer asked they were primarily focused on the supreme court nomination process going forward.

he did say he would nominate. did he call the republicans obstructionist and there was a question of whether or not he would nominate a moderate. he was not sure. >> listen to the nomination. as would you with any nomination the president would put forth and let's see what happens. >> was at the one being divisive? >> not at all. he said he wouldn't do a recess appointment. it is very interesting that you're saying you're open to it. in washington you hear people saying listen, this is balance of the court. we're not going to allow anybody to take that seat. all of a sudden president obama wants to interpret the

constitution by the word of the constitution. >> the living breathing thing. >> i think it is important to point out that it is cut and dry. the president has an obligation to nominate someone and the president has an obligation to consider. it doesn't mean holding hearings or that they have any obligation to confirm whoever president obama puts up. and it is quite sim. mr. they can do what they want. the power is with the senate majority. he says this reflects, but it has been like this forever. this always happens when a supreme court justice dies which makes me think they should have an alternative way to deal with it. actors have an understudy, a back-up.

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breo is not for people whose asthma is well controlled on a long-term asthma control medicine, like an inhaled corticosteroid. once your asthma is well controlled, your doctor will decide if you can stop breo and prescribe a different asthma control medicine, like an inhaled corticosteroid. do not take breo more than prescribed. see your doctor if your asthma does not improve or gets worse. ask your doctor if 24-hour breo could be a missing piece for you. see if you're eligible for 12 months free at mybreo.com. welcome back to "the five" on. behalf of all my co-hosts, we have a very special one more thing. one of our very own, ainslie, has been named as co-host of the important show, fox and friends on the fox news channel. she'll be batting lead-off for us every day. we're super excited for her. there isn't a person in the building who isn't happy for

ainslie. and how many years ago, this was your dream, hard work, great work ethic. congratulations to you and your family. "special report" is next. this is a fox news alert in washington. we begin with a fox news exclusive. satellite image ri shows the chinese military has deployed an advanced surface to air missile system on one of its contested islands in the south china sea. another example of a foreign power challenging president obama to respond to an act of defiance and aggression. the breaking news tonight. >> the discovery of these missile batteries on woody island in the disputed islands of the south china seas comes just as president obama and leaders of the asean summit pledge to commit themselves to maritime security and safety including freedom of