confirmation hearing. it's time for "shepard smith reporting." i'm dana. here's shep. >> shepard: i shepard smith in new york. we're going right back to the hearings in just a moment. but first, page k-1 where we have breaking news from the fox news deck. we just learned page k-1 that the iconic american actor burt reynolds has died. no cause of death has been released. the "new york post" is reporting at this hour that he passed away today at the age of 82. according to the post, his manager has confirmed the death of the hollywood reporter saying he died at jupiter medical in florida on the east coast. the former college football player who took up acting after an injury cut short his playing career. burt reynolds spent a decade

taking on bit roles before breaking through with deliverance, the longest yard and the movies in inches probably best known, smoky and the bandit. reynolds was born in lansing michigan in 1936, february. his family settled in riviera beach, florida after his father returned from the army and a europe. he attended florida state university, played for the noles on an athletic scholarship. he intended to go pro. his career was cut short by a series of injuries. he briefly contemplated a career in law enforcement. a teacher recognized his talent while reading shakespeare and pushed him to acting. that would earn him a florida state drama award in 1956 which came with a scholarship to hyde park play house. later, he went on to be known by most americans and people around the world.

burt reynolds dead today at 82. he died. we just learned that from his manager of cardiac arrest. further details have not been released. when we have them, we'll bring them to you. the hearings for judge kavanaugh continue on capitol hill. more news as it breaks. now back to washington. >> the relationships of reporters and their sources. again, the criminal civil divide there is something that i think has been a part of the case law in the past where the criminal context has been deemed in some cases sufficiently compelling. but that is -- set forth part of the reporter's privilege and the relayingship with confidential services in the role of the reporter in bringing light to democracy. >> thank you. >> i'd like to note we've had

good luck in confirming this week eight federal judges to lifetime appointments. [protesters in background]. eight federal judges, lifetime appointments this week. last week we did seven judges, 12 were confirmed without any objection from democrats, and so we've had a pretty good record of being able to show that you don't have anything to fear from lifetime appointments for federal judges like we've heard a big issue today. go ahead. >> thank you, mr. chairman. judge, welcome back. congratulations on your last day of interviewing in your life. i'd like to talk about precedent.

you've been a law professor. how long? >> i started in 2007, the first year. >> okay. let's pretend you're a sixth grade civics teacher for our 20 minutes together instead of law professor. precedence is important but i don't think the -- it's not something the american people know and it's something that maybe we can benefit from. has the supreme court ever made a mistake? >> the supreme court has made some major mistakes at times. dread scott, good example. >> how do you know when you have a mistake? >> sometimes you know right away. i think in those cases with the dissents written in those cases, those dissenters knew right away. i think they were mistakes right away. plessy versus ferguson was right. >> what was the ruling count, do

you remember? the vote? >> there was one dissenter, justice harlan. he was the only dissenter in that case. >> okay. it's so close to mccain's event that i know we shouldn't be joking right now, but i want to talk about lunch. republican senators have lunch together three times a week. when we do, if somebody's phone goes off, it was always john mccain's. he wouldn't know it came on full volume 10. it was like a ghost of lunches past. you wrote a really important article in catholic law review, the ten principles of good umpiring. it wasn't about you as basketball coach. it was about the job of a judge. i'm going to speed through them. i'm oversimplifying, but your top ten list was, if you're an umpire, you can't be a part son. you have no rooting interests, no fan favorites. number 2, the rules have to exist before the game. number 3, apply the rules

consistently. 4, can't remakes the rules on your preferences. [protesters in background]. >> it may be case that the nfl decides that a targeting penalty doesn't work. number 5, you have to have backbone or courage. number 6, tune out the crowd. number 7, an open mind. you think you know what case is coming before you and people may present arguments different than thought. number 8, you need the demeanor and temperament. number 9, you have to work with your colleagues and number 10, you have to be goods at explaining. rule number 2, the rules have to exist before the game. you go from a paragraph by paragraph structure. you pause and have a long 2 b and you explain about precedent. can you give us a 60 or 90-second view about how precedent relates to having rules of the game before the game? >> yes. precedent is important for stability and predictability.

so to know what the rules are ahead of time is important for good judging and for good umpiring and to do it consistently with how it's been done before is part of the system of precedent. the point is when the rules are set ahead of time by the precedent or by the law, when you're not making up the rules as you go along in the heat of the moment, which will seem unfair, which will seem like you're a partisan because you're going to seem like you're favoring one side or the other because of an allegiance to that team or favoritism. that's why in sports, as you know well, senator, because i know of your devotion to sports, there's a lot of detailed rules set forth about how the game is played and referees and umpires are supposed to call the game.

that's to ensure that there is predictabili predictability, stability that the players can rely on that and that it's overall fairness. due process is not a word used often in a refereeing contest but it is. notice about what the rules are ahead of time so everyone has confidence in the fairness of the game and that the umpiring, which is critical for the outcome of many games is done in a fair and impartial way. so facilitates i'm -- impartiality. the analogy is very strong, frankly. that's why i wrote that article. the chief justice that talked about the judge's umpire, because i coach and play a lot

of sports. i thought about the analogy. i thought there's a lot of parallels between being a good judge and a good umpire. i'm a connoisseur of umpiring. >> i want to jump in here. i agree the analogy is strong and tight but it's imperfect. >> yes. >> in a football game, eve everything that happens is predictable. woody hayes comes off the sideline and punches a player in the face. it was new and still nonparticipation. coach can't play. another 12th player can't play. there was a rule that spoke to that. what you're doing, it's not as defined. the cases that may originate are not as perfectly cabinable -- that's a word -- as in football what might help. help me insurance the distinction of judging, umpiring and the supreme court made decisions in the past. it's not the case that every

decision the supreme court has ever made is right and now a part of the permanent rule book. you sometimes have to throw them out. so sixth grade level, help us understand how from 1896 to 1954 you've repeatedly called brown the greatest moment in supreme court history. it's one of the greatest moments in american history as well. in those 58 years, the court was wrong for that whole time and yet the way we think about precedent, we might have or six graders thinking of every decision as right. how do you reconcile the two? >> the factors that the supreme court looks at, the decisions not just wrong but really wrong. what the real world consequences are, including workability and reliance. one of the genius moves of th thurgood marshall, he started

litigating -- he knew plesse was wrong. he knew the way to bring about the change was to create a body of law that undermines the foundations of plessy. he started litigating cases and showing case by case that separate was not really equal. he did it in cases like sweat versus painter and many other cases. he built up a record over time that by the time he went to the supreme court to argue brown versus board of education, he had shown its inconsistency with the law that it built up around it. for those that weren't otherwise as quickly on board with the idea that plessy was wrong the day it was decided, he was take nothing changes. >> i want to interrupt you. i want you to keep coming forward.

what you're describing right here in the new documentary marshall, every mom and dad ought to show their kids, my kids and i watched this before it was public. everybody should watch "the marshal." continue that, please. >> i think that by the time it got to brown versus board of education, that the foundations of overturning plessy were strengthened. by building a body of law that was inconsistent with the principle, the erroneous principle set forth in plessy. so he had a strategic vision of how to do this which was brilliant and he effectuated with a team of lawyers over time litigating case after case and building factual records that would show the badge of

inteariorty from it is a educational facilities and separate facilities more generally. that's how he was able to show that the precedent even with principles of stare decisis in place should be overturned. >> if you're on the court during that period, that 58-year period, i want the get to precedent, super precedent, precedent on precedent, super duper precedent. but one of the reasons you think this is because of the harland dissent. so back up. sixth grade level. what is the purpose of a dissent? why do we write them? >> we write dissents because we in a multimember court disagree with the decision made by the majority. because we think the issue is sufficiently important, if you're on the supreme court, that perhaps a future court will

pay attention to your decision or in a statutory case, sometimes maybe congress will think that your interpretation -- >> shepard: the hearing will continue on fox news channel after a brief commercial break. stay tuned. allergies with sinus congestion and pressure?

you won't find relief here. go to the pharmacy counter for powerful claritin-d. while the leading allergy spray relieves 6 symptoms... claritin-d relieves 8, including sinus congestion and pressure. claritin-d relieves more. >> shepard: the kavanaugh hearing continues open fox news channel in a moment. first, noting the death of burt reynolds that died this morning florida at the age of 82. trace gallagher has more. trace? >> shep, if you grew up in the

60s and the 70s and 80s, it's a sad day. burt reynolds was part of the landscape, part of the time. he got a nomination for best supporting actor in the porn movie from california, "boogie nights." he lost that to robin williams. he will be remembered for the bigger movies like "deliverance", "smoky and the bandit." "the longest yard". you can see the clip there. he knew what to do with a football. he was an athlete in college. he was in "the best little whorehouse in texas." we talked about his many relationships over the years. he was married to judy carne, the actress from "laugh in."

he dated sally field. he said sally field is the one that got away. he dated dinah shore who had a talk show. and lonnie anderson. lonnie anderson and burt reynolds dated for a number of years. burt reynolds is famous for the films that he turned down. he was supposed to be in star worse, "diehard" turned it down. he wases will supposed to be in "terms of endearment." and burt reynolds from 1978 to 1982 was the highest grossing movie star in the world. nobody has ever repeated that. for five, six years running, he made more money than anybody. the report says he died of a cardiac arrest. in present months, he was still working. in december of 2018, he has a

movie called "defining moments" that is set to be released. we're still waiting for reaction from those that loved him, close to him and those that worked with him over the many, many years. 82 years old. one of the great actors, one of the great hollywood men of all time. burt reynolds, dead of a cardiac arrest. as we get more reaction, shep, we'll bring it to you. >> shepard: trace gallagher live in los angeles. thank you. the kavanaugh hearings continue now on capitol hill. this is fox news channel. >> ordinarily you get on board the precedent but you might still write separately to say, i think this was a huge mistake and we should go back to a different approach. you see that sometimes. i think there's lots of -- >> i want to ask but the chair will let me have three more minutes.

what is the difference between an appellate court judge's job and a supreme court justice's job? >> there are many. >> specifically with regard to questions where there's been a precedent. >> so at the d.c. circuit level, court of appeals level, we follow vertical stare decisis. we're not allowed to deviate from a supreme court press department. let's put it this way. on the d.c. circuit, we were considering a prior precedent of our own. we can do that at times if the conditions for overrule ago precedent are met. we can't do that with respect to supreme court precedent. we have to file that. why is that? there's one supreme court in our system and lower courts have to follow that or there would be chaos in the federal system if

lower counts weren't bound to follow the precedent of the supreme court. >> is there a single supreme court justice today who agrees with every opinion of the court? >> i think that's got to be zero. >> right. >> so how does that get netted out in the next controversial case when you use these terms, precedent, super precedent, precedent on precedent? how does that get netted out? >> ordinarily it gets netted out by the court following the precedent until and unless the conditions for overturning something are met. brown versus board the most example of that happened. eerie railroad case. there's examples of it but it's rare. ordinarily what happens once a decision is decided, that's what stare decisis means.

you follow the decision by the court subject to the rules of stare decisis. that's part of stability, predictability and part of impartiality, part of public confidence and the rule of law that it's not just going to move pillar to post and the wall is stable and foundational. again, it's not brown versus board shows it's not absolute. that's a good thing. but it is critically important to the impartiality and stability and predictability of the law. >> the fact that harlan should have been the guiding opinion for 58 years isn't true just for the supreme court, it was also true for an appellate court? could an appellate judge gone with harland in 1940? >> an appellate judge was bound by the precedent of the supreme court and that would have been sadly plessy versus ferguson. >> so the core difference here

for the supreme court is there's greater latitude to consider the errors of the supreme court? >> yes. >> 30 seconds left. i have to get my last one out. what is the declaration of independence? what way -- the constitution is fundamental law for us. >> the declaration of independence is a document declaring independence from great britain but set forths a series of grievances from the monarchy, the system. many of which are reflected in the constitution in terms of protections that are in the constitution. if you trace to the declaration of independence, you can see the grievances they have are protections in the constitution, starting with the separation of powers and including the individual protections, whether it is ex-facto laws or freedom

of speech. the declaration of independence is a set of principles that i think guide our beliefs, life, liberty and the pursuit of happiness. all men are created equal, all people are created equal in our society and the principles have guided us, inspired us than the source of our liberty, the source of much of what we've done as a country since the declaration of independence. but it's not law the same way the constitution is law that is applied in courts. >> thank you. >> senator coons. >> thank you, chairman grassley. thank you, judge kavanaugh, to you, to ashley, to your family and friends. thank you for being here and for the opportunity to engage with you. again, you've shown great persistence and engagement.

[protesters in the background]. in the last round, we talked about the bedroom constitutional principle that nobody should be above the law, including president, which is a principle foundational to our democracy. it's about more than any one person, any one president. and i just want to continue asking you about the president's obligation to cooperate with the federal investigation and how your view of the president's power might implicate an investigation. as we know in 1974, senior officials in the nixon administration and the campaign were on trial for crimes related to watergate. with so many former white house and justice department officials implicated in crimes, then president nixon felt threatened by the investigation. so special prosecutor archibald cox issued a subpoena for the tapes, reasonably believing that they contained evidence of criminal activity, the president acted. instead of supplying with the subpoena for tapes, president

nixon had the special prosecutor fired. he fought the subpoena for the tapes all the way to the supreme court. i want to focus on the question of the president's action in firing the special prosecutor because that's what i think is a key issue here. judge, when president nixon fired special prosecutor cox, did he violate the law or the constitution? [protesters in the background]. >> i know the regulation in place for leon jaworski after the firing. i'm not recalling the specifics of the cox regulation in place at the time. >> i'll tell you there were for cause restrictions in place at the time. given that, do you think firing the special prosecutor violated the law or the constitution?

>> if it violated the regulation, it violated the regulation. >> would it have i'll have -- violated the constitution. what i'm getting at, are there these for-cause restrictions on the president's ability to fire the special counsel. >> the supreme court and the united states versus richard nixon analyzed the specific regulation at issue in that case. actually relied on the specific regulation and finding that the case was under the precise terms of the regulation in place at the time. the court analyzed that and really specific detail. pointed out that so long -- [protesters in the background]. >> let me be clear about the point i'm trying to get to. your views about whether or not when president nixon fired

archibald cox, he obstructed justice or the firing itself violated the constitution. it's important for you to know your views on nixon as well. i want to know what you think about the constitution and if it prohibits restrictions on the president's ability to fire a special prosecutor. >> my views are what the precedent says. in other words, i follow the precedent. the precedent of the supreme court in u.s. v. nixon case did apply that regulation -- >> judge, that was unanimous? >> it was, 8-0. >> are you aware of any justice questioning the decision? >> no. i've called it one of the four greatest moments in supreme court history, u.s. v. nixon. >> you. have that's what i want to get to. you in another context as we

talked about yesterday in a roundtable in 1999 volunteered unprompted that maybe nixon was wrongly decided. do you think us v. nixon was wrongly decided? >> i said it was one of the four greatest decisions and correct decisions in terms of the specific regulation at issue in the case, the court's holding in a criminal trial subpoena that the subpoena for the information, the tapes was enforceable in that context. and that's what i said before publicly about the nixon case. >> you would agree that it was correctly decided? did i hear you right? >> of course. when i say it's one -- when i say something is the greatest, that means i agree with it and the point was under the specific regulation at issue in that case, a crime trial subpoena for the information and it was a

moment of judicial independence, a moment where the court i think came together as unanimous opinion written by chief justice burger. that's an important moment in the court's history. >> so you'd agree that a court can order a president to produce records or ordered to testify in front of a grand jury? >> i'm not going to answer questions on how to apply u.s. v. nixon. >> but that is a holding. >> the holding had to -- could be enforced and that therefore given the regulation at issue in the case, the case was enforced. i'm not going to answer hypotheticals about how it applies in other context. by the way, i should add that the context of what you have up there is incorrect.

but i've said nixon was one of the four greatest moments in supreme court history. i've written that several times before including 1999. the context of that, if you want to know, was a roundtable with me and some lawyers who had represented the clinton administration. we were just talking, reflecting on the independent counsel investigation. my point to them, they were concerned that the subpoenas that were enforced by the courts during the starr independence counsel investigation had weakened the presidency. that was the position of the clinton lawyers. i said well, we were just following u.s. -- >> shepard: a quick commercial breaks and the hearings will continue after on fox news channel. for mom, the nation's largest senior-living referral service. for the past five years, i've spoken with hundreds of families and visited senior-care communities around the country. and i've got to tell you, today's senior-living communities

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♪ to err is human. to anticipate is lexus. experience the lexus rx with advanced safety standard. experience amazing. suffer from a heart attack.s it can happen anywhere, anytime. but during a suspected heart attack, immediately calling 911 and chewing bayer aspirin can help save a life. carry bayer aspirin. help save a life. >> shepard: the hearings continue in just a moment. first, a quick update on the travels of the president today. this is joint base andrews outside the district. the president is on his way to a rally tonight in billings,

montana. another of the familiar now maga rallies. he's set to tout his economic accomplishments and agenda ahead of the november elections. this on a day when all of washington and by that i mean all of washington is talking about the bomb shell that showed up yesterday in "the new york times." reporters asked the president about this when he left the white house a few moments ago. >> mr. president, did you find out who wrote the op-ed? >> shepard: here's the live pictures. let's see if he has anything to say now.

so the president ascending the stairs to get on air force one for his trip to montana tonight. a long list of officials inside the white house have been issuing denials today presumably at the president's office request. john roberts is following those developments live on the north lawn. hi, john. >> shep, good afternoon to you. the president there with no comment today on that bomb shell op-ed that hit "the new york times" yesterday. he did weigh-in on it yesterday

late often. a law enforcement officer's event. he called it a gutless op-ed. scolded "the new york times" severely for doing it. you can bet that the white house wants to know who is behind this whole thing. there has been some sort of an investigation launched. we're told it's not exactly an active investigation. but a lot of people weighing in on this, including first lady of the united states, melania trump with a rare rebuke of the author of that op-ed. she said "you're not protecting this country, you're sabotaging it with your cowardly actions. after his staff denied that he had anything to do with it today, the vice president, mike pence, went off on the anonymous author and "the new york times." listen here. >> it's a disgrace. the anonymous editorial in "the new york times" is a new low in american journalist. "the new york times" should be

ashamed. whoever wrote this editorial should be ashamed as well. >> you saw the list of people that issued denial. it included almost every cabinet, secretary, the staffers at the white house. you can add another name to that list as well after ignoring shouted questions as he left the cavanaugh hearings, white house counsel don mcgahn denied anything he had to do with writing the op-ed. >> did you have anything to do with writing this op-ed? >> no. he did not write it. so everybody so far that might have been in a position as a senior staff member or cabinet secretary to have authored such a tone has said that they deny it. of course, i don't imagine that the writer if was asked directly whether or not that person wrote it would say yes. what is interesting about this, shep, it could be anybody. we've heard from the top officials. there's thousands and thousands of people that work here in the white house and more broadly in

the administration. any one of them and even a mid level could have been considered a senior administration official. the term is used loosely around the white house by many members of the media. in fact, i saw senior administration officials watering the flower yesterday. >> shepard: whether it was used loosely by "the new york times" we don't know. it would be a big surprise if it were. >> it would. but i listened to a podcast that included the editorial editor for "the new york times." they said they went through a process of confirming who this individual was. so that might suggest that it wasn't somebody that is instantly recognizable as a cabinet secretary or senior level administration official. >> shepard: that podcast, the daily, it's an interesting one. john, true to form and on pattern, the white house going after the news media. >> yeah, "the new york times" is the main target of the white house's displeasure. sarah sanders going after

members of the media more broadly today. the white house wants to know who is behind this. obviously so does the media. sarah sanders tweeting out today a scolding of the media saying the media's wild obsession of the identity of the coward is tarnishing the reputation of thousands of great americans that proudly serve our country and work for president trump. stop, if you want to know who this gutless loser is, call the opinion desk of the failing "new york times." they're the only ones complicit in this deceitful act. the white house is playing down the significance of this. they say there's probably plenty of people that don't agree with every decision the president has made and might be fiercely opposed to it. but what is missing in that down playing of this is the fact that this op-ed would seem to indicate at some level in the administration there is a layer of officialdom that is actively working to thwart the president

on certain items and that represents a different thing. >> shepard: the call is coming from inside the house. john, thank you. >> saw that movie, too. >> shepard: yeah. equally disturbing. the hearings continue on capitol hill for judge kavanaugh on fox news channel. >> you also fully utilized the tools available to the independent counsel, right? you were part of a team that sought a subpoena against president clinton for dna evidence, yes? >> can i get 306. >> this is a yes or no question. i'm down to two minutes. >> can i get 30 seconds? >> if it's your last 30 seconds. >> i want to emphasize the special counsel system in place now is something that i repeatedly and expressly said is consistent with our traditions in my 1999 georgetown law journal article and the cfb decision. the special counsel system i've said is part of our tradition. that is the system in place. you're talking about something that has not been in place for 20 years.

>> that's right. the independent counsel statute, that structure hasn't been in place for 20 years. my core concern first is that you were perfectly happy to use the tools available to the independent counsel when you worked there. after working there, discovered and enthusiasm for its invalidation as a constitutional matter. in trying to understand that, i've dug into your writings, your opinions and speeches that you hold a view of the executive branch that you made clear in your phh dissent, which is in line in justin scalia's view, which is that there has to be in the president as the chief law enforcement officer of the united states, this is the unitary ex-secondive -- executive theory, not mine, to fire a -- what is appropriate in this traditional special counsel setting like the watergate period, is if the president

disagrees with the conduct of the prosecutor, he should supply fire him and bear the consequences. my point essentially is this. i'm convinced that you said repeatedly that you support the traditional practice of appointing special counsels but you haven't acknowledged that you supported this practice because the president has retained the power to fire the special counsel at will. those of us that have tried to enact statutes that might restrain the president in some way, by putting many place for cause removal restrictions have thrown back at us, the dissent from morrison v. olson, is profoundly dangerous. i simply wish you would be clear with us and the american people about your view of the scope of presidential power and what its

consequences might be. i don't think you're being direct with me about that because i think to be direct with me about that in this context would put your nomination at risk. >> i respectfully disagree, senator. you're talking about a statute that has not existed for 20 years. >> that's no longer what i'm talking about. what i'm talking about is your view of presidential power as made clear in speeches and in writings and in a decision this year. we're not talking about the independent counsel statue now. we're talking about the scope of presidential authority and it has consequences for our nation. you're clearly a capable and good man. a good neighbor hand a good coach. we've heard a lot about that. what i want to hear more about is an honest answer about your view of presidential power. >> you can answer. >> you're talking -- if i can answer uninterrupted -- >> you can answer on the ten minutes i give you. >> respectfully, i appreciate

your care. we've known each other since law school. we've been friendly since law school. your devotion to this. respectfully i believe you're talking about a statute that has not been in place since 1999. secondly, special counsel system i've specifically written about multiple times. thirdly, if there were some kind of protection for cause protection or some other kind of protection that were different from the old independent counsel statute, i've said that i would keep an open mind about that. so i have not said anything to rule that out. finally, i've reaffirmed repeatedly or i've applied repeatedly the precedent of humphries executor for traditional independent agencies and have never suggested otherwise. i have referred to that as an entrenched precedent. and i referred to us v. nixon as one of the greatest decisions in

supreme court history. >> we will soon take a break and then senator flake is up next. before there's a couple things. one, a 15-minute break. if you can make it 7 1/2 minutes, i'd appreciate it. i'm not ordering you to do that. i just said i would appreciate it. before you go, i want to get back to this justice kagan's comment on morrison, this is something that you and senator from delaware have discussed a long time. somehow the only commentary on kagan's law review article, presidential administration. she also said this in a magazine, "stanford lawyer" three years ago. it says "justice kagan has

called justice scalia's greatest dissent in morrison one of the greatest and gets greater. >> shepard: so you heard it there, a break of 15 minutes. maybe 7 1/2. we'll see. we'll take you back when it begins again. first, a.b. stoddard is with us associate editor from real clear politics. she's getting mic'd up and ready to go. i was listening to a.b. in the moments after the bomb shell op-ed anonymous dropped on "the new york times" on its website and through its alerts on your phones and the rest. it was a.b. that had what i thought were interesting comments at that moment. we'll take a quick commercial break and hear from her after this. . . but does psoriasis ever get in the way? embrace the chance of 100% clear skin with taltz.

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>> shepard: the dilemma said the op-ed written by someone anonymous a senior white house official we're led to believe by "the new york times," the dilemma says the author, which he does not fully grasp, is that many of the senior officials in donald trump's own administration are working diligently from within to frustrate parts of agenda and his worse inclinations. when a.b. stoddard heard that, it happened while she was a guest, happened to be on another network. she had interesting comments i thought. she's live with us from washington right now. i think what you said, best recollection, i think you said that people need to come forward and deny this or get out. >> yeah. the problem is, shep, that i think this writer believes that they're trying to calm down the country and assure everybody who

is nervous about president trump's temperament that all is well. what they have done is actually -- >> shepard: before you move on because we've been hearing that. you've been hearing that. i've been hearing that over and over and over again for well more than a year. that is not a new idea. you've -- how many times have you heard it? can you count them, that that's what people inside the white house are doing. >> i got an e-mail after the editorial that just came out. they said you hear a lot of news outlets, everybody is hearing from people saying this is exactly right and obviously confirms the bob woodward book reporting. what this author has done though is sort of encouraged probably more paranoia and more rage on the part of the president. he's going to do something to change the topic and do something dramatic to get our focus on somebody else. >> is that the fear now?

>> he tends to like to change news cycles with dramatic action. so i don't know what will come next. he doesn't want us talking about this. i think he's really going to believe there's a deep state. so in the end, it's not that helpful. it's incumbent on "the new york times" to tell the america electorate what level of seniority this person had. if it's a senior administration official, i can understand. it can be thousands of people. they should have told us if there's 12 people at this level or 60 or 27. i think that the whole thing really leads to breakdown of our constitutional system that our adversaries in iran and north korea and china and russia are just laughing over. >> shepard: the root of the problem is the president's immorality. anybody that works with him knows that he's not moored to any discernible first principles that guide his decision making is. that your observation? >> from what i observed in the campaign and what has been confirmed by people around the

president, it's not his immorality. it's his temperament. he's impulsive and erratic. he changes his mind quickly. he lies frequently. hits not measured. he doesn't have the temperament for the hardest job on the planet. i said that in 2016. that's the concern of the people around him. it's not that he's amorale. it's the way he conducts himself as the commander-in-chief makes everybody scared of him. that's why they're thwarting his agenda. >> shepard: and the world continues to revolve. we're having kavanaugh hearings today. is there anything that stand out as not just a grandstanding show for the masses for somebody that wants to run from office but something that could change the course of human events here. anything? >> the day is still young. i don't think they changed any votes. they gave him a few bruises. he's not the angel he was yesterday because of the disclosure issues. they sullied the republican members on the process and brett

kavanaugh about revelations that weren't made about things from the past but i don't think they'll change any votes. >> shepard: so the common thinking is he will get the republicans and maybe five democrats. if that's it, that's all. >> i think he has the votes unless something dramatic were to happen overnight that would change the votes of two moderate republican women. the democrats are likely to give him three votes. >> shepard: a.b., thank you. >> thanks, shep. >> shepard: have a great day. you as well. quick commercial break. "your world" with neil cavuto starts at the top of the hour. they'll get the start in, which is great. you don't want to miss the best in business when you don't have to. back to the kavanaugh hearing. i'm shepard smith in new york. see you tomorrow or friday. first, it doesn't pay for everything. say this pizza is your part b medical expenses. this much - about 80% - medicare will pay for. what's left is on you.

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