>> we begin breaking news as we contin shannon: we begin breaking news as we continue extended coverage as the nation mourns the passing of the regensburg, she lost her long battle after number of bouts of cancer at the age of 87. we will spotlight a remarkable life and legacy as we continue. are passing sparks political conversations that leave the vacancy in the nation's highest court in a very divided presidential election year. we will talk about a political storm that is already brewing tonight. welcome to special coverage of fox news at night. we will honor ruth bader ginsburg for her time, the woman

that she was his reaction pours in from across the spectrum. kevin cork is live at the supreme court where crowds have been gathering to pay their respects. >> he spent numerous hours here usually in better circumstances but we've been joined by thousands celebrating the life and legacy of bader ginsburg self by pancreatic cancer at the age of 87 a disease that took my mother, something i know very well. it is a shock because even though at her advanced age you may be saying she was so strong and indeed she was, she seemed almost indestructible and yet tonight she succumbs to cancer. let me share a statement from john roberts, he said our nation has lost a jurist of historic stature, today we mourn but with

confidence future generations will remember ruth bader ginsburg as we knew her, tireless and resolute champion of justice. here is the president on her passing. >> i didn't know that. i am learning that for the first time. she bed an amazing life. what else can you say? she was an amazing woman. whether you agree or not she was an amazing woman who led an amazing life. i am sad to hear that, thank you very much. >> reporter: an amazing woman who led an amazing life. last year at the supreme court, flying at half staff, similar circumstance across the street, the flags flying at half staff and that is the case at the white house. obviously politics will be a major storyline here because we

all wonder will the republicans in the senate move ahead with a nominee. let me share a statement from the senate majority leader mitch mcconnell. he said this tonight in a statement, donald trump's nominee will receive a vote on the floor of the united states senate. chuck schumer tweeted a response, the american people should have a voice in the selection a next supreme court justice therefore this vacancy should not be filled until we have a new president. here is the former vice president, joe biden. >> tonight and in the coming days we should focus on the loss of the justice and her enduring legacy but there is no doubt, let me be clear, the voters should pick the president and the president should pick the justice for the senate to consider.

this was the position of the republican senate in 2016 when there were almost 10 months to go before the election. that is the position the united states senate must take today. >> that is the real question. what will the senate do in the days ahead, but you hit the nail on the head, tonight is a night to honor her legacy, her memory, there will be time for speculation and very likely a nomination. shannon: thank you for your live reporting. the united states senate with the responsibility of setting and voting on supreme court nominees, both sides of the aisle quickly weighed in tonight. joining us chad program to fill us in. what is the reaction across the political spectrum? >> reporter: this will be a very

challenging path the next couple weeks or months as they tried to get this nomination through. pay attention to individual senators, swing votes like lisa murkowski, susan collins of maine facing a competitive reelection bid, lisa murkowski has indicated she thinks it would be better to wait until after a new president is inaugurated. i would look at other senators facing competitive reelection bid in competitive states, cory gardner in colorado, republican of colorado, joni years, tom tillis in north carolina, martha mcnally in arizona indicated she thinks they should forge ahead with the nomination, mitch mcconnell says they are going to go ahead and try to fill this seat. listen to what mitch mcconnell said earlier this year to bret baer. >> if you're asking me i hypothetical whether this republican senate would confirm a member of the supreme court to a vacancy created this year we would fill it.

>> this is what mitch mcconnell said four years ago when there was a vacancy under president obama. >> the next justice could fundamentally alter the direction of the supreme court and have a profound impact on our country. so of course, of course the american people should have a say in the court's direction. >> reporter: in february of 2016 when antonin scalia passed away mitch mcconnell moved quickly, unilaterally, not even consulting with other senators to say they would block any nominee, they would not even entertain a nominee president obama would put forth in an election year, that turned out to be merrick garland who never got a hearing in the united states senate and this is why diane feinstein, top democrat in

the judiciary committee says, quote, under no circumstances should they consider any nominee just before presidential election in 2020. could they get this done before the election even if things go smoothly? hard to see. it takes an average of 40-45 days once someone is nominated before they get a hearing in the united states senate, it takes 67-70 days, that is the average for actual confirmation on the senate for. the most recent metric we have is brett kavanaugh in the fall of 2018, 57 days before he got a confirmation hearing at 89 days before he was confirmed on the senate floor. shannon: his confirmation battle is proof a lot of times not a smooth or speedy process, especially not the most recent in recent years and i feel like historically this what is going to be different than everything before it. >> reporter: that is right and sometimes these hearings are explosive because these are lifetime appointments, we saw a lot of protests on capitol hill

with brett kavanaugh. that was a dramatic scene and we saw it with clarence thomas and anita hill. they reopened the clarence thomas hearings in the fall of 1991 after they heard -- same thing with brett cavanagh and christine ford it just because you submit someone to the judiciary committee does not necessarily mean this is move sailing. keep in mind what happened with harriet myers, former white house counsel george bush nominated, she had to withdraw, they defeated robert bork, president reagan's nominee on the senate floor in 1987 and douglas ginsburg was nominated. he had to withdraw. that is how we ended up with anthony kennedy. if they do the bidding process, it does take a wild. to do that in 40 days or so it depends how quickly donald trump wants to move even though he put up a list of potential nominees. shannon: some of the nominees on his list including the old and

new list, he met with them before they went through this process last time around, brett kavanaugh -- we will see if that impact so republicans hold to gather the vote with the issue of filibuster. >> it will be a question if they have the votes. the math is very important. the breakdown in the senate is 53 republicans, 47 senators who caucus with democrats and they can only lose two, getting down to 50, 51. if you lose another when you have a tie, you could have mike pence trying to break a tie, that has never happened with the supreme court nomination to confirm someone. as it pertains to a filibuster this is very important, we never technically had a filibuster of the supreme court nominee. fortis was already on the supreme court in 1960s when they wanted to elevate him to chief justice of the united states and he was filibustered but it was

pretty clear back in 2017 with the nomination of neil gorsuch the senate majority leader, mitch mcconnell introduced what is known as nuclear option 2, something harry reid opened up to lower the bar to cut off filibusters from 60 eas to 51 with all executive branch nominees accept the supreme court and what happened with mitch mcconnell and neil gorsuch in 2017 you see extended it, supreme court nominees, neil gorsuch and brett kavanaugh never would have gotten to a confirmation vote had they been going by the rules. these are not senate rules, the senate does a lot of its business by precedent, and what mitch mcconnell did was establish a new precedent, lowering that bar from 60-51 so they cannot realistically filibuster this nomination.

>> it is crazy to think about it was not that many years or decades back that nominees didn't even come to the hearings, they didn't show up or defend themselves, there was no fighting and in more recent years there were justices confirmed 98-0. it wasn't that long ago and seems impossible at this moment so things have changed, very unique year, very challenging year in a lot of ways we watch and see, thank you for being up late or early with us how you count on the east coast. we appreciate it. justice ginsburg served more than 2 and a half decades on the supreme court, one of only four women ever appointed to the court. during her tenure she was a fierce advocate for women's rights. take a look back at her long and distinguished career. >> i, ruth bader ginsburg do solemnly swear. >> he might have seemed small in stature but as the second woman to be nominated to the us supreme court ruth bader ginsburg was a trailblazer for women's rights and a champion

for civil liberties. ginsburg was born ruth jones later on march 15th, 1933, in a working-class neighborhood in brooklyn, new york, the daughter of nathan and celia bader. her mother died when she was just 17, the day before she graduated from high school. >> it was one of the most trying times in my life but i knew she wanted me to study hard and get good grades and succeed in life. so that is what i did. >> reporter: she finished first in her class at cornell university where she met and married martin ginsburg, and aspiring lawyer and, quote, the first boy i dated who cared that i had a brain. her husband ginsburg pursued a law degree, enrolling at harvard after the birth of daughter jane. then columbia law school where he graduated at the top of her class. she stayed in the world of academia and a professor at university, she gave birth to her son james. at, the university to become that school's first female

tenured law professor. she described the 1970s as a fruitful time for women's rights. >> be in the right place to help events for women's equality. >> he went on to create the american civil liberties union women rights project and as general counsel for the aclu ginsburg began appearing before the supreme court, argued six cases for women's rights before president jimmy carter nominated her to serve on the us court of appeals for the dc circuit in 1993 bill clinton nominated her to the nation's highest court, she was only the second woman to serve on the supreme court and the first jewish woman. >> what a long way we have come in this nation. >> reporter: after a series of hearings the senate confirmed ginsburg to the post by 96-3. >> ruth bader ginsburg, i believe the nation is getting a

justice who will be a guardian of liberty for all americans and an insurer of equal justice under the law. >> reporter: on the bench ginsburg was known to the left of center but favored caution and restraint in her decisions. while she never claimed to have a favored opinion. >> my favorite opinion is a little bit like asking me which of my grandchildren -- >> reporter: ginsburg said the ruling in the virginia military institute case which prohibited the state from operating all-male institution with taxpayer dollars gave her tremendous satisfaction. >> there was a very satisfying opinion for me to write. >> reporter: heard dissent in ledbetter versus goodyear tire was a precursor for the lilly ledbetter fair pay act which congress passed into law in 2009 to address the perceived pay gap between men and women but she suffered losses too. in an interview with new republic she said if she could

overrule one decision it would be the 2010 citizens united ruling that allowed corporations and unions to financially support candidates running for office. ginsburg said, quote, the notion that we have all the democracy that money can buy straight so far from what our democracy is supposed to be so that is number one on my list. in her personal life ginsburg battled three separate cancer diagnoses. in 1999 it was colon cancer. a decade later pancreatic cancer and in 2018 she underwent lung cancer surgery, each time she was out of the hospital within days. >> my colleagues so rallied around me and made it possible for me to go on and not miss a day in court. >> reporter: outside of court ginsburg loved the opera, passion she shared with conservative justice antonin scalia and famously serenaded by proceeded to mingo at harvard university where she earned an honorary degree.

she made exercise a staple in her life and her 80s come out twice week with her trainer. >> my father came to the united states when he was 13, he came from a small town outside odessa. >> reporter: she was very proud of her jewish heritage, and the advantage for american jews. >> for so many years jews were tearful about things and they were. but today you can say it openly with pride, something i have witnessed in my own life span. >> reporter: throughout her life she remains an optimist. >> we still have a way to go to ensure that all people in our land enjoy equal protection of the laws but considering how far we have come there is good cause for optimism about our country's

future. >> reporter: as we forecast a political firestorm over when and how the supreme court vacancy will be tackled created by justice ginsburg's basket, just as herself, we are to talk many times about the succession that would come after. she's been doing that recently as well. >> reporter: root leader ginsburg really understood what a cultural icon she was. she had a full career as you pointed out, when it 60 is all she went on to the supreme court nominated by bill clinton and among those that share the liberal ideology she had this larger than life figure and presence, she understood her importance in the cultural scheme but also her importance on the supreme court. even signs around her neighborhood, where a mass, rvg

lives within a mile of here and this is a quote given to npr obtained by npr, dictated to her grand daughter in the last few days of her life, my most fervent wish is that i will not be replaced until a new president is installed. now comes the question about whether or not donald trump will try and fill the seat left vacant, we know what the short list looks like, donald trump and candidate trump in 2016 became the first presidential candidate to put out a list of potential supreme court nominees. he picked two from that. now we have the list as it looked in 2017 lessons then he has at about 9 people including a number of senators including a couple of senators on september 9th. a couple of those senators, ted cruz and josh holly among them

on the list will be voting if donald trump decides to nominate someone, ted cruz has been out in the past couple hours talking about how he thinks the vacancy needs to be filled before the election because he says what if this goes to the supreme court, the election goes to the supreme court like bush v gore, then you have a 4-4 conservative liberal bench on the supreme court, ted cruz that could create a constitutional crisis in it is imperative for the senate to fill the vacancy. shannon: it is hard to imagine that timeline happening based on where we are at this moment in political life but let's hope it does not come to supreme court number-numfour decision but this is 2020. thank you very much for your time. the life and legacy of ruth bader ginsburg, we have some

comments from hillary clinton who was in a very tough presidential election in 2016 when we were having a similar debate over an open seat, what she is saying about that next. the game doesn't end after a spectacular touchdown grab

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>> shannon: continuing the conversation about justice ginsburg, her life, legacy, what comes shannon: continuing a conversation about justice ginsburg our life, her legacy and what comes next. we are joined by roy murdoch and mark teasing. good to have you both with us. so we are barreling ahead on the political angle to this. both the top senators, chuck schumer, top republican, majority leader mitch mcconnell quickly weighing in on this. much as we saw following justice scalia's abrupt death we have hillary clinton weighing in. she was the 2016 contender facing against donald trump when there was an open seat, all the polling we saw showed this was a major driving force, the open supreme court seat for voters whether they were hillary voters were trump voters, here is what she's saying about this going to the senate.

>> democrats are in the senate will have to use every single possible maneuver that is available to them to make it clear that they are not going to permit mitch mcconnell to enact the greatest travesty, the monument to hypocrisy that would arise from his attempting to fill this position. shannon: where do we go tonight? >> what is going to happen is donald trump will nominate someone to fill her seat in the senate will confirm him or her. that is how it works. we look at precedent, the president is when the president and the senate agree on a nominee the nominee gets confirmed. dan mclaughlin have a great

piece about the history of this. there have been 29 instances in american history where as the president has nominated somebody during an election year or lame-duck session every time there has been a vacancy every single time the president nominate somebody, it would be unprecedented for donald trump not to nominate someone for the position and then look at what happened when the president was one party and the senate was another party, eight times the nominee failed, only once did they get through and that was in 1888 under grover cleveland. the opposite situation we have today where you have the president of the same party as the senate, there have been 10 instances that happened and only once has the nominee failed. the president is to do it and fill be open seat. shannon: mitch mcconnell was very careful with his words in

2016 and has been since then and making the distinction at the president and senate are of the same party you can move forward and when they are in opposition you wait and let the voters weigh in. that is his position, democrats calling it hypocrisy saying it isn't a different section matter in this case. we have people flipping, those who say they shouldn't fill the seat now. in 2016 saying we laid down the framework, this is we are going to do it, democrat who demanded merrick garland get a chance, he was the nominee, that he get a chance tonight saying absolutely no way he would allow a vote. it is going to be up to the republicans whether they can hold their caucus and get enough numbers, chad program, a better vote counter than anybody on capitol hill. >> imagine the situation were different, if hillary clinton were in the white house and chuck schumer were senate majority leader and conservative justice passed away, it would be full speed ahead, totally different story.

secondly we are assuming after the election because of the mass mail, you may not know in november or december the president is. the senators will decide in tight races that may get tied up. we had a hearing in new york city, primary for congressional seat, a 6-week ongoing situation, all these ballots being looked at and debated. it may not be easier to get through this after the election. at least before the election we know who the president is andrew the senators are. after the election that may be an open question going into january. shannon: this is a unique moment in history. this country in the world has been hit by the pandemic and since may we had increasing protests, some have turned very violence, we've seen damage to

cities and businesses and lives, all these different tragedies across the country, it is a divided place right now. look at this in the context of that. does that change the calculation? >> might change the outcome. if trump does this there might be riots. have you been to portland, have you been to rochester? there are riots all over the country. the right threat isn't going to work. the truth, ted cruz pointed out because the election may be thrown into the courts, you -- heavenly 8 justices is a bad situation if it is decided a bush v gore type situation and hillary clinton and her comments saying they better use all the tools at their disposal, they disarmed themselves, democrats got rid of the judicial filibuster and shows to filibuster merrick garland which

made the republicans get rid of it for supreme court justices. they made their own bed. the reality is donald trump if he can get 50 votes and put a supreme court justice on before the election and there's little democrats can do about it and no one to blame but themselves. shannon: final word to you. >> i agree with what mark said. another interesting aspect of this, the unusual voting situation, people have been voting for the last week and a half. as the situation goes on people will be voting on november 3rd but on the day it is happening in real-time for better or worse. all sorts of unusual distortions and consequences and repercussions may go on throughout this. we are not exhausting the narrative. knows what is going to happen next. shannon: i pray every morning across the political spectrum because there's so much to be handled as we can only pray that

there is healing in this country and we just have to plow through history as it comes at us. thank you both. much more to come on fox news at night, greater insight into the supreme court career of peter ginsburg next.

shannon: as we reflect on the life and legacy of ruth bader ginsburg a journalist with the vast amount of experience and insight covering the supreme court, the brains of the operation, knows more about the supreme court than anyone who works there. bill, thank you for the time with us tonight, you spent time in conversation with her in interviews. what are your thoughts about her and the impressions you had? >> i think she will be

remembered not only for her talent as a justice but her perseverance somebody under the previous cancer diagnosis would bring her legal briefs and read them from the hospital bed. she used to bring a flashlight to the theater and secretly try to read the briefing, someone who took her job very seriously. shannon: she was so committed despite calls from the left or the right to step down. this was her life's work, she wasn't going anywhere. we remember the passing of her husband, they were so incredibly devoted and close and had a beautiful love story which is why i was surprised that she was on the bench and her thought was this is what he would have wanted me to do. she had equipment to this life's work that kept her going through

a lot of challenges. >> she had her share of hardships over the years, talked about early in her career she faced 3 strikes as a woman, a jew and a mother and trying to overcome all of that to become, to reach the supreme court a real testament to her talent and perseverance. i call her a gentle warrior. despite her tiny size and soft voice she had fierce determination and intellect and it showed. nobody messed with justice ginsburg when it came to arguing before her and her colleagues. >> you and i talked about how she was a powerful dysentery when justices use are there opinions, usually a synopsis from the bench not all the time that the dissenters read their portions but she often did and

she was in strong voice and didn't back down. something she enjoyed doing making sure she made her point and that she was heard in important dissents that she authored. >> it was a change from her early years on the bench, more subdued but once she got some years on the court and became senior liberal justice on the court she started to find her voice more, strongly worded dissents, she often used her colleague antonin scalia as a model to craft a strongly worded dissent that future generations of people could use when it came to deciding what the issues would be. shannon: that was a very genuine relationship.

we heard justice scalia's son, share the writings as well as to see them together, they were really friends with genuine affection for each other. bonded over what they had in common instead of focusing what they didn't agree on which was clancy when it came to jurisprudence. >> they were fellow new yorkers, he from queens, she from brooklyn and shared a love of opera and fine wine, they had more in common. there is a great picture in gusts -- justice ginsburg's chamber of the two of them, they used to go on trips together, a great picture of them sitting on top of the elephant in india and justice scalia told me when they were in france together she went parasailing, couldn't convince him to go parasailing, much

braver about that. i would never do that. >> she seemed pretty fearless personally and professionally and she leaves behind two children but she was very proud of, very much a woman committed to her family as much as her career, more so her family but they were two passions in her life and we keep saying, trailblazer or someone who forged a path in making sure there was a way she show the world you could be a working woman with a family, husband and children that you adored and also live out your greatest strength as well. thank you so much for joining us and sharing a little bit tonight, we appreciate it, much more ahead as we remember supreme court justice ruth bader ginsburg and talk about what happens now in 2020. guys, are you tired

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>> shannon: okay, were going to try to dig in deeper now in the locality of the sun and

>> the legality of the senate trying to fill us vacancy on the supreme court before november of the next inauguration in january. former us attorney, from the university of california, john you. as we talk about in the commercial. interactions with justice ginsburg, how do you think her legacy should be remembered? >> many are citing her liberal ryan dissents later in her career. something, not a typical for a supreme court justice. and she was first and foremost a procedural list, nerdy and precise, one of the reasons scalia liked her so much not just for her personality and i

think it misconstrues, judge and justice focusing on the big brand dissent, she was extraordinarily precise, professorial, very sort of one foot in front of the other law dominated. would you agree? >> the vast majority of her supreme court career, reliable of the with the liberal block, on matters of great substance she would venture away from that. >> her career on the court shaded by the fact that she is

always playing defense, originalist in nature, she spent most of her time, in the virginia military, no majority opinion other than she will be known -- such a stickler for the right procedures, those are not the issues that will get the attention of most americans. they advance innovative theories and got the court, sex discrimination was unconstitutional. jillian: where do you think we go procedure really from the senate, joined very quickly, chuck schumer and senate majority leader mitch mcconnell

weighing in, to you and john. >> the mind reels especially, it is the law of the jungle. i don't see a legal principle that stay the president's hands but welter of political considerations before and after november 3rd. jillian: a different year. this country has been through a lot. >> the president will go ahead and nominate someone to fill the vacancy. the real focus is in the senate. senator mcconnell is committed to having a vote so i expect the vacancy will be filled. jillian: pressure from joe biden, folks are not progressive enough in their view, do you think he will quickly give us a

list the next few days to force his hand or not? >> already committed to doing something unconventional. too much criticism relative to the conservative list. >> i don't the -- he is very committed to appointing an african-american woman as his first nominee. shannon: thank you both for being with us and weighing in tonight, thank you both. more coverage of justice ginsburg's legacy. a live look at the supreme court where folks are gathering tonight to share in memories of her.

>> we welcome justice ruth bader ginsburg. >> she has become such icon. >> i am 84 years old and everybody wants to take a picture of me. >> notorious rpg. >> closest thing to a superhero i know. >> ruth bader ginsburg changed the world for american women. i became a lawyer. we are not wanted by the legal profession. thousands of state and federal laws discriminated on the basis of gender. >> she was following in the footsteps of the battle for racial equality. she wanted equal protection for women. >> men and women offer equal dignity and they should count equally before the law. >> captured the male members of the course what it was to be a second-class citizen. >> discriminatory line hurts women.

>> i did see myself as a kindergarten teacher because the judges didn't think sex discrimination existed. >> i have had the great good fortune to spend life with a partner truly extraordinary for his generation. >> the first boy i ever knew who cared that i had a brain. >> the center of power on and off the court. >> ever since she wrote a defense the internet would explode. >> i came with a couple slogans. >> i would not be in this room today without the determined efforts of men and women who kept dreams alive. >> i heard she does 20 push-ups three times a week or something. we can't even get off the floor or get down to the floor. shannon: tough cookie, a fighter, and inspiration to the

end. flags are at half staff all across the country and honor of the legacy she left behind. thanks for watching special extended coverage. we will keep you covered in the days and weeks to come. that is it from washington, good night. >> good morning, supreme court justice ruth bader ginsburg died overnight after 27 years on the court and leaves a legacy that will be felt on american politics for decades to come. the 87-year-old justice passed away from complications from metastatic pancreatic cancer. ginsburg was sworn in as associate justice in 1993, the second woman to serve on the high court. ginsburg became a feminist