constitution, i should be the one who nominates justice ginsburg's se successor. jillian: it is monday, september 21st. supreme court controversy, joe biden says he should be the one to replace late justice ruth bader ginsburg, an apparent flip-flop from his stance from 2016. todd: we are live in washington with the left's new impeachment threat. well, they just dumped millions of ballots all over the country. it's not going to work. it's going to be a disaster and they know it. jillian: an exclusive fox news interview, president trump sounds off on mail-in mayhem, his warning to voters about election day chaos and the far left's future. todd: you've got to watch this, the coast guard jumping into action to save a group clinging for their lives. "fox & friends first" on a monday morning continues right now.

♪ todd: me thinks we're going to have wild nights and many wild days between now and november 3rd and quite frankly thereafter. jillian: i agree with you, 100% agree with that statement. todd: that's a rarity. we never agree on anything except our outfits. jillian: except the color we're going to wear. todd: good morning, i'm todd piro. jillian: i'm jillian mele. the supreme court draped in black to honor the life of supreme court justice ruth bader ginsburg as the nation mourns her passing. todd: on capitol hill, the debate intensifying over whether president trump should fill the long-time justice's seat ahead of the november election. jillian: griff jenkins joins us outside the supreme court with the latest. >> reporter: good morning. she was a champion for women's rights with a remarkable legal career that made her a feminist

icon and that's why thousands have poured in here to the supreme court over the weekend to bring flowers, light candles, even a vigil and signs that say thank you, justice ginsburg. across the street, the senate returns to washington and they are gearing up for a bruising fight as joe biden appeals to senate republicans to wait until after the election for a nomination. watch. >> if donald trump wins the election, then the senate should move on his selection and weigh the nominee he chooses fairly. but if i win this election, president trump's nominee should be withdrawn. as the new president, i should be the one who nominates justice ginsburg's successor. >> reporter: speaker nancy pelosi vowing to fight tooth and nail, threatening impeachment within the reel min realm of tao

stop the process. >> we have options. we have arrows in our quiver that i'm not about to discuss right now. but the fact is, we have a big challenge in our country. this president has threatened to not even accept the results of the election. with statements that he and his henchmen have made. >> reporter: the white house responded, sending this statement to fox news. quote, the speaker threatened to impeach the president again for simply fulfilling his constitutional obligation. numerous democrats are threatening to pack the court and say things like nothing is off the table. these are bizarre and dangerous power grabs by democrats who will stop at nothing to erode the constitution to enact their radical agenda. this as republican senator lisa murkowski becomes the second gop vote after susan collins to say she will not support moving forward on a nominee. she said i did not support taking up a nomination eight months before the 2016 election to fill the vacancy by the passing of justice scalia.

we are less than two months out of this election and i believe the same standard must apply. we don't know when mitch mcconnell will start the process. we expect it will be very soon, as early as today. it will be all eyes on mitt romney, cory gardner and the former judiciary chairman, chuck grassley, who haven't indicated how they will vote. democrats need two votes in addition to murkowski and collins to stop the nomination process from moving forward. jillian: thank you very much, griff. todd: blacks for trump board member says president trump has every right to name rbg's successor. >> we know that 29 times in the past this has happened during a presidential election year. even when the late great justice ginsburg was nominated, it took her 42 days to be confirmed. todd: that is fewer days than president trump has until election day. he also praised the president for being transparent with his list of potential nominees.

jillian: democrats threatening to pack the supreme court if president trump gets his nomination through the senate. joe kennedy the third tweeted, quote, if he holds the vote in 2020 we pack the court in 2021. it's that simple. house judiciary chairman jerry nadler tweeting, if senator mcconnell and the senate gop were to force through a nominee during the lame duck session, before a new senate and a president can take office, the incoming senate should immediately move to expand the supreme court, filling this vacancy during a lame duck session after the american people voted for new leadership is undemocratic and a clear violation of the public trust in elected officials. congress would have to act and expanding the court would be the right place to start. todd: senators split on where to go from here, most republicans pushing to nominate and approve a conservative while democrats say it's too close to the election and the next president should get to choose. take a listen. >> we're a lot closer now than we were when president obama's

vacancy occurred. so let's respect the rights of the voters of this country, who already started voting in some states. whoever wins the election should be the one who nominates the next person to serve on the supreme court on the united states. and that's a point i think the american people need to hear. >> if the shoe were on the other foot and the democrats had both the white house and the senate, they would be confirming and trying to confirm right now. if the democrats win, the white house and the senate and have the house, they will change the rules. they will blow up the senate. they have an entire war room working on this. they will expand the number of members of the supreme court, regardless of what the republicans and president trump do, if they get their way. jillian: the real question now is what does the constitution say in situations like this? judge andrew napolitano answers that live, later this hour.

sparks flying on the campaign trail as november 3rd looms closer. todd: president trump slamming joe biden over his far left policies and mail-in voting. jillian: the democratic nominee is pushing back, jackie abanez joins us live. >> candidates aren't holding any punches on the campaign trail. in an exclusive fox news interview, president trump warned of potential election week chaos due to a surge in mail-in voting. the president call out governors. >> take a look at the governors in charge of the ballots, beyond partisan. in many cases political hacks. >> among those states automatically sending out ballots to voteers is new jersey, where cory booker is encouraging voters to let their voices be heard. >> early ballots are going out across this country. we need to win this election. everything is on the line. and that should be in my opinion

the focus right now. >> the president also taking aim at the democratic party's far left policies, calling them regressive. >> we could be -- if that kind of stuff gets put in, we will be -- except on major steroids. >> former vice president joe biden fighting back and accusing the president of dividing the nation. >> this nation needs to come together. donald trump seems to want to divide this nation between red states and blue states. i will not be that president. i'll be a president for the whole country. >> the war of words also heating up over the coronavirus pandemic. biden released this ad during the emmy awards last night. >> i want to know that kids in the united states are not going to fall catastrophically behind because there was no plan and no

leadership. >> well, president trump says democrats are only upset because the coronavirus vaccine is just around the corner. >> they want to denigrate it, this started about three weeks ago because they started hearing rumors that we were going to have this vaccine in super record time. they think i'll get credit if we have a vaccine anywhere near the election. >> president trump will hit the campaign trail again today with two stops in ohio, but first he'll join "fox & friends" this morning at 8:00 eastern time. todd, jillian, i'm convinced that president trump does not sleep. jillian: jackie, thank you. todd: i think you're right. >> he's always going, huh? jillian: yes. todd: a woman accused of sending poison ricin to president trump was arrested at the new york, canada border. the letter was intercepted before reaching the white house. the woman was arrested near buffalo and is expected to face federal charges. her name has not been released. jillian: week two in the nfl.

seattle stopped the patriots in the last play of the game. todd: the ravens offense running wild over the texans for their second win. falcons collapsed in dallas. jillian: i can't believe this happened. todd: d.todd: would you say te greatest on side kick you've ever seen. they rallied from 20 points down, and it set up a last minute game winning field goal. >> good snap, good hold, 46 yards, it's good. jillian: as an eagles fan, that crushed me. todd: cowboys win, 42-39. jillian: tom brady threw for over 200 yards, his wife loved every second of it. she posted this video of her and the kids cheering on brady, with

the caption let's go bucs, let's go papa. todd: i was thinking about our outfits. it's like it's the only color in our wardrobe that didn't represent one of our teams. i can't wear red, white and blue after the giants lose. you lost a lot of green after -- jillian: it was a rough day. the leader of the squad with a message to progressives. >> in november, i'm sorry to tell you're not going back to brunch. jillian: is this further proof of a growing democrat divide. todd: radio host says there's no going back to brunch if the far left takes over. he joins us next. ♪ still your best friend.

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>> i would go forward with the

confirmation process as chairman, even a few months before presidential election. don't vote to confirm anyone nominated under the circumstances president trump and senate mcconnell have created. jillian: joe biden switching his position, now saying he's against the president nominating a supreme court justice before an election. here to react, radio host tony katz. what do you think of the flip-flop there? >> this is standard operating procedure and everybody is doing a little bit of it. it was also president obama who came out and said maybe we should wait in deference to justice ginsburg. first, a woman died and people should remember that, an incredible storied career that ruth bader ginsburg has, agree or disagree with her in her decisions. this flip-flopping is what you expect. andrew mccarthy said it best, this is politics 101. if you read his piece that fox news.com did put owl from national review, this is what

happens. the only thing that matters is that the president of the united states can nominate and the senate can ad advise and consen. that's it. everything else is politics and poll churring. that's a -- posturing. that's what we're seeing right now. this isn't a surprise to anybody who has a cursory understanding of politics at all. jillian: you mentioned everyone is flip-flopping right now. a ton of people on both sides of the aisle are. let's listen to lindsey graham in 2016. >> i want you to use my words against me. if there's a republican president in 2016 and a vacancy occurs in the last year of the first term, you can say lindsey graham said let's let the next president, whoever it might be, make that nomination and you could use my words against me and you would be absolutely right. jillian: lindsey graham sent out a tweet on saturday, saying he will support the presidency and anything used to move forward to fill the vacancy created by the passing of ruth

bader ginsburg. do you think something like this should be political? >> i don't see how you have an option. people will point to justice ginsburg's own words, that she dictated to her granddaughter, that her wish is that she not be replaced until the next president is installed. that takes people in a couple of different directions. one of them is certainly we don't stop, people do pass, and you do mourn them and remember them but the country doesn't stop. we have to keep going. the idea of the four-four possibility in this election season is far more an issue than justice ginsburg's dying wish. i think ted cruz explains it very well when we talk about vacancies that exist where the senate is of a different party than the president, molly hemingway pointed that out as well, a fox news contributor, that when you have different parties, that's when you usually see no confirmations taking place. when you have similar parties, that's when you see the confirmations definitely taking place.

i have no doubt that president trump is going to nominate and i have no doubt that mitch mcconnell is going to move forward on that confirmation and people like susan collins and lisa murkowski, maine and alaska respectively, will have to figure this out right quick. jillian: let's talk about alexandria ocasio-cortez for a second. she had something to say if biden wins in november. take a listen. >> voting for joe biden, i don't care if you like him or not. this is not over. we win in november, i'm sorry to tell you, you're not going back to brunch. we're not going back to brunch. that's not happening. jillian: tony, your thoughts? >> i'm just so glad that the political left is doing so well economically that they can afford brunch, that's number one. number two, the exact same thing could be said but in the opposite. doesn't matter whether you like president trump, you're going to vote for him. we're not going back to brunch because people are rioting,

telling you can't sit in a restaurant and representative owe cassiocasio-cortez aa attace people. of course you have to fight these people that you politically disagree with. she doesn't understand how the rest of america feels. things are different outside of queens. when it comes to the midwest she mocks vehemently. brunch has become dangerous in america and that's silly. brunch should be relaxing and make a lot of people a whole lot of money. jillian: and should contain mimosas if that's what you drink. i didn't know that going back to brunch was a term that you used. it makes you feel old. >> it's arugala all over again. todd: a wild res new the nick -- rescue in the nick of time, intense video as the coast guard saves a group clinging to a capsized boat. ta-da!

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todd: fierce wind battering galveston texas the outer bands of tropical storm zetta reach the coast. jillian: some areas experienced flooding that will only get worse with the expected torrential rainfall. todd: with that, let's bring in janice dean. janice, i mean, we feel so bad for these regions getting hit but we do need to warn them as to what's coming. so what is coming? >> so we do have betta, that's probably going to make landfall later today, tonight, across the texas gulf coast. the good news is the storm is weakening. the bad news is, it's going to be a rain maker because it's moving so slowly. there's the 50-mile-an-hour sustained wind, tropical storm, we do not expect it to become a

hurricane. it's very close to the shore. however, it's moving west at six miles per hour so it's going to bring the potential for heavy rain, along the texas coastline, in towards louisiana. areas that were hit hard by laura and sally, right, over the last couple weeks. there's the latest track as you can see moving very slowly, monday, tuesday, wednesday. it's still around the houston galveston region and then eventually will move closer towards the north and eastward over the mississippi river valley. there are the heavy rainfall totals, 4 to 6 inches. we've had so much rain in the area, a lot of it will be runoff, a lot of it will cause flooding. we have flooding concerns, flash flood watches and warnings in effect for parts of texas and much of coastal louisiana, the greatest risk around the houston, galveston area. hurricane teddy, a power follow storm will transition into an extra tropical low and affect atlantic canada and parts of

maine, although we're not expecting a landfall here in the u.s. so that's some good news this morning. happy monday to you, todd and jillian. todd: happy monday to you. thanks, jd. >> you got it. jillian: your data is apparently safe from china under the new tiktok deal, president trump just okayed with oracle. todd: cheryl casone joins us live with the latest. welcome back from vacation. tiktok is still in the news. cheryl: the president put his stamp of approval over the weekend in a deal that would see oracle and walmart form partnerships with tiktok's owner, bytedance. walmart would take 7.5%. still security concerns linger but secretary of state mike pompeo did address those

concerns yesterday. listen. >> this deal, if approved in the end, will ensure that no american's data has any access to anyone in china that has any capacity to move this to a place we don't want it. cheryl: oracle would host the data for tiktok global. senator marco rubio is still worried about code that could compromise security. the companies need to approve the deal. more news today probably on tiktok because it never stops. jillian: i guess i'm not surprised to hear this, that apparently what you wear when you're working from home affects your productivity and performance. if you're in sweat pants all day are you going to get a lot of things done? cheryl: maybe not. that's what's so interesting about this. there is science to actually the fact that you should dress up to work from home, it's called enclosed cognition, basically what you wear sends signals to your brain. if you dress formally for work,

it leads to higher abstract thinking. if you wear sweat pants below the waist your brain may be confused. what i found so interesting -- i guess this goes to brian kilmeade saying we should all put on pants. well, this is true. maybe dress pants instead of yoga pants or sweat pants. jillian: but the h yoga pants e so comfortable. cheryl: i'm not wearing heels. i'm stopping at that. i haven't worn heels in months. todd: me neither. jillian: it is 27 minutes after the hour. what happens if mail-in voting causes major delays? >> it's going to be mayhem. it's going to be bed lamb. this is what they want. todd: former george w bush speech writer bill mcgern knows a thing or two about hanging chads. he's next. ♪ no matter where you live,

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>> people should go, now if they have an absentee ballot, that's good because you request a ballot, the ballot gets sent to you, you send it back. you have a very good chance that's going to work out just fine. when they dump millions of ballots all over the country, it's not going to work. it's going to be a disaster and they know it. they know it's not going to work. it doesn't even work when you have 30,000 ballots, and we're talking about many millions of ballots. it's going to be mayhem. it's going to be bedlam and this is what they want. todd: a mail-in mess, president trump sounds the alarm on mail-in voting. so what will happen if we don't have a clear winner on election night? fox news contributor bill mcgern joins me now. more than a dozen states are going to count ballots that are postmarked election day. that seems very, very odd compared to previous years. what's your biggest concern

flowing from all of this? >> my biggest concern is that we're getting further and further away from the norm that the american people should know the result on election eve because it's important not only for elections to be fair, but for them to seem to be fair. and i lived 2000. i wasn't working for george bush then but i lived through that and that was a terrible thing for the american people. our system is based on we, the people, making this choice, not unelected people in black robes. todd: is this because of covid entirely or is this a larger push for some other reason to have mail-in voting? >> i mean, that's a good question. look, certainly covid is the excuse. we don't go to the polling station because we're afraid of catching covid. i personally think there are ways, you know, we have schools going back, all sorts of things

happening, i think there are ways to vote that could be safe and the reaction, like in my state one of the things the president was talking about was the unsolicited mail-in ballots. i don't have a choice. we had all the ballots, we're having all the ballots mailed to us. so you don't really have a choice to go there. and if you do go there, they're going to check to see if you're on the list. again, just the potential for chaos. again, back in 2000 florida was one state. now we have several states as you pointed out that are not going to give us the results election eve. the fear is, some of these states like pennsylvania, they're not requiring a signature to verify as you used to have to do, you know, the fear is that in a state with very tight margins as some of these swing states had last time around, you're down 12,000 votes and someone says oh, i can get 15,000 votes and that's the danger. todd: following the death of justice ginsburg, of course a lot of the focus is on what

happens if the election ends up in the hands of a split supreme court. the assumption there is four versus four with the chief justice, who is a conservative, siding with the more liberal justices in that scenario. walk us through the scenario as you see them. >> well, first of all, i don't think we know that. john roberts may have sided with the liberals on certain things but we don't know what the issue is. is it going to be a technical state issue? we don't know. and i would hope that they all have an open mind. i mean, the reality is that unlike after justice scalia's death, we have sort of a five-three mix at the supreme court. so i'm hoping we should get some opinions. but some correct and definitive opinions. but the problem is, again, the potential for mayhem. i think there's an implicit threat of riots if the election is not called the way certain people want and that's really

devastating. mrs. clinton did not help by saying don't concede under any circumstances, any circumstances, including that you've clearly lost. this is really atrocious. todd: i think the reason there's this sort of view that it's going to be four-four is the notion that the chief justice is all about the integrity, integrity, integrity of the court. to your point of, he was appointed by a republican, he is considered a conservative justice. i don't think we know enough right now as to what's going to happen in any of this and that's why we're going to talk about it between now and election day. bill mcgern, we appreciate you being on with us to start that off. thank you, sir. >> thank you. todd: jillian, over to you. jillian: the u.s. coast guard making a harrowing rescue off the coast of florida. you can see them clinging to their overturned boat. the crew members pulled all

seven of them to safety use ago rope line. all are reportedly okay. todd: that's wild. time now, 35 minutes after the hour. joe biden flubbing the facts again. jillian: his latest gaffe on the campaign trail, that's next. >> it's estimatessed that 200 million people have died, probably by the time i finish this talk.

>> the complications from covid-19 which are well beyond what they should be, it's estimated that 200 million people have died, probably by the time i finish this talk. jillian: joe biden makes yet another gaffe about the coronavirus pandemic, saying 200 million people have died, this isn't the first time the democratic nominee has gotten his facts mixed up. last month he said more than 6,000 service members have died from covid-19. the actual number is seven. todd: president trump was quick to point out biden's series of gaffes, including his slip-up on the democratic ticket. >> you said it before, the harris-biden add a medicine strayings, -- administration. who would say such a thing. i've been here for almost four years. i never said the pence, trump administration. who would say what he said.

you would think it's impossible unless there's something wrong. todd: president trump will join "fox & friends first" live this morning in the 8:00 hour. jillian: former nfl player herschel walker is warning about the truth of black lives matter. >> i need to tell the american people all you athletes out there, all you professional teams that's promoting blm, are you telling me that you're promoting someone that are trained marxists. they do not believe in america's ways. jillian: he took the time to defend president trump, asking americans to look at his actions. tv's biggest night providing plenty of laughs for liberals. >> of course we don't have an audience. this isn't a maga rally, it's the emmys. todd: the social media reaction to what some are calling a dumpster fire of an awards show, when we come back. still your best friend.

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>> hi, i'm steve doocy. in 15 minutes we'll kick off "fox & friends first" on this busy monday. straight up at 8:00 eastern time, president trump will join us for his first interview since the passing of ruth bader ginsburg. he will be live with us at 8:00. it's a must-see interview you're going o to only see on the fox news channel. also we'll hear from josh holly from the great state of missouri on plans to move forward with president trump's supreme court nominee, despite pressure from the political left to wait until after the election. and then let the winner of the presidential election figure out who the next supreme court

justice will be. also, house speaker nancy pelosi is not ruling out impeachment as a strategy to block president trump's supreme court agenda. we'll get reaction from newt gingrich. plus we've got lou dobbs, judge janine shapiro and dan bongino and we've got you you. put down that remote. we'll be back with you in 14 minutes. in the meantime, back over to the "fox & friends first" team. todd: the emmys getting political from the very first joke. >> welcome to the pandemies. you know what they say, you can't have a virus without a host. of course, we don't have an audience, this isn't a maga rally, it's the emmys. jillian: carley shimkus has all the reaction from social media. good morning, carley. >> good morning, guys. first of all, a lot of people were confused at the beginning of the show because jimmy kimmel delivered half of his opening monologue to what appeared to be a packed auditorium of

celebrities, then he revealed that the show was just using old footage from previous awards shows and he was actually speaking to an empty stadium when he made the maga rally joke and attacked president trump. this was the most political awards show i've seen in several years. a lot of anti-trump jokes, a lot of celebrities encouraging people to vote. nobody endorsing joe biden specifically but given the context of what they were saying, they certainly weren't encouraging people to vote for president trump which is why there's divided reaction on social media. kathy tweets stop with politics already. nancy said i can't imagine how this was going to work but you are killing it under very difficult circumstances. ron says the emmys have become a soap box for political speeches, they're boring. as with the award awards show, f you're a democrat, you agree with what they're saying, you're going to love it. if you're a republican, you

probably feel like you're being lectured. jillian: regina king accepted with a message. >> have a voting plan. it is very important. be a good human. rest in power, rbg. thank you. >> there she is talking about voting and honoring ruth bader ginsburg. she also paid tribute to breonna taylor on her t-shirt, if you can see it right there. promoting the black lives matter movement was also a part of this awards show. at one point, actor anthony anderson had jimm jimmy kimmel t the phrase black lives matter, he said say it louder so mike pence can hear. social media reacted. i guess now i have to vote since regina king told me to. josh said regina king is the queen of entertainment. todd: jennifer aniston usually knows how to read the room. maybe not so much on this dumpster fire deal. >> you know, these corny jokes and bits are always a part of awards shows.

in this one, jimmy kimmel decided to sanitize one of the envelopes by spraying it with lysol and lighting it on fire and then there's jennifer aniston trying to put out the flames. at one point it looked like it would get out of hand so she had to go back and try to put it out again. i saw some people saying this was soil boleic for how -- symbolic for how the awards show was going, being a bit of a dumpster fire. it's difficult to deliver the jokes without the awe audience o back you up and laugh. todd: there was the spector of the california wildfire situation that i saw some people getting upset about. >> absolutely. jillian: thanks, carley. >> thanks, guys. jillian: a heated battle over who picks justice ruth bader ginsburg's successor, what does the constitution say? judge andrew napolitano joins us live on that, next. todd: what does that guy who walked into the shot say, we want to know. we remember rbg as a trailblazer

and for her famous sense of humor. >> is there any justice on the court who can do more push-ups than you. >> maybe justice gorsuch and i think our chief is also a possibility. [ laughter ] up at 2:00am again? tonight, try pure zzzs all night. unlike other sleep aids, our extended release melatonin helps you sleep longer. and longer. zzzquil pure zzzs all night. fall asleep. stay asleep. people are waking up tog with what's possible with rybelsus®.

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may lead to dehydration which may worsen kidney problems. wake up to what's possible with rybelsus®. ♪ please don't take my sunshine away... ♪ you may pay as little as $10 per prescription. ask your healthcare provider about rybelsus® today. we'll look back and remember the moment that things, for one strange time in our lives, got very quiet. some lost work and invented new ways to get by. others were busier than ever, and found strength they never knew they had. we sheltered with the people who matter most, sometimes finding how far apart we'd drifted. we worried over loved ones, over money, over our planet. and over take-out.

and we found a voice one the noise out there had kept quiet. when the world starts spinning again, let's remember this time where none of us felt secure, and fight for a future where everyone can. because when the world seems like it's standing still... that's the perfect time for us to change it. >> the next president, whoever

it might be, make that nomination. and you could use my words against me and you would be absolutely right. >> job first and foremost is for the president to nominate and for the senate to hold hearings and go through the process. jillian: top law makers backtracking their 2016 positions on filling a supreme court vacancy during an election year. todd: what does the constitution say judge andrew napolitano joins us now. judge, it's awesome to have you here. jillian: good morning. todd: good morning. >> good morning, good morning, guys. it's a pleasure to be with you, no matter what the time of day. todd: we appreciate that look, judge, we saw for flip floppings than on a beach in the summer. we just heard the schumer and graham soundbites. put their flip flops on full screen so the viewers at home can see it. cut through all this noise and there is a lot of noise. what does the constitution tell us to do?

>> well, unfortunately the constitution is silent as to when the president should make the nomination. but the procedure is fairly familiar to americans in the age of cable television. the president nominates the senate judiciary committee investigates. they have the tools of the fbi to help them with the investigation. this is a background investigation into the nominee. the senate judiciary committee holds hearings and then recommends or doesn't recommend a nominee and then the senate votes. that's the problematic issue for the democrats here because the senate is controlled by the republicans and under the current rules, the majority leader senator mitch mcconnell of kentucky sets the agenda. so if i says we're ♪ going to vote on this person, like judge merrick garland because we have a presidential election coming in 10 months justice scalia having died in february of '16 the election between trump and clinton in

november of '16, or he may say oh, no, i don't care. we have an election coming in two months but the president has nominated and we are going to vote. so it really depends on who has the power. but the other thing it depends on is how the american public will view this, todd. will the american public see this as a ramrod or will the american public see this as the president and the senate doing the right thing? does the american public want whoever wins in november to make the nomination if it's president trump and can make the nomination on november 4th if it's vice president biden he can make the nomination on january 20th? or do they want this done now? i think the polls will be key because there are six republican senators up for re-election right now are losing in the polls. they are going to do what they think will help them get reelected. as justice scalia famously said once, the only reasonable

politician does anything is to get reelected. todd: there you go. jillian: could someone say nancy pelosi blocked this by using impeachment? >> well, i think that's absurd and i think that would backfire on the democrats. i don't know what impeachable offense there would be. even if the house voted, jillian for impeachment this afternoon, i don't know that that in any material legal or constitutional way why stop the president from sending a nomination over to the senate. there was talk of that over the weekend and i had to scratch my head where do these people think they are going with this. there is to impeachable offense and even if there were, donald trump is still the president during the impeachment process and enjoys all the powers of the presidency. todd: meantime, judge, pressure is ramping up on joe biden to release his list of scotus nominees. wife do you think biden is slow-rolling this so much? >> well, i can't really get

in -- even though i have known him for years, i can't really get into his head on this. the concept of releasing the list is novel. the first personal to do that was candidate donald trump. as you know, i'm familiar with that process because he sought my advice on some of the people on the list. and it seemed odd at the time but turned out to be very popular. turned out to generate his base. they said wow, this guy is really serious about putting small government people on the court. just look at this list. but, why biden doesn't do it, i don't know. i think he doesn't want to follow trump's lead. he wants to be his own person which would make him consistent with all of the american presidents prior to donald trump. jillian: judge, we have about a minute left here to go. i'm curious your opinion on this. there is a lot at play here and a at stake in this election when you talk about coronavirus, when you talk about the economy.

you talk about what's going on in the streets in our cities. and now this? how much of a factor do you think that this is really going to be, this election, with the american voters? >> you know, tipp o'neal famously once said that all politics is local. i think this is the exception. i think all politics is now national. and i think republicans and democrats certainly party activists will cast their votes on the basis of you who senators running for re-election treat this issue. did they help donald trump carry fill in the blank over the finish line before election day. or did they frustrate joe biden's ability to choose whoever he wants if he gets elected? we don't know how the public will view this. but the polls will be key what the public thinks will be key. jillian: judge andrew napolitano, as always, thank you for joining us and waking up

early. we appreciate it. >> all the best, guys. thank you. todd: thank you so much, judge. todd: remember to set your dvr every morning so you never miss a moment of fox and friends first. >> the president going to be joining the president live in the 8:00ing hour have a good day. >> showdown over a supreme court vacancy. >> if i win this election, i should be the one who tom nate justice combinationburg's successor. >> we are going to move forward. not delay. >> we must use every tool to ensure that this vacancy is reserved a for the next president. >> some have mentioned the possibility the house could move to impeach as a way of installing. >> we have our options. we have arrows in our quiver. >> they just dumped millions of ballots all over the country. it's going to be a disaster and they know it. they know it's not going to work. >> i'm up here all alone. of course we don't have an audience. this isn't a maga rally. it's the