coming up. the supreme court justice stevens announcing he will retire. >> supreme court justice stevens announced the retirement. >> sure to be a messy confirmation battle for the white house. >> we will have analysis. >> the president, with all the vast nuclear experience he acquired as a community organizer, and all the experience, still for accomplishment to date. >> last i checked sarah palin is not much of an expert on nuclear issues. >> a testy exchange between sarah palin and the president. but who is right as far as the controversial new nuclear policy? >> we have already had our daughter murdered and now we

have this attack. and the vile protesters set their sites on a 20-year-old student brutally murdered. we will tell you how the community is fighting back. you are about to enter the no spin zone. we begin right now. >> i am reporting tonight for bill o'reilly, thank you for watching. prepare yourselves for a supreme court show town and that is the subject of the talking points. when supreme court justice stevens announced the retirement today conservatives were sounding demoralized, some think it is a done deal president obama will get the second nominee confirmed before the fall. perhaps. but here are a few things for conservatives to consider: first, the balance of the court

is not going to change since stevens, an activist, will be replaced by another activist. and here is what president obama said today about the qualification he will look for in the new nominee. >> i will seek someone in the coming weeks with similar qualities, an independent mind, a record of excellence, and integrity, a fierce dedication to the rule of law and a keen understanding of how the law affects lives of the american people. second, the confirmation process could be a major boone to republicans, polls showing on climate change and health care, republicans are winning. the public believes the government is out-of-control and we need to get back to personal responsibility, fiscal restraint, and a strong adherence to the constitution. so even if they cannot block an obama nominee they have the opportunity to debate competing

views and the constitution, a chance to steal the spotlight and just as paul ryan was the health care congress map, some senate republican will be the "go to" person during the hearings of the constitution. whoever it is, he or she should use the hearings to highlight current constitutional challenges to the new health care law. obama's nominee must be asked the following question: is there any meaningful limit on congress' power under the commerce laws? congress used the commerce law to justify the recent health care power grab. and now is not the time for conservatives to start pouting but time to work for a constitutional renewal that our country so desperately needs. now the top story, reaction with us an old friend, a law professor at george washington university and author of "the supreme court, the personality and rivalries that define america." and the senior political

reporter from abc news. gentleman, this is exciting. always an exciting her when the nominations come up. jeff, which way do you think president obama will go here? >> he can choose a nominee would will delight the left lie wood, or someone would will make the right happy, and could support garland or down the middle. so he has to choose. >> rick, jeff said cagen is straight down the middle. i love that because she in my mine, unless she is friends with conservatives, she was dean of harvard law school, put up all the fuss of the military recruiters coming to harvard because of don't ask, don't tell and i nine that another judicial activist. she is a friend of president obama, a close friend, don't you thing she is the odds on favorite? >> i think that is someone that president obama is comfortable with but he has been through the

process not too long and this short list will be similar. they were not blind sided at all by this and president obamast think of these things on a personal level as someone would lectures on constitutional law. he has firmly held views and they can make this happen quickly. >> i am centering on cagen because she was nominated to be the solicitor general of the united states with literally no litigation experience. now, why did he choose her to be solicitor general of the united states with for litigation experience? a first year associate would have more experience than she has? why would he put her there if it were not a steppingstone to the supreme court of the united states? >> he chose her because she is respected by conservatives and liberals as a fair mined great lawyer. at harvard, people like goldsmith from the bush administration --. >> but friends do not define judicial outlook.

well, she can be nice, but he is a judicial liberal, obviously, president obama, so you expect him to pick a judicial activist or judicial liberal, and she is one. >> she is but the notion of activism, you are right, the hearings will focus on whether there are limits to congress' power. >> boring old commerce clause. republicans will argue that the courts should strike down stuff that congress passed, doing what they accused liberal of doing for 50 years, running to the court when they have a political dispute on health care, on financial reform, campaign finance. we disagree about the meaning of activism but it will be tough to say the nominee that they will promises you will strike down the laws we just passed. >> their argument is the actual meaning of the constitution has been perverted and the power to regulate come mrs. means anything, and if it means anything you have to define what it means.

that will be interesting. >> though question but only thomas buys that argument,. >> rick, patrick leahy said i hope this will be a self discourse. and i remember what was said about justice alito and all the concern on that but he is clearly worried the tea party activists are going to get on to this and it will be a circus. >> that is right. the political context is different than a year ago. the first nomination of president obama happened right after the inauguration and the republicans were trying to figure how to read as a party this a time of obama. they had a firmer feeling about that and the tea party activists among others, are engaged the last year and they will be engaged this time. the tone will be different. even than last year where sotomayor was never seriously

this doubt. there were questions of the number. no matter who he chooses we will see more bitter, more divided debate and part of this is an election year, with a benefit on both sides to getting a lot of this. >> and i mentioned what conservatives should take heart in, the fact that conservatives love the constitutional arguments, they love having the big discussions of the role of government. and rick touched on something: the movement, the tea party movement, the movement of independence, is about substantive issues and this will be a substantive -- it will be in july again -- is that likely? it will be in a weird way even if the republicans block the nominee, probably not, but politically it could help for november. an interesting situation. >> maybe this will not be about abortion and what we have done for 30 years. these guys have written about congressional power and kagen has a broad view of the executive power and there will be a few debate. >> if he wants to be poald he

could pick who? >> wood would make liberals happy, she is an old south, not warren-style -- game marriage. or bold by picking former politician, governor napolitano. >> janet nap -- napolitano, supreme court justice? that would make my summer. are you listening, president obama? >> what about leah ward, former georgia supreme court, african-american woman and also pretty outthere,-out there? i am throwing out the names. >> will be this a hot july situation here? >> oh, my, question. there is a lot of pressure to get this done quickly so congress can move on. this will just block out any

other action. that is all we will talk about for quite some time. >> president obama with biting words tore sarah -- for sarah p.

>> in personal stories, the war of words over the white house' new controversial nuclear policy. here is what sarah palin said on fox news. >> that is like getting out there on the playground, a bunch of kids ready to fight and one says, punch me in the face and i will not retaliate. do what you want. >> president obama shot back when abc news asked him about the credit u.s. >> i v no response to that. last i checked sarah palin is not an expert on nuclear issues. if the secretary of defense and the chairman of the joint chiefs of staff are comfortable with it, i'm probably going to take my advice from them and not from sarah palin. ouch. and the governor kept it going. >> now the president with all the vast nuclear experience that he acquired as a community organizer and as a heart time

senator and as a full time candidate, all that experience, still no accomplishment to date with north korea and iran. joining us from new york is a columnist for the "washington post" and sally i am watching this thinking if i am sarah palin i am loving this, the president of the united states took the b.a.i.t. and responded to what she said the other day on fox. why would he do that? >> it would be helpful if she could learn how to pronounce nuclear. >> beyond the petty pronunciation. >> you can argue it both ways. one could say he would have been better not to engage with her, because she is loving every second of it because the budget has come back at her and now she goes back at him. on the other hand, you could say that he sort of putting her in a

category with a lot of kooks and being engaged with ahmadinejad and that is not great company to be with. so it goes both ways. >> you see the president recently, sally, he went after rush and talked us about talk radio appealing to the extreme and he went after sean several times and it seems not very presidential, you will always be criticized. president bush was criticized. ty president will be criticized from the other side and the best thing is do what he said, i will not comment on that. but let me tell you what i will say and he says i will not comment on that and he says she has no nuclear experience and of course he had no nuclear experience and became president of the united states. >> i thought last year when they boycotted fox that was a mistake

and they all agreed at the white house when they decided that was not the best way to go but in terms of nuclear experience this whole issue is so sophisticated and so complicated and i think one of the things that sarah palin tries to do is to simplify things and she is turning this into a butcher -- dumper sticker and it isn't. obama has left wiggle room so we could actually respond in a nuclear way if we had to, if we were attacked. that's not what they want to do and certainly not what they plan to do but when he is talking about thought -- not wanting to respond with nuclear attacks even though we are attacked by a country that signed a nonproliferation treaty, if they attack us with biological or chemical weapons, and i think that's very smart to say we're not going to hit back.

because when you use nuclear weapons you are talking about something so much bigger that it not only impacts the country attacking you, but --. >> and a poll that came out two days ago asked about the nuclear question and you can say what you want about sarah palin if you want to but she is closer in what her sense is of nuclear weapons than this administration. the poll question after poll question which the machines think the nuclear arsenal is very important to our security, do not want to take options off the table including the thiewk -- the nuclear option and that is what sarah palin, what she was expressing. when someone criticized the president he sticks his chest out and, to what end? he is the president of united

states. you get criticized. >> i think that you are right about that. but it does seem to me that she doesn't have a grasp of the issues and i think if people who really to know about it and have studied --. all which issue? >> the issue of nuclear proliferation. >> i can list many, john bolton, have serious reservations about what the president is doing regarding nuclear policy. would you say they are smart? >> some of them, some of them aren't. >> which on that list aren't smart? you will get yourself if big trouble? brooks or bolton? >> all great guys. nice guys. but ronald reagan was very much to favor of curbing nuclear proliferation and he is a great hero of sarah palin but you are right the polls show people do not understand it and the obama

administration . >> i think they understand more than you give credit for. >> for one thing, they have not taken the option of nuclear weapons off the table. they have said . >> sally they need to do a better job of explaining a lot of things given where he is in the polls. directly ahead, president obama's approval rating as i said hit an all-time low and we give you the stats and a baptist touch have a new target, you will not believe what they are doing today. those reports are coming up. ♪

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>> in the unresolved progress segment, president obama on the road. the latest poll puts the job approval rating at an all-time low at 43 percent approving and

48 percent disapproving. and handling of the economy, only 42 percent of voters approve of the performance and 53 percent disapprove. now, concerns of the president are certainly on display at the southern republican leadership conference happening in new orleans this week. >> the president of the united states, the most radical president in american history, has now thrown down the gauntlet to the american people. he has said, i run a machine, i own washington, and there's nothing you can do. >> as we sit here today the obama administration is putting us on the path to decline. >> whether we are talking about foreign or domestic policy, the agenda defies logic. and defies common sense. and it will be leading us to more terror and under the form

of big government. >> and you know that is rough stuff this new orleans. >> first question, i have been asked before, is president obama a socialist, and i say, whatever you call him, what he is doing for the country is ruining and it is not -- is that the right way to go, use the brand and brand him socialist? >> i don't think -- it is not working. what is worked is arguing on the merits. what really works is drawing a contrast. here's what you get with president obama on your health care. here is what you could have gotten if they went down a different road to deal with different things. >> what is the biggest democratics -- democrats' problem going ahead for the summer?

>> people in america wanted them to work on jobs. they failed to convince people that health care reform would turn into jobs. it has in the. and the other vulnerability is implement station of the health care will drip, drip, drill, when people rely it is not free. your taxes go up. and you cut medicare advantage? drip, drip, drip. it will not get easier. the benefits they tried to market to people do not happen until 201 so that will be a weight on their ankles for the election. >> is it a vul they arability of the republicans they do not -- vul they arability of the republicans they do not have one figure who can carry the water on some of the big debates? people speculate, romney, huckabee, they were thought in new orleans and what does that mean? >> that does not bother me. i saw president george h.w. bush who said he saw this over the years when a party leaves a white house there is a period of

competition and i think the competition in the party is good. who do we like? who makes sense? a combination of ideas could work for now. i am not worried about that. >> cheney has been out there and throwing gasoline on the fire and i like that, but where do you see the fault lines right now in the conservative movement? social conservatives versus foreign policy conservatives? the tea party folks disrupting it? >> the tea party thing is probably what is most interesting for people. on social issues, the three elections that happened last fall, and in january, virginia, new jersey, and van, -- and january, the democrats tried to payment the republicans as crazy conservatives against modern society and it did not work. the country is conservative on those issues but if you go to the first question of what is the biggest vulnerability, the

polls show the number one concern for people is jobs. and they are not focusing on jobs. if they have a supreme court nomination it will suck up all the objects -- oxygen. >> what does that mean for july? they hope for progress on immigration reform. >> those issues are not something that help you get more jobs. i am not saying the government can create jobs but they can create a condition for it and they will move toward november 2010 with weight on their ankles and have a problem on the health care. >> we were talking about the president's criticism taking asked questions by george stephanopolis what people are saying, do you sense the same thing, that up like former president bush who let stuff role off his back, president obama gets his chest sticking

out. >> we come at things from different approach from a communication standpoint. if i were he i would ignore the question of sarah palin and talk of the substance. why they continue to engauge her or vice president -- to engage her, or the vice president, they must have polling that shows the last wing likes that but it does thought play well. >> petty. >> it does not show him in the best light. >> let it roll off your back. >> and we would like you to vote in the question, would you favor military action to prevent iran from acquiring a nuclear weapon, yes-or-no? ñyyup> it was a horrible feeling, like i couldn't catch my breath.

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congress. i always serve the people of the first district but i have chosen not to continue to serve as their congressman. >> a poll released this week shows 28 percent of voters think congressional incumbent deserve reelection. that is not great thursday for anybody trying to keep their office this november. joining us now from houston is republican strategist and from chicago, democratic strategist. and now we will start with mark, because i am thinking well, does this mean there is for room in the democratic party for a pro life democratic like stupak? if it were a republican "moderate," announcing republican after a bruising legislative battle that would be the media spin that it is a small part of the republican party and now a pro life democratic who was popular is calling it quits. >> on the contrary, the democratic leadership from nancy

pelosi to the white house has been clear they would like stupak to remain, this was a personal decision. he actually believes, has to believe, that this is going to be an incredibly difficult, uphill fight for him coming into november after the tea party express blows $250,000 into your district how are you competing with that? he saw the writing on the wall, did he not? >> there is absolutely no doubt. like or hate your congressman or woman they know their district, lawyer -- and he got elected in 2008 with 69 percent of the vote, and polling said he was in the 30's, for way to crawl out of that hole and he voted against his morals and constituents and they are speaking lout and clear right now and he is headed for the hills, though doubt. he has no chance to win and that

is why he is resigning. not seeking reelection. >> and the conservative base clearly abandoned stupak after the vote. and he knew he could not win. what do you conclude a as a democrat for the other pro life democrats would voted for obama care, would you be surprised to we saw more retirements down the road? >> we have seen plenty of retirements on both sides of the aisle, six republican senate candidates would retire or not seek reelection so far and plenty on both sides. this is a year we will see a lot of change. >> why do you thing he retired? he never made hint every -- ever ready to retire. well he can claim an interest in spending more time with his family. >> are you kidding me?

>> a son committed suicide and perhaps you have not experienced that kind of thing in your family. >> so you think that's why he retired? >> i think he is leading on top and he helped pass health care and 30 million americans will be insured who were not ensured before. >> the public does not want this law. >> i think they do. >> what poll are you looking at, i am looking at different polls. i am looking at polls that are devastating -- fox thursday poll, chris, maybe i am reading the polls wrong. >> it is about how the poll is worked. >> no, no, no. >> do you like the law, yes or no? >> his constituents did not want this. you are talking about a fairly conservative district, the first district in michigan did not want this. though doubt about it. the guy got elected in the high 60's the last two runs.

there is though doubt he left the morals and constituents, hard working michigan citizens are needing jobs and the real unemployment is between 25 percent and 30 percent and he is shoving health care down their throats. he had zero chance to win. try and get an elected official out of office and like getting a cat out of tree, not easy. he is running for the hills, the first of many and this will come true in november. >> my question is, is he going to get a job in the obama administration, and was that ever discussed before he announced? i just wonder. wonder. we appreciate it. >> one other question --. >> we are out of town.

you've got to try it,

>> thank you for staying with us. in the culture war segment, we have been telling you of the court battle between the westboro baptist church and the family of a marine killed in iraq. they picket because they hate gay americans and they think the united states is being punished by god. now, we do not want to draw attention to their cause, we hate to do that, but they are beyond contempt and what we want to share an uplifting story from the virginia tech campus where a small group of westboro protesters showed up to say the school was cursed and they were met by 350 counter protesters. remember, 32 people were killed on that campus by a gunman in 2007 so they have been through a lot. more recently, a 20-year-old

student was found murdered this january. her pains reacted to the westboro protests. >> we were blind sided by this. we have already had our daughter raped and murdered and now we have this post-mortem attack. >> it is not right that i have to seek a poster and have, in print, comments about my daughter, that are not true. >> joining us from virginia, two students who organized the counter protest. brandon and mathis. gentleman, good to see you. mathis, how did you get the idea? >> well, i was made aware that the protesters were coming to virginia t.c. by -- virginia teh

by a professor and i got in touch with the student body graduate assembly and we put the word out, had a meeting with the group of like-minded victims on our campus and made a decision among -- there was a lot of arguing and a lot of bantering about what, exactly to do -- we made a decision to put a positive message out into our community at the time that the protesters is were going to be here. we endeavored to provide a positive and encouraging message to the community and i think we did. >> what did you do? hold signs? have a prayer vigil? what happened? brandon? >> well what we did, we decided, how do we turn something negative into a positive and we made it into a positive rally and decided to try to take the

press and the message away from the counter -- from the protesters and on to the positive impact, the positive community effort, i guess, so people held signs and some were saying, embrace your neighbor, embrace life, more positive. we have been through a lot in the community and how can we come together and get through something. >> did you have any interaction with the westboro protesters, any moment where you talked to them or they talked to you? how close were you to them? >> we stayed as far away from them as we could without being removed from the area in which they were. so. no, we wanted the attention away from them as much as we could so all of our interaction was with each other, student body, and the community. >> what is amazing, the westboro

folks, three adults and three concern, and it seems like from the reports the children were younger than 10 years old which given some of the things that are on the signs are amazing. and now, you are graduate student would have been through so much, the campus has been through so: right, i'm a graduate student. >> i'm undergraduate. you look wise for your young years. brandon, the campus has been through so much with the shootings a few years ago and now the horrible abduction and the father of this victim saying, why us? why is this happening? my heart goes out to the family, to the parents, the father who said, this is a post-mortem attack on us after what happened to our daughter. and your heartbreaks for them and have you had any contact

with her parents? >> i have through e-mail briefly. he just wanted to say he was going to be there but mathis spoke to him today. >> i spoke with him and although i can't speak for him, he seems to be encouraged by the community of the students that were there. >> what makes virginia tech so special is the fact that we put into relationships more than we receive and we embrace that. so we were there to support his family, as a community. and that's, that was encouraging for him and the people that were with us. >> nice way to turn a bad situation around, guys. thank you very much. >> thank you. >> still to come al gore splits with the white house.

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>> and the follow-up segment, there is debate over president obama's offshore drill be ban being lifted, 73 percent of americans approve of some offshore drilling but environmentalists al gore is not on board. the "hill" is reporting that al gore and his group are critical of the decision marking the first time the former v.p. has split with president obama on a policy issue. with us, is the research director for public citizen energy program. now, tyson, you are blogging crazy about this, thought crazy,

but all over this, right? this is fascinating. president obama and vice president al gore are buddies on most policies, they like each other, and this is something they look at the same. this is a significant break, if al gore's views are what they are. what is your take on what president obama has done and what does al gore split mean? >> al gore is not alone in the criticism of the decision to lift the ban because the problem, this is not enough oil there to make a significant dent in the amount of imports we bring in or in gas prices. the department of energy looked at this in 2009 and found keeping the moratorium in place would only raise gasoline prices by three cents a gallon than if we tapped into the oil because the united states only has 1.6 percent of the world oil, a little puddle in the sea of oil,

so to we tap into that and dump it into the sea of oil it will not make a difference. >> many said before everyone is too happy about this, conservatives were critical saying he is not going to renew certain leases in alaska at the same time so there is a bristol bay offset here and so it will not necessarily be we are doing this offshore drilling but missing a huge piece of the puzzle from conservatives. so the polls align more closely with the american people and that is another wrinkle. you must have been happy about bristol bay? >> remember, although there are jobs created when you do offshore, there is also a lot of jobs this the commercial fishing industry which is what bristol bay is about, a massive area of salmon fishing so if you like --. >> why do you think -- what do you think the alaskan people want? >> the folks this bristol bay want the salmon industry preserved.

ten coastal senators wrote a letter --. all including lindsay graham and lieberman? >> they are talking about trying to do it as part of a compromise but there are other coastal state senators that say we have commercial fishing and we have tourism that is threatened by this, and early this week --. >> isn't what he did pretty limited? it is not as open ended as it was originally portrayed and although it is polling well, it is not as bad as it could be, is it? >> it is limited. we have to remember --. all you to to the want any, do you? >> we want to make sure to there is offshore oil drilling we take into account environmental issues. >> the environment automatic is affected. >> this week a pipeline from an oil facility in the gulf spilled into a refuge and we have to remember, oil companies have not been paying their fair share of royalties. >> the oil companies do not pay

their fair their this taxes and individual whose work in the oil industry, they are not paying their fair share of taxes. what is right share of taxes for the oil industry? >> i like to see if an oil company is ex-tracked oil and gas from land occupied by the men membership they ought to be paying royalties tore doing so. >> you want to shut down oil and gas? >> we need oil and gas . >> but you would like it to go away tomorrow? >> they need to look further out there and this is a small amount and the coil companies are not paying their fair share -- and the oil companies are not paying their fair share. >> the taxes. the taxes. the al gore thing is interesting. and check out the factor on monday night and we caught up with al gore and you will not want to miss this. út@@@@p@

. in the back of the book segment tonight. the factor has been reporting on this devastating case of the 15-year-old girl who hanged herself after enduring severe bullying at her massachusetts high school. six students have been charged with violating phoebe's civil rights. the massachusetts legislature has approved a tough anti-bullying measure. not everybody thinks that's a good idea. joining us from boston author of the book three felonies a day. harvey, this was a horrible case. devastated community, no doubt. the state legislature comes along and by a vote of i believe it was 148-0, only with three hours of debate comes up with this anti-bullying measure. what is wrong with the measure, first? >> well, first all we don't need an anti-bullying measure

in massachusetts. the fact that we have statutes that cover this kind of behavior is proven by the fact that these kids have been indicted. so the question becomes since the law works, this law that is hundreds of-years-old by the way, harrassment laws, stalking laws, very old statutes that are well understood here in massachusetts.mç# what is the doing legislature doing trying to pass new laws which are incomprehensible. i've tried and read them several times. i'm a lawyer this is my field. i don't understand what is being criminalized by this 12 pages of single space verbiage. >> repeated use by perpetrator of written, verge or electronic expression or physical or directed at the victim that causes physical or emotional harm. as you said, it is horrible, horrible situation. but there are criminal laws on the books. to me this is a typical

reactive posture on the part of the state legislature. apparently wants to look like it is doing something and justifying its existence, i guess. what are we going to outlaw next, spitballs and gum chewing? horrible thing but there are criminal penalties that are in place and presumably will be working. >> yeah. well, first of all the !!,sayih of massachusetts [ inaudible ] this proves it. because we really do have a well understood body of law as to what the line is between normal kind of you know, juvenile even ugly behavior. and criminal stalking. criminal harrassment. there are old concepts that really do work. i read them, i don't understand them. vague statutes is the bane of any justice system.

>> the schools are going to be required to report what their anti-bully curriculum consists of, right? they are going to have all these new reporting requirements. i think this is aimed at moll fighing the concerns of parents who are -- at mollifying the concerns of parents who are saying you are not doing enough. other people are saying what are the parents doing to monitor space book, texting, cell phone use and the friendships their children are having. to me, the last thing that is going to make it clear is another state law piled upon criminal laws that are already on the books. >> it is even worse than that. one of the provisions in the bill -- by the way the conference committee is going to be meeting shortly to try to coordinate the house and senate bills and the government -- the governor said, the governor doesn't know yet what is going to come out of conference committee, yet he said he's going to sign it. the problem is even worse than

criminalization, bad enough with using vague language that nobody understands. but what really gets me is they're providing for the training of teachers and principals what bullying is. if you become the principal of a high school and can't recognize bullying, you should be fired. >> it is nanny state gone wild to make them feel better. i appreciate it very much harvey thanks for being with us. that is it to for us today the factor continues 24/7 on bill o'reilly.com. don't forget check out my website laura ingraham.com follow me on twitter, facebook and you can sign up for the daily fix. i'm laura ingraham reporting for bill o'reilly tonight. he will be b