the president nominated judge brett kavanaugh. >> kavanaugh is e perfect mcconnell nominee.e's very consvative on economic issues, on executive power issues. he's the perfect blending of establishment and sort of red-state-based politics. (gavel banging) >> narrator: at the confirmation arings, the democrats immediately put up a fight. >> mr. chairman, i'd like to be recognized to ask a question.ma >> mr. cha it's a pending motion... >> if we don't even know what the rules are, how c.. >> i'd like to respond to... >> mr. chairman... >> mr. chairman, we waited for more than a year with a vacancye on the s court. the treatment was shabby of merrick garland, president obama's nominee... >> democrats are really mad about garland that happened in 2016, very recent history. >> people see through this.re >> republicanstill mad about bork. >> to my friends on the otherlo side, you can' the election and pick judges. p if you want k judges, you better win. >> this stf is now intensely polarized and super-partisan. (gavel banging) >> narrator: and as the republican-led hearings underwa

it was condos who demanded a correction and got one from kavanaugh. talk about the significance of that and how rare that is. incredibly sloppy. supreme court justices have clerks for a reason. they are supposed to be factual in analysis and not only was brett kavanaugh wrong on the merits of this wisconsin case, he was factually inaccurate. he said, for example, states like vermont had not changed their election procedures in response to covid when impact vermontas sent ballots to all registered voters to make it very easy to vote by mail, which is the kind of thing that the trump campaign is opposing. i belve that brett kavanaugh's opinion was a form of election interference. he was trying to delegitimize the counting of votes. the most disturbing part of his opinion in addition to the factual errors was when he sa that votes counted after election day could lead to suspicions of impropriety. that is simply not true. every single state counts votes after election day. both are not certified until at least a week after the election in nearly every st

chief justice roberts: justice kavanaugh? justice kavanaugh: good morning. you forcefully argue there is too much uncertainty, that the dispute will become a concrete article three controversy when we asked for the president to transmit the statement. i want to button up some things on that to make sure we are on the same page, follow up on what justice kagan was asking you. sayingf all, you are not as a judicial review, not now, not ever, you are just saying not now, as i understand it. but as justice breyer indicated, the posture this will change after the president transmits the statement and there is question about injunctive relief against the president. so i think you are saying that we can't assume, as the court has before, that the president what comply by a declaratory judgment requiring him to transmit calculations that include those noncitizens living unlawfully within the country if we were to issue such an order after the president transmits the statement. is that accurate? general wall: yes. justice kavanaugh: your argument for waiting is based

chief justice roberts: justice kavanaugh. justice kavanaugh: good morning, general wall. justice breyer rightly points out u.s. code has a lot of precatory language in it. my understanding catches his on that -- matches his on that point. to the extent the mandatory language here might be different and unusual, which was my question earlier. suggestsis question why not just construe this link which is being similar to those precatory provisions that are strong about the u.s. code, -- strewn about the u.s. code. can you respond to that? in nfib said court the essential feature that allows for the construction is it raises revenue. once congress eliminated that, i think they cut out the basis for the savings instruction and you have the word "shall." it is the most naturally read as a command in all these other statutes. i think the court would have to extent or stretch nfib further than the court went. mr. wall: with respect to the -- justice kavanaugh: you make a forceful argument it is not justified under the commerce or taxing or necessary and proper clause is, at least

chief justice roberts: justice kavanaugh. justice kavanaugh: good morning, general mongan. to pick up on individual suppose questions, congress passed a law requiring every american who lives in a house to fly an american flag in front of the house. there is no penalty. the question then is individual standing. under lujan, you are the object of the regulation as a homeowner. it is a forced acquisition of an unwanted good or service. why is and that enough to give you -- why isn't that enough to give you standing knowing some people are going to do that simply because congress requires that? general mongan: i think if there theory was identical to what the individual plaintiffs advance here, simply that we are actively complying with this and it is causing us harm, that would run into a similar problem with the polling of -- the poe line of precedent. we are not disputing that plaintiffs can try to advance those types of theories of injury. on the cboanaugh: report just as gorsuch mentioned, do you disagree some people will follow the mandate and purchase insurance solely b

ted kavanaugh to rally the troops he literally was the ringleader.i was on the cnn anniversary alumni call in honor of the 40th anniversary i forgot to mention is part of the reason the book came out when it did because it just happened. and to hear the reference and the adulation all these years later, 40 years later was magnificent. and was a commanding force and got everybody motivated at a time they really weren't sure it would work. he wasn't even sure. it was magnificent to see the respect they gave him that was delayed. they never had a chance that was a privilege to witness that. so ted went on - - ted kavanaugh started cnn and part two which became known as headline. so many books afterwords from the time i chose to stop because there was no why and cnn to and ted kavanaugh story about the formation is fantastic and after that he went and did special projects and investigative reporting so he wasn't there a terribly long time, but every single person along the way who interacted with him is a memorable person i am honored and privileged to h

. >> justice kavanaugh. justice kavanaugh: thank you and good morning. i want to follow up on justice's alito's questions. i understand it, philadelphia contracts with about 30 private foster agencies defined to train and support foster families, and css is just one of them, as i understand it. second, if a same-sex couple ever came to catholic social services, they would refer that couple to another agency that works with same-sex couples so that the couple could participate and be foster parents. third, no same-sex couple has ever come to catholic social services for participation in this program, and therefore the policy has never actually denied any same-sex couple the opportunity to be foster parents in philadelphia. i just want to make sure those three facts are accurate and you can elaborate as you see fit. ms. windham: that is all ms. windham: that's all correct, justice kavanaugh. and that demonstrates, first, that css is not going to prevent any same-sex couple from being able to foster in philadelphia. there are many other agencies out there.

kavanaugh. justice kavanaugh: mr. shapiro said we shouldn't analogize this situation to lock it in the death penalty context but rather desperate brother atkins and ford and consider this -- a finding of some kind of not just a process that considers youth as a factor. that raises the tension that justice kagan was identifying in montgomery. i think what she was getting at is that the key paragraph in montgomery that says no finding effect is required is in tension with the conclusion that miller was a substantive rule. if that is true and you have made an attempt to reconcile it and i think you made a good point on that, suppose that is true and we have to fall the paragraph in montgomery or the implication of the teague conclusion to say that that paragraph is wrong in montgomery or back away from it. why should we not just require a finding of facts that the defendant is permanently ncorrigible? ms. nobile: i think that is llusory. finding that the defendant is incorrigible ignores much of miller, and is also not a

ted turner or ted kavanaugh rallies the troops and literally was a ringleader.was on a cnn anniversary call and an alumni call in honor of the 40th anniversary which i forgot to mention is part of the reason the book came out when it did. it just happened. to hear the reverence and adulation for ted all these years later, 40 years later was magnificent. i knew the people revered him and i knew that he was this commanding presence and commanding force but he basically got everybody motivated at a time when they really weren't sure that it was going to work. he wasn't even sure it was going to work. it was magnificent a few weeks ago to see people and the respect that they gave him that were delayed. they never had a chance to thank him before that was a real privilege to witness that. basically ted went on to start, ted kavanaugh, went on to start as cnn two which is ahead headline, another huge legacy of his for sure. you know, that whole book in itself and to the person who asked before when i left out there are many books "after words" from the time that i cho

when it came to kavanaugh, who i have known for 20 years, mr.arrison cheered on the destruction of this good man. he has said publicly, one of the main reasons he got into the race was because of the way i behaved. one of the main reasons i'm going to get reelected is because i stood up for justice kavanaugh. people in this state are fair-minded. we are a bite of centerstage, we don't want a little supreme court, no matter what he says tonight. the people in charge of the democratic party -- he is the associate chairman of the national democratic party -- have in mind changing the court to make it liberal. don't be fooled. mr. harrison: senator graham, for i'm a democrat -- i am a democrat -- before i'm a democrat, i'm a self-care lien. before that, i'm an american. i believe in the constitution, in this entity of the building you work in. when i see that dome lit up at night, i get goosebumps because i know the power that that place has to improve the lives of folks. it can give the american dream to so many and it has. this is the thing. justi

this is justice brett kavanaugh. seem fairly clear the proper remedy would be to sever the mandate provision and leave the rest of the act in place, the provisions regarding pre-existing conditions and the rest. amy: we will have more on the supreme court battle over the affordable care act later in the broadcast. in north carolina, democratic senate candidate cal cunningham has conceded to incumbent senator thom tillis. the republican's victory guarantees the gop will control at least 49 senate seats, two shy of a majority. in alaska, republican senator dan sullivan has a big early lead over democratic challenger al gross, whose campaign believes he still has a chance at an upset victory once all mail-in votes are counted. either way, the balance of power in the senate will be decided by runoff elections on january 5 for both of georgia's senate seats. the trump administration has removed the top scientist overseeing the government's research on climate change. "the new york times" reports michael kuperberg was told

both justice kavanaugh and justice barrett to an extent have suggested that they might think that youto sink this entire law if this one part is invalid. again, they could -- john roberts at this very tumultuous time in america is going to try not just to get a majority this time but i suspect he will try to pick off at least two other votes so that it's 6-approximate or 7-2 to uphold it. jim, i really do think that the court is going to try to figure out a way to uphold it. >> wow. >> because this challenge is actually very weak. very weak in terms of -- go ahead, poppy. >> i was just going to say on that issue, it is interesting and aren't there two key questions, is there even standing by these attorneys general who have brought it, can they even show harm, right, because there's been no tax implication since that's gone, and b, severability. haven't there been conservative justices that say you can sever off part of a law and keep intact the rest. >> it sounds like a stodgy principle but it's the key to this case and chief justice john roberts and justice kavanaugh both wrote last

thank you. >> justice kavanaugh? justice kavanaugh: good morning. what if catholic social services were the only private agency in philadelphia that performed the service? meaning that same-sex couples in philadelphia simply could not become foster parents? let's also assume there are no exemptions or other statements that are relevant to the analysis. in that circumstance, would there be any different analysis or result in a case like this? >> yes, i think it would be a significantly harder case because the city at that point would have an interest that is not presented here, namely the interest in ensuring that gay couples in philadelphia would have the opportunity to serve as foster parents. of course, that is not the fact we have here. the facts in this case is that there are dozens of foster agencies available to serve gay couples in the city of philadelphia. there is no evidence that any gay couple has ever even tried to use css as its agency. hand, what philadelphia is doing does not even help gay couples. what it is doing instead is harming

that suggests that maybe she is with roberts and kavanaugh but it's really hard to tell how a case willld be weeks, if not months away, from a decision. >> thank you. >>> we want to get you back to breaking news. president-elect joe biden slamming president trump for refusing to accept defeat and calling it, quote, an embarrassment. while insisting the transition is well under way. that's next. ity of phoenix, students with relevant life experience and eligible transfer credits save on average $11k and 1 year off their undergrad degree. see how much you can save. - i'm szasz. $11k and 1 year off their undergrad degree. [norm] and we live in columbia, missouri. we do consulting, but we also write. [szasz] we take care of ourselves constantly; it's important. we walk three to five times a week, a couple miles at a time. - we've both been taking prevagen for a little more than 11 years now. after about 30 days of taking it, we noticed clarity that we didn't notice before. - it's still helping me. i still notice a difference. prevagen. healthier brain. better life. >> tech: every customer h

those judges are the chief justice, john roberts, as well as brett kavanaugh who was appointed by donald trump. those two judges are basically saying that the focus of this case, which is on the penalty of the individual mandate, basically saying that even though that penalty has been zeroed out, meaning if you don't get health care, you no longer have to pay a penalty. they feel if that art of the law might be unconstitutional, they feel like the whole law should not be struck down because of that detail, insisting also that in 2017 when congress voted to strike down that penalty to bring it down to zero, their intention was not to throw out the rest of the affordable care act, and therefore, they should not as a court replace the intention of congress. if this holds true, there are going to be deliberations. we won't know the actual result until the end of the spring of 2021. the line of questioning and what we heard in those hearings seem to indicate that justice roberts and justice kavanaugh could vote with the three liberals, meaning it would be five-four possibly in favor of the af

so i think that, as i was just saying to justice kavanaugh, you don't get to a balance of the harms in this particular case because it's a government contracting case, and all you ask under nelson is whether the government's rule is reasonable. but even if you did get to that and even if it were relevant whether there were third-party harms, as i was just describing, we would say there are serious governmental harms and there are also private harms. we've talked about people being turned away in philadelphia, and the amicus briefs tell you they're turned away elsewhere. but, remember, there's also a deterrent effect. if people are aware that the government program allows scrimination, they may never enter thpool in the first place. there's no brochure that tells people, yoknow, this agency prefers peoplof this -- of your kind and these other agencies prefer people of the other kind. and, frankly, if there were a brochure in that respect, it would just make it all the worse. i wanto sneak in other qution. i think weould agree that there's ally not any circumstance we n think of in which

>> justice kavanaugh i do not. butnd same-sex couples was turned away and the caution i would get a view to rely on this idea is remember, we don't know how many agencies will discriminate against sex sexual orientation or religion or other characteristic. i don't think the court accounts of how many agencies thinks they are discriminating on what basis. that is a difficult area to get into. >> i agree arguably the response maybe we should not be looking for problems before we confront them. >> fair enough but remember even to get to this question because this is a government contracting case they said and nelson are asking the government's position that is reasonable one is to treat all equally carrying out the government's own program in the and then to have a managerial interest have to start granting exemptions now running a program to the government is very hard and then to say to corporate i don't think anyone disputes that once you have it. on - - admitted this then it seems very odd tooonclude to insist on

justice kneel gorsuch, amy coney barrett or justice kavanaugh. he seemed to side with the democrats. even if it's declared unconstitutional, that would not mean that the entire aca should be invalidated. it all comes down to sever ability. kavanaugh weighed in. >> it's hard for me to argue that congress intended for the entire law to fall down when they didn't try to repeal the rest of the act. i think, frankly, that they wanted the court to do that, but that's not our job. congress knows how to write a new severability clause and that is not the language that they chose here. >> reporter: now this all comes down to the decision that congress made in 2017 to put the f penalty at zero dollars. that doesn't make it a tax. s she continues to keep people guessing. this affects millions of americans, whether it's the 20 million that have gained coverage through obamacare or those who have benefitted because they have pre-existing conditions, are still on their parents' insurance until age 26. a lot at stake and the supreme court likely won't issue a d

that was what kavanaugh said. chief justice rob said a similar point.enalty it's the same terminology, but they're basically saying if that's the problem they can sever that, get rid of it and the affordable care act, the body of it including the provision to cover pre-existing conditions can remain, and then it would be up to congress to make it work in some fashion, to fund it the way it needs to be funded. >> well, and the chief justice said something even more interesting. he said i think they wanted us to strike it down, but that's not our job. it was a pretty -- it was a pretty telling and somewhat snarky comment aimed i think principly at the trump administration and republicans in congress who try to repeal this act over and over and over again and failed. >> i think they tried 50 plus times or something like that and roberts is just saying this is your job not ours. thank you for being with us. npr's legal affairs correspondent and a supreme court expert. thank you. >>> do you know what you're doing for thanksgiving this year? what are you goin

justice kavanaugh said he tends to agree that even if some parts are invalidated, others would stand.hen you heard that, did you breathe a sigh of relief? >> well, i know enough about the court to know nothing is over until it's over. i think people will be on pins and needles until the decision is rendered, which might not be until next june. and we're in the middle of open enrollment, so i hope people don't forget to sign up for health care under the affordable care act. people qualify for a tax credit to help purchase that coverage. please don't let the court argument stop people from actually purchases the health care they need and covering themselves and their family. i think it would be shocking if the supreme court did what congress clearly did not do. congress left in place the entire affordable care act when they zeroed out the individual mandate. that was in 2017. and the law has survived very well since then for almost 2 1/2 years. so to make the argument now that if the individual mandate is gone, the whole law has to be struck down, and it's something that congress did no

but at the same time, he was not necessarily going to go as far as justice kavanaugh.e same time, he wasn't with the liberals. he was kind of searching for a middle ground. and you had the other more conservative justices who are ready to go ahead and say the state can't impose the restrictions. so this could be sort of a glimpse into the future of the supreme court, as far as how the lineup is going to look in years to come. >> maybe the new kennedy, maybe the new kend danedy. >> yeah -- okay, thank you. >> no, say it. >> one other thing that was also very interesting in the chief justice's opinion he really wanted to try to play a little bit of a peacemaker. he sort of called out justice gorsuch who wanted to make sure that the chief justice said that he thought the colleagues were acting in just as good faith as the conservative ones. that they may see things differently, but they're acting in good faith. they're just reading the constitution differently. they want what's best during the pandemic and for religious institutions as well. perhaps trying to bring some g

>> reporter: the chief justice john roberts and justice brett calf kavanaugh could be the two justicesp in to save obamacare. they both made the point that it doesn't seem congress intended that the entire should be struck down if one was deemed unconstitutional and exactly the point that republicans are trying to make. they say because the individual mandate's penalty for not purchasing insurance is now at zero dollars, that it is no longer a tax, therefore, unconstitutional, and they say that means the entire act is unconstitutional but chief justice john roberts said it is not the court's job to strike down the entire law. we will see if it holds in this very high stakes decision. >> the newest justice amy coney barrett is known for having taken an issue previously with the past supreme court ruling on obamacare. what did he say today? >> reporte >> reporter: she seemed to carefully craft our questions and holding her cards closed' not giving anything away but she questioned whether congress would pass a part of the law that would kill the entire law. she seems to be the side of the

brett kavanaugh quoted it recently in one decision.ut it has not been, the supreme court has not cited it as the basis for a ruling. so it has not been a precedent the supreme court relies on for its decisions. >> two days after the 2020 election we have two candidates in close races and none has achieved as of the time we are taking the requisite 270 electoral votes. on election night the sitting president announce at 2:00 in the morning he would ask the let's listen to what he had to say. president trump: this is a fraud on the american public, this is embarrassment to our country. we were getting ready to win this election, frankly, we did win this election. [cheers and applause] president trump: so our goal now is to ensure the integrity for the good of this nation. this is a very big moment, this is a major fraud on our nation, we want the law to be used in a proper manner so we will be going to the u.s. supreme court, we want all voting to stop. we do not want them to find any ballots at 4:00 in the morning and add them to the li

one voting rights expert slammed kavanaugh for adopting a "trumpian mind-set." meanwhile, many voting rights groups are now urging voters to drop off absentee ballots in person instead of relying on the u.s. postal service to deliver them in time due to cutbacks implemented by the new postmaster general louis dejoy, a major supporter of president trump. in other voting news, the texas supreme court has backed republican governor greg abbott's order limiting ballot drop box sites to just one per county. muslim communities around the world are denouncing french president emmanuel macron's public backing of caricatures of the prophet muhammad, accusing macron of attacking islam. macron made the comments during a vigil for a french teacher beheaded outside his school earlier this month. the teacher had previously shown his students a cartoon of muhammad. protts against macron have erupted across bangladesh, otherine, iq, and predominantly muslim nations. meanwhile turkey, qatar, kuwait, and others are demanding a boycott of french products. the united nations is war

justice kavanaugh weighed in. >> i think it's hard to argue that congress intended for the entire lawll if the mandate were struck down when the same congress that lowered the penalty to zero did not even try to repeal the rest of the act. i think, frankly, that they wanted the court to do that, but that's not our job. >> reporter: this all comes down to the decision congress made in 2017 to put the penalty for not purchasing insurance at zero dollars. republicans are arguing that it no longer makes it a tax and it is therefore unconstitutional. justice amy coney barrett questioned whether congress would do intentionally something that would kill the entire law. she seemed to carefully craft her questions to keep supreme court observers guessing about how she might rule. this is a decision that will affect millions of americans, whether it's those 20 million that have gained coverage through the aca or those who have benefitted because they have pre-existing conditions, for example are still on their parents' insurance. there's a lot at stake. the supreme court won't issue a decision

when it came to kavanaugh, who i have known for 20 years, mr.cheered on the destruction of this good man. he has said publicly, one of the main reasons he got into the race was because of the way i behaved. one of the main reasons i'm going to get reelected is because i stood up for justice kavanaugh. people in this state are fair-minded. we are a bite of centerstage, we don't want a little supreme court, no matter what he says tonight. the people in charge of the democratic party -- he is the associate chairman of the national democratic party -- have in mind changing the court to make it liberal. don't be fooled. mr. harrison: senator graham, for i'm a democrat -- i am a democrat -- before i'm a democrat, i'm a self-care lien. before that, i'm an american. i believe in the constitution, in this entity of the building you work in. when i see that dome lit up at night, i get goosebumps because i know the power that that place has to improve the lives of folks. it can give the american dream to so many and it has. this is the thing. justice is su

chief justice roberts: justice kavanaugh? justice kavanaugh: thank you, mr. chief justice, and good afternoon, mr. fisher. picking up on justice gorsuch's question there at the end, and following up on questions from earlier, one of the concerns, i suppose, are government employees, financial employees, or health care company employees who have access to very sensitive, personal and i appreciate if you could give us a sense of federal statutes that you think would cover such disclosures, if any. i take your reference to state statutes. are there any federal statutes that you want to identify that would cover that situation? >> i would start with page 19 where we cite a federal statute which prohibits obtaining classified information and using it for an unauthorized purpose. and others involving social security information. and there is trade see creates statute that was passed. it circles back to the justice buyer question. they knew how to do so. those are the ones i would highlight. the government tried to use the wire fraud statute and that would be availa

kavanaugh's opinion was also riddled with incredibly lazy errors he favorably quoted a legal scholarlly arguing in favor of the extending postmarked deadlines repeatedly confused receipt deadlines with submission deadlines, and wrote that other states, such as vermont by contrast, have decided not make changes to their ordinary election rules which is not true. vermont decided to mail a ballot to every registered voter and authorized ballot processing 30 days before the election to speed up vote counting oh, no is this one of those classic, i like beer situations if you want to know what vermont's up to, just google it. or sit quietly in your office and wait for bernie sanders to yell about it. "everyone in vermont gets a ballot and a sticker i don't like the sticker because it leaves a residue on my good shirt. this is the gop's con. slow down mail service, limit the number of drop boxes then, claim ballots that arrive late are invalid for example, texas governor greg abbott limited drop-off locations for mail-in ballots to one per county meanwhile, republicans in pennsylvania block

and we have to look at judge kavanaugh's opinion, appointed by president trump.augh's opinion in a wisconsin voting case talking about election day mail-in deadlines. and in part, he wrote this -- to avoid the chaos and suspicions of impropriety can ensue if thousands of absentee ballots flow in after election day and potentially flip the results of an election, this was his opinion attached to a 5-3 ruling against the deadline extension in wisconsin. should folks be worried about this opinion from justice kavanaugh if, in fact, this were to go up to the supreme court? >> no. so that's language that the justice was using in another context. essentially at this point if the trump campaign wants to bring some sort of lawsuit before the u.s. supreme court, it has to follow the same basic structure as any other lawsuit. the campaign would need to identify a cognizable claim which it has not done so far. it would need to have evidence to support that claim, which again with respect to the vast majority of claims the campaign is bringing they lack any evidence at all t

. >> and brett kavanaugh said much the same, chuck. >> and, obviously, it's brett kavanaugh is the fifth justice here, if you are looking to find five votes to keep this law intact. three liberals, roberts who has been there before. kavanaugh is the fifth in this case. the swing justice. >> right. during her confirmation hearing, everybody thought amy coney barrett would be the key to this. but it appears from the argument that she won't be. >> sure does. pete williams covering the court for us as always, sir. thank you. >>> up ahead -- the fallout from the news that broke just as we were coming on the air yesterday. president trump's firing via tweet, of course, of the secretary of defense. what does it mean for our national security in the final months of the trump presidency? is there something more nefarious going on, and are more firings on the way? water? why?! ahhhh! incoming! ahhhahh! i'm saved! water tastes like, water. so we fixed it. mio. >>> welcome back. nbc's ken dilanian reports president trump's firing of mark esper is raising fears that trump will fire other key national

. >> the affordable care act, john roberts, brett kavanaugh, they won't strike down the entire aza. >forward case for severability meaning we would excise the mandate and leave the rest of the act in ways. >> hard to argue congress intended the entire act to fail if the mandate were struck down, when the same congress that lowered the penalties a 0, did not even try to repeal the rest of the act. >> what do you see happening? >> i don't see enough votes to do away with the affordable care act. it could be that they have votes with brett kavanaugh and amy coney barrett, to sever the individual mandate from the rest of the law. expanded medicaid coverage won't be eliminated. the time is 18 after the hour. the majority of trump voters say they voted for the president, most biden voters say they voted against donald trump. kristin tate says the entire election had little to do with the president-elect, joins us to explain. >> senate republicans closer to keeping their majority after tom tillis wins in north carolina. now allies on georgia. we have the balance of power. ♪ when you switch t

justices, john roberts and brett kavanaugh, seem not inclined to strike down the entire law. lawsuit focuses on this provision that requires people to buy insurance. that used to be backed up by a tax penalty. it no longer has that tax penalty. opponents of the law say that provision is unconstitutional, and because it is, the entire law has to be thrown out. two key justices don't seem like they will go there. vonnie: that is the only part of the law that is up for discussion. there is no such thing as talking about whether the individual mandate went away, whether the whole thing would collapse or not. greg: they argue the individual mandate has to fall, and then therefore other provisions have to fall, like protection for pre-existing conditions, and because of that, the entire thing including the expansion of medicaid, the marketplace is set up, that is the argument to strike down the entire law. but it seemed pretty clear today that there are not the votes to do that. vonnie: chief justice roberts has voted twice to uphold parts of the law. do we know how amy coney barre

appellate court judge brett kavanaugh. to try to swing the court even further to the right.nation. >> started off rather predictability. but then a woman by the name of christine blasey ford came forward. >> i told mcconnell and others i wouldn't advance his nomination unless we heard from dr. ford. >> i believed he was going to rape me. i tried to yell for help. >> former arizona senator jeff flake. >> brett kavanaugh, he acted as if i think i would have acted had i felt that i had been unjustly accused. >> i'm here today to tell the truth. i've never sexually assaulted anyone. >> down the street at the white house, trump fired off a shot of his own. >> this is a big con job, and schumer and his buddies are all in there laughing, how they fooled you all. >> following a week long investigation that critics of kavanaugh thought was too brief -- >> charade. >> sham. >> bullies. >> we'll call the roll. >> kavanaugh was confirmed to the u.s. supreme court by a two-vote margin. >> the nomination of brett m. kavanaugh is confirmed. [ applause ] >> another victory for trump, anothe

if he can bring kavanaugh along with him, fine. wait for the next time the republicans try to kill it, and, you know, a year and a half. >> i point out one of the most visible effects that would happen if they did, they were successful at overturning aca, insurance companies would once again be able to discriminate against people with pre-existing conditions. which would certainly delay my own surgery. and impacted -- >> trump has 70 days to unveil his health care plan. we should look forward to that. 70 days to tell us how he'll protect us. >> and cbs news, lesley stahl a binder full of nothing purporting there was a new health care policy and we have yet to see it. just like d.j. jimmy, out here going like this, where is it? where is it? haven't seen it. thank you so much. don't go anywhere. stick with plea. a l me. a lot is happening in the country, people keep asking, are is elly? >>> up next, the latest on this pro-trump anti-reality protest going on in d.c. right now. i'm so confused that's happening. so stay tuned. g. so sta

>> no questions. >> justice kavanaugh? >> good morning. i want to follow-up on my understanding of how this plays out in your view. if the process was good and my understanding is that you can't raise a different eighth amendment argument that the individual sentence was still disproportionate. the answer is that the process is what leads to the as antionality at least eight amendment matter. in the grace versus georgia context, we have set proportionality is required but achieved in two ways. one, the rollout of the death penalty or life without parole for certain classes of offenders. thendly, we require sentencer consider the relevant mitigating and relevant circumstances. , i want to make sure your answer, if the process considers relevant circumstances, is there a separate argument as an eighth amendment matter someone could make that they applied all the relevant factors but i think it is disproportionate? >> i think the way to think about it is to compare it to the federal regime. you can bring a procedural reasonableness but then a

republicans, confirming amy kony barrett -- amy coney barrett was gaining senate seats, over brett kavanaugh. is republicans narrow the gap they will argue against any broad mandate for joe biden. so far the republicans have won 200 one house seats and are leading the race for 13. democrats have 218 and beating three. a total of at least 12 seats. welcome to fox news at night. richardson looking at the state of affairs one week after election day. >> reporter: mike pompeo promising a steady transition in the state department as their are concerns the delay in transfer of power could impair national security. the details of the secretary's proposed transition were a surprise. >> is the state department preparing to engage with the biden transition team and if not at what point does it delay hampering a smooth transition pose a risk to national security? >> there will be a smooth transition. we are ready. the world is watching what is taking place. we will count all the votes, we're in good shape. >> reporter: president-elect biden has field calls from leaders of the united kingdom, canada, fr