Scalia on the type of person Judge Amy Coney Barrett is

This is a rush transcript from “Fox News Sunday" September 27, 2020. This copy may not be in its final form and may be updated.

BRIT HUME, FOX NEWS HOST: I'm Brit Hume, in for Chris Wallace.

President Trump selects his Supreme Court nominee just days before his first debate with Joe Biden right here in Cleveland.


DONALD TRUMP, PRESIDENT OF THE UNITED STATES: Today, it is my honor to nominate Judge Amy Coney Barrett.

HUME: The noted judicial conservative nominated to fill Ruth Bader Ginsburg's seat. This hour, we're joined by Labor Secretary Eugene Scalia, who knows Barrett from her days clerking for his father, the late Justice Antonin Scalia.

Plus --

SEN. CHUCK SCHUMER (D-NY), SENATE MINORITY LEADER: Justice Ginsburg must be turning over in her grave up in heaven.

HUME: We'll ask Michigan Senator Debbie Stabenow about Democrats strategy to slow the process, and get reaction from Senator John Kennedy, a key member of the Senate Judiciary Committee. Then --

PROTESTERS: Health care for everyone!

HUME: What will the likely shift in the courts make up means for issues central to Americans lives?

We'll discuss that with former independent counsel Kenneth Starr and Harvard Law scholar Laurence Tribe.

And our Sunday panel on how the nomination battle could upend the November election.

All, right now, on "FOX News Sunday".


HUME: And hello again from FOX News in Cleveland. We are live on the campus of Case Western Reserve University and the Cleveland Clinic, the site of the first debate between Donald Trump and Joe Biden, moderated by our very own Chris Wallace, who is preparing today.

The Supreme Court vacancy, President Trump's third and his selection of Judge Amy Coney Barrett as his nominee add a new twist to Tuesday night's debate.

We'll begin with FOX team coverage. Mark Meredith is at the White House and Jacqui Heinrich in Wilmington, Delaware.

Let's start with the latest on the president's Supreme Court pick and what we know about the timeline for a confirmation process -- Mark.

MARK MEREDITH, FOX NEWS CORRESPONDENT: Brit, President Trump hopes to fire up his base with his new Supreme Court nominee but with Election Day fast approaching, the White House knows getting Judge Barrett confirmed by the Senate will be contentious.


TRUMP: Is a very proud moment indeed.

MEREDITH: Late Saturday, President Trump made it official. He is nominating Seventh Circuit Appeals Court Judge Amy Coney Barrett to the Supreme Court

TRUMP: She is a woman of unparalleled achievement, towering intellect, sterling credentials and unyielding loyalty to the Constitution.

MEREDITH: Barrett, a favorite of the conservative establishment, is a practicing Catholic, graduate of Notre Dame, and former clerk for the late Justice Antonin Scalia.

JUDGE AMY CONEY BARRETT, SUPREME COURT NOMINEE: His judicial philosophy is mine too. A judge must apply the law as written.

MEREDITH: Democrats are outraged Republicans are pushing Barrett's nomination forward just five weeks before the election after Republicans blocked President Obama's nominee Merrick Garland for the same reason in 2016.

Senate Minority Leader Chuck Schumer says Democrats are concerned with Barrett's record on abortion and religion.

SCHUMER: I will strongly, strongly, strongly oppose this nomination.

MEREDITH: Two GOP senators say they will not vote in the nominee before the election but the majority of Republicans appear ready to hold hearings, and Senate Judiciary Committee Chair Lindsey Graham says his committee will hold four days of confirmation hearings beginning the week of October 12th.


MEREDITH: The president told reporters last night he thinks Barrett's confirmation will move fairly fast and as he believes a confirmation vote, Brit, will happen before Election Day -- Brit.

HUME: Mark Meredith reporting for the White House, thank you, Mark.

Now, let's turn to Jacqui Heinrich, who is covering the Biden campaign in Wilmington, Delaware.

Hi, Jacqui.


Joe Biden hopes pressuring vulnerable Republican senators about health care amid the pandemic can stall the confirmation process.


HEINRICH: Joe Biden is hedging his bets on coronavirus fears, warning of Judge Amy Coney Barrett is confirmed and the Affordable Care Act is overturned, complications from COVID-19 like lung scarring and heart damage could become the next deniable pre-existing condition, writing: Barrett has a written track record of disagreeing with the U.S. Supreme Court's decision upholding the Affordable Care Act. She critiqued Chief Justice John Roberts' majority opinion upholding the law in 2012.

Democrats hope the threat of retaliation from angry voters could persuade Senate Republicans in tight races to push the vote past election day and Biden is offering the election-year standard the GOP set four years ago as a way out, urging no action until after November 3rd.

Biden is resisting talk about nuclear options like court-packing if Judge Barrett is confirmed, instead turning the focus to President Trump's refusal to commit to a peaceful transition of power if he loses.

BIDEN: What I do -- am concerned about is whether he generates some kind of response in a way that unsettles the society or causes some -- some kind of violence. The last thing we need is a -- you know, the equivalent of a coup.


HEINRICH: Biden was slated for a light schedule as he's been heavy into debate prep, including mock debates with an advisor playing the role of President Trump. But early this morning, he announced surprised remarks on the Supreme Court vacancy coming up later this afternoon -- Brit.

HUME: Jacqui -- Jacqui Heinrich reporting from Wilmington, Delaware, thank you, Jacqui.

Joining me now is our secretary of labor, Eugene Scalia.

Mr. Secretary, thank you for joining us today.

EUGENE SCALIA, SECRETARY OF LABOR: Brit, thank you, it's a pleasure.

HUME: Let me start, I know you know Judge Barrett going back a number of years. And I wanted you to just give us quickly how you would characterize her. What kind of person is she?

SCALIA: Well, she is a beloved teacher, a very respected scholar. I think she has shown herself to be a thoughtful jurist. And she's just a wonderful, warm, admirable human being as well. Mother to seven, mother to school-age children. She is a very impressive, delightful person. I think the American people as they come to know her are going to find her very admirable in so many ways.

HUME: Let's get to the question of her record then. We're now -- it's now becoming clear, at least at the outset, that the issue on which she will be challenged by Democrats is health care and particularly the Affordable Care Act, which is coming up for action by the Supreme Court at some point in the near future. The assertion is being made that she is likely to vote not to uphold the act and therefore put an end to it. What do you make of that claim?

SCALIA: It's a red herring, Brit. I think it reflects --

HUME: How so?

SCALIA: -- a bit of frustration on the part of the Democrats on how they might attack her nomination. She made a comment about the Affordable Care Act decision a number of years ago before she was a judge. It was a comment that a number of people made at the time. It's not a question that will be before the court in the case that's coming up. And there's absolutely zero reason to believe that Judge Barrett is somebody who has -- does not have the views about the importance of health care.

As I said, she's a working mother to school-age children. She is the mother to a child with disability. The suggestion that she is opposed to health care is absurd.

HUME: All right, well, let my drill down a little bit farther on that question about the comments she made. What did she say about the Affordable Care Act? And I guess it was about John Roberts's decision in the case to treat the Affordable Care Act's penalties as a tax. What about -- what did she say exactly that you think is not likely to lead to a decision one way or the other?

SCALIA: I believe that she made the observation that it appeared that the chief justice had bent over backwards to twist the language of that statute to save its constitutionality. That was a criticism that a number of people made at the time. By the way, it was something that other people praised the chief justice for. A number of people said the justice did the right thing by, in their view, going out of his way to save the statute.

So it was a very common view at the time. I think the most important thing to know about Judge Barrett's jurisprudence is that she will go where the law takes her. Her view of judging is that any personal views she may have on health care or any other matter you can name is not relevant to determining what Congress wrote and what's in our Constitution. Her authority derives from those documents. She understands that and she will follow the lead of the Constitution and its original meaning and the text of what Congress wrote.

HUME: I understand that the issue that will come before the court is whether the Affordable Care Act, with its tax or penalty, now were zeroed out, so there's actually no actual monetary penalty for not having insurance. With that out, then how can it stand as a tax, correct?

SCALIA: I believe that's the question, Brit, but again, we're talking about --


HUME: Well, while -- let me just interrupt you --

SCALIA: -- an extraordinarily qualified person with a great record of achievement. And there's no single case by which you should judge her qualification for the court. She will be addressing cases for years, probably decades.

HUME: Understood, but let me just push you just a little farther on this, if you don't mind, sir. If she believes that the idea that it was a tax, as articulated by the chief justice, was kind of far-fetched, why would we not then believe that when the issue came before the court with the tax zeroed out that she wouldn't then say that the constitutional basis for demanding or ordering people to have health care, mandating health care -- health insurance, I should say, is unconstitutional?

SCALIA: Because by the very fact that the tax no longer is there, the question whether it's a tax or not is moot, it's gone. It's a totally different case, Brit. And, again, the fact that this is being raised shows that the Democrats are casting about for anything by which they might seek to oppose an exceptional nominee.

The other thing I expect we may hear about is her faith, which, as you know, was something she was attacked for last time. The Democrats embarrassed themselves when they did it. But they've done it with other nominees. We had a nominee of the president to a court a little more than a year ago who was attacked for being a member of the Knights of Columbus, which is a Catholic organization, has existed for more than a century. And Senator Hirono of Hawaii and Senator Kamala Harris both attacked this man for being a member of the Knights of Columbus, which is just a Catholic organization that accepts Catholic faith.

So I think we will see all manner of criticisms, but it can't change the fact that she really is --


HUME: Well, speaking of --

SCALIA: -- a wonderful person and exceptional nominee.

HUME: Well, very quickly then, speaking of organizations, she has said to be a member of a group called People of Praise, which is a kind of ecumenical Christian group, exists in many countries, has a number of members in this country. What do you know about People of Praise? And do you have any idea of why people seem so afraid of that?

SCALIA: Well, it is, as you said, a Christian group that has spread about the world. It's one of any number of groups that Catholics associate themselves with to deepen their faith, deepen their spirituality, serve others. It has been suggested that because she's a member of this group she may have a submissive view of women's role in society, which is ridiculous.

This is an incredibly accomplished scholar, a teacher who won the best teacher award three times at Notre Dame Law School. She has done amazing things. It's actually quite insulting to suggest that she has a submissive view of women's role in society, quite sexist. And by the way, that's not what her critics are worried about. They are worried not that she's meek and mild, but that she's a very thoughtful, articulate, learned judge who will be, I think, a wonderful addition to the court.

HUME: Mr. Secretary, thank you very much, thanks for joining us today.

Up next, we'll speak with two members of the Senate about the upcoming confirmation process of Judge Amy Coney Barrett, as "FOX News Sunday" reports from the campus of Case Western Reserve University and the Cleveland Clinic, ahead of the first presidential debate.


HUME: Senate Republicans have laid out a speedy confirmation process for the president's Supreme Court pick. But Senate Majority Leader Mitch McConnell has not said whether a final vote will come -- become before or after the November 3rd election.

So, joining us now is Democratic Senator Debbie Stabenow of Michigan, who will be one of those obviously with a chance to vote in this nomination.

Senator Stabenow, very much -- very nice to see you, ma'am.

Is there any chance you might vote for --

SEN. DEBBIE STABENOW (D-MI): Good to be with you. Good to be with you, Brit.

HUME: Thank you. Any chance you might vote for this nominee?

STABENOW: Well, Brit, first, let me say, congratulations to Amy Coney Barrett. This is always in honor of course to be nominated to the highest court in the land. So I want to congratulate her for that.

For me, this is all about in the middle of a health pandemic, once-in-a- lifetime health pandemic, and it's very clear from her writings, multiple writings that she will be the vote that takes away health care for millions of Americans, including people -- 130 million people and counting with pre- existing conditions.

And, of course, those are going up every day because of the health pandemic.

HUME: Right, let me stop you if I can --

STABENOW: So I'm deeply, deeply concerned about that.


HUME: Let me ask you what specific writings you are citing that would mean she would definitely be a vote not to uphold the Affordable Care Act?

STABENOW: Well, I think your questioning of former guest, Secretary Scalia, makes it clear when she was laying out her criticisms of the court for not essentially repealing it sooner.

And, you know, Brit, what's most important here we know that President Trump and Senate -- and Republicans have been trying to repeal the Affordable Care Act since they took office. The Congress said no.

And so, this is the last chance, you put someone on the Supreme Court that will do it and that even though people in Michigan didn't want the law to be repealed, they want their health care, and I would say that the response has got to be to put a president in who's going to protect and strengthen their health care.

HUME: I hear you, Senator.

Let me just say -- let me just follow up on that a little bit further if I can. The remark that I mentioned to Secretary Scalia was one in which he had commented in passing, critically, of John Roberts' determination that the penalties afforded under the Affordable Care Act for not carrying insurance amounted to a tax and not -- not just a penalty. That viewpoint, by the way has been widely criticized.

And now that the tax penalty has been eliminated, there's no tax at all, what makes you think that that remark would lead to her naturally and automatically, inevitably voting not to uphold the Affordable Care Act?

STABENOW: Well, Brit, it's called common sense. The number one priority of the president of the United States, Donald Trump, has been to take away people's health care and they've been trying actually for ten years, even before President Trump -- by the way, with no replacement. They want to take it away.

And he certainly has given every indication that he wants the Supreme Court to act in the favor of the case that he has supported.

He has helped to bring this case to the United States Supreme Court.

Does anybody really think -- you know, common sense will tell you, he's going to put somebody on the court who has given all kinds of clues and writings about this issue. And I tell you, the people of Michigan are really worried.


HUME: I can understand, but you say all kinds of clues. What other clues other than this remark that was cited in my interview with Secretary Scalia? What other clues, Senator?

STABENOW: She has -- well, we will lay all of this out in judicial -- judiciary hearings. And I don't want to get -- debate all the legalese back-and-forth with you today because I think there's a bigger picture here, which is people's healthcare.

And I do have to say from a Michigan perspective, we have people right now just holding on. You know, over 200,000 people have lost their lives.

They are holding on and they're saying, why aren't you focused on another COVID package that's going to help my family keep a roof over our head and food on the table and help our small businesses be able to open safely? And please help us with our schools. We -- we can't get the testing support, the other things we need to open the school safely, and my own family trying to juggle Zooming for a kindergartner and a third grader.

And so, instead of dealing with right -- what's right in front of people right now that is causing them real pressure, what we have is a rush to judgment to put somebody on the court that's going to take away people's health care. Brit, I just don't get it.

HUME: Well -- well, I understand your view. Let me just say if you wanted (ph) -- by virtue of the fact that you just congratulated Judge Barrett on her appointment, may I take it that you therefore believe it is legitimate for the president to have made the appointment?

STABENOW: Well, we know this, it certainly legitimate for him to make nomination. We also know it's clear in the record in the Senate that between July and November of a presidential election year, there has never been a confirmation of the United States Supreme Court justice. Never. Either party, never happened.

We are right now in the middle of voting in Michigan. We're already voting. We're being asked to vote four days before Election Day on whether or not a nominee will go on the court with a very high likelihood of overturning their health care, taking away their health care protections -- right when they're voting between a president who wants to do that and a nominee, Vice President Joe Biden, who said very clearly he's going to protect and strengthen their health care.

And, by the way, if we have a Democratic Senate, we're going to join him in making sure that happens.

HUME: Senator Stabenow, very nice of you to take the time with us today. Thank you very much.

Now let's turn to a member of the Senate Judiciary Committee where those hearings will take place, Republican Senator John Kennedy of Louisiana. Welcome back to Fox News Sunday, Senator. Nice to have you.

SEN. JOHN KENNEDY, (R-LA): Thank you, Brit. Nice to be here.

HUME: Now let me get your reaction -- we can now see, I think pretty clearly, the outlines of the case, at least a big part of the case is going to be made by Democrats against Judge Barrett, which is that she will be an inevitable vote to strike down the Affordable Care Act as it now exists.

What's your reaction to that?

SEN. KENNEDY: Senator Stabenow is my colleague and I consider Debbie a friend, so I say this gently, sell crazy somewhere else, we're all stocked up here. Unless Debbie is clairvoyant, I don't think she knows how the nominee is going to vote or any other member of the United States Supreme Court.

But Debbie makes the point the difference between Democrats and Republicans, in terms of the role of the Supreme Court, my Democratic friends think the Supreme Court ought to be a mini Congress, they're politicians without robes, they don't even need to hear cases. They already know how they're going to vote. And that's part of the problem.

That's not how I view the appropriate role of the Supreme Court. And I don't think that is how it operates. You're going to see a lot of evidence --


-- accusations -- sure.

HUME: Senator, let me just ask you this --

SEN. KENNEDY: Go ahead.

HUME: -- about the very process and the fact of the nomination. You, of course, were around when the nomination was made of Merrick Garland and the Senate simply refused to take it up in any way.

And the case was made by Mitch McConnell, the Senate Majority Leader, that the American people this closest (ph) in an election year, which that was, back when President Obama nominated Judge Garland, should have a say in a Supreme Court nomination made that close to an election.

Now it seems that the roles are reversed. A president has made a nomination. It is an election year, indeed it is very close to the election, and the view, and the other Republicans are prepared to move forward with this, in -- which is, distinct, obviously, from the course you took just four years or so ago. They are being accused of hypocrisy and double standards.

How do you answer?

SEN. KENNEDY: Well, let me finish my last point first, to Debbie and my colleagues in the Senate. I hope they let us have a respectful process. We don't need another freak show. I mean, I hope they won't get into the foothills of KiKi (ph) and bring back Michael Avenatti and all that other stuff. Let us focus on the nominee.

Now to answer your question, I'm rather fond of the Constitution. I have read it. Its provisions about filling a Supreme Court vacancy are unaffected by the electoral calendar.

I realize that on both sides, Brit, there's been a lot of circumlocution and attempted Churchillian rhetoric about the president to be followed during an election year to fill a vacancy.

Here's as best as I can tell, here's the rule. When the Democrats are in charge of the process, they do what they think is right, consistent with the Constitution. When the Republicans are in charge of the process, they do what they think is right. And I think that's what our founders intended.

I think our founders intended elections to have consequences and when they send people to Washington of a particular party, they expect them to represent their voters. And I think that's been the tradition and the precedent.

HUME: It appears from a constitutional point of view that you are spot on with that. The Constitution certainly doesn't say anything, as you point out, about the electoral process in terms of the appointment of confirmation of Supreme Court justices.

But would you not acknowledge that what we have here is a serious case on both sides on this issue of shoe on the other foot disease?

SEN. KENNEDY: Sure, absolutely. And that's why I say if you -- in Washington, as you know better than I do, Brit, you have to watch what people do, not what they say. And if you watch what has happened, in the history of ever, I don't think there's ever been another instance where when the Democrats were in charge they didn't do what they wanted and when the Republicans were in charge they didn't do what they wanted. Consistent with the Constitution.

Right now we have a Republican president, we have a Republican Senate. If that shoe were on the other foot, then I can assure you Senator Schumer would do what the Republicans are doing right now.

As I said the other day, if you don't believe that, you probably peaked in high school.

HUME: So you're hoping, as I'm sure others are as well, that we will have something other than what you called a freak show in this, but there is some real history here, the Kavanaugh nomination being only the most recent example. Previously we had late and unexpected allegations made of sexual misconduct against now Justice Clarence Thomas.

Is it your sense that the Senate's appetite for allowing this kind of thing to go on is diminished? Because otherwise, if something like this comes along, I'm not sure what you can do about it. What can you do?

SEN. KENNEDY: Well, if my Democratic friends want to turn it into an intergalactic freak show and bring back the protesters with the genitalia shaped head gear, I can't stop them. I just hope they won't (ph).

I'm going to do my job. I think she's a good nominee, but my job is to advise and consent. I'm going to probe her intellect, her temperament, her judicial philosophy, her character. I want to be assured that --


SEN. KENNEDY: -- she doesn't think justices are politicians in robes.

I'm going to answer that in a second.

I want to be assured that she's not one of these justices that tries to rewrite the Constitution every other Thursday to advance a political agenda that the voters won't accept. I don't think her faith -- I mean, if the Democrats (INAUDIBLE) if she believes in God, therefore she is unqualified, I don't think that's illegal in America. I hope not. We have religious freedom and it should be jealously guarded.

They tried that when she came up for a Court of Appeal nomination. It didn't work out too well. They may try it again. As I say, before it's over with, they may bring back Michael Avenatti, but I hope so because it cheapens the process. I hope not rather.

HUME: Senator Kennedy, thank you very much for joining us today. Always good to talk to you.

Up next, we'll discuss how Amy Coney Barrett's confirmation could reshape the court with two leading experts on constitutional law as we count down here in Cleveland to the first presidential debate just a couple of days away.


UNIDENTIFIED MALE: Coming up, Bernie Sanders tries to portray President Trump's comments as threat to democracy.


SEN. BERNIE SANDERS (I-VT): This is an election between Donald Trump and democracy. And democracy must win.


UNIDENTIFIED MALE: Brit Hume returns with the Sunday panel.


HUME: Central to the fight over the next Supreme Court justice is the issue of abortion, which its proponents like to call women's reproductive rights, and the future of Roe vs. Wade. That's the decision, of course, that made abortion legal in America.

We wanted to -- not only legal, but a constitutional right.

We wanted to do a deeper dive on that upcoming court battle, so we invited former independent counsel and former federal appellate judge Ken Starr and Laurence Tribe, Harvard constitutional professor emeritus to discuss.

Gentlemen, welcome to FOX NEWS SUNDAY.

Let me start with you, Professor Tribe.

What is your -- let's give me -- give us quickly your view of this nomination.

LAURENCE TRIBE, HARVARD LAW PROFESSOR EMERITUS: Well, my view is that the nomination should certainly have awaited the results of the election. We've never, never jumped the gun this quickly. It's basically five weeks away. People are already voting.

Whatever the rule might have been in the case of Merrick Garland, where the GOP kept the seat vacant for over 400 days. The idea that we need to rush ahead with a lifetime appointment, that as Judge Barrett herself would readily acknowledge will make a huge difference in the tilt of the court on health care, on women's reproductive rights, on voting rights, the idea that we can't wait a few days is ludicrous. There's no reason for it.

HUME: I don't --

TRIBE: And I really think that the nomination is -- is misguided, quite apart from the nominee. I think quite well of Amy Coney Barrett, but that's not the issue. The issue is not the nominee, it's the nomination. They're not willing to wait because they really are nervous about what the American people believe the Constitution means and what they believe should be represented on the Supreme Court.

HUME: Well, speaking -- well --

TRIBE: They also --

HUME: Well, speaking --

TRIBE: Yes, go -- no, go ahead.

HUME: Speaking of the Constitution -- speaking of the Constitution, sir, do you find any support for your argument in the Constitution itself?

TRIBE: Oh, I'm not suggesting it's unconstitutional to go ahead. It's perfectly constitutional. But a lot of things that are constitutional are stupid. This is not a good idea.

What is it that they're afraid of? That the American people don't want to re-elect this president? If they think he'll be re-elected, and that they will have a Republican Senate, then they can confirm Amy Coney Barrett then.

But the idea that it has to happen now, one of the reasons the president has given is, he wants to have a majority on the court to uphold his decision not to count all the ballots. He's said, if we don't count the ballots, if we toss some of them aside, we won't have to worry about a transition, it will just be a continuation of my presidency. That's not the way democracy works. That's the way dictatorship works.

HUME: Judge Starr, your -- Judge Starr, your reaction, please, to the points that have been raised by Professor Tribe?

KENNETH STARR, FORMER INDEPENDENT COUNSEL: Well, first, I have great respect for Professor Tribe and no small affection for him.

But I view it as the president's duty. There is a vacancy and it's tragic that we lost Justice Ginsburg, but, exactly, you ask the right question, what does the Constitution say? I don't think that the president, whoever the president is, should dillydally. And, in fact, Justice Sotomayor said in 2016, we really don't do well -- I'm paraphrasing, with eight members of the court. And Justice Ruth Ginsburg herself said at that same time.

The president does not stopping being the president during an election year. So the president has done his duty and now, of course, it is up to the Senate to determine, are these considerations that Professor Tribe is articulating, are those weighty enough to say we're not going to go forward or we're going to wait until after the election and so forth.

But the president has chosen a superb nominee. We saw that yesterday. And just no one is questioning her abilities, her integrity, her temperament and the like. So let's have a good confirmation hearing and air out all these issues, including how are you going to vote on some of these thorny questions?

HUME: Well, let me get to that because it is being staged with some certainty by --

TRIBE: Can I say --

HUME: Well, just a second, Professor Tribe, let me just follow up here and -- and I'll get back to you.

Professor Tribe was pretty specific about the issues on which he believes that he can predict or that it's clear how Judge Barrett will vote, abortion and a number of others that he mentioned.

What's your reactions to that, Judge Starr?

STARR: Absolutely premature and wrong. With all due respect to Professor Tribe, the judicial process is not an academic enterprise. What someone has said is an academic may -- and it's appropriate to explore that in the confirmation hearing. But to predict in advance how a justice going to behave or to vote I think is folly. I also think it's unfair to the process. That's why we have a judicial process. It's why you take an oath and that's why you read the briefs as a judge, you listen to the oral argument and you consult with your colleagues as well.

Does she have a judicial philosophy? Absolutely. She has said she is of the school of Antonin Scalia. And so that's a great insight. And that is a -- what I would call a traditionalist who treats the Constitution not as simply an aspirational document, but as law. And so I would say, hold off, let's hear the confirmation hearings and see if she says, as I think she will, I solemnly promise that I will go about my duties with an open mind, I will listen to all the arguments and I will assess them with great, great respect for both sides as well as the views of my colleagues.

HUME: Professor Tribe?

TRIBE: Well, I don't pretend to have a crystal ball. I've just read her writings. I've read many of her opinions. It's clear how she approaches the law. It's a perfectly respectable view. It was the view Justice Scalia held. And, of course, he said he thought Roe v. Wade was wrongly decided. She's written that Roe v. Wade is not entitled to determinative weight as a precedent. She has also been explicit in saying she thought that Chief Justice Roberts was wrong in stretching what he understood the Affordable Care Act meant in order to uphold it. She's been admirably candid about her views --

HUME: What did you think of that view, by the way? What did you think -- what did you -- what did you think -- right, but let -- what did you think about what Justice Roberts -- how Justice Roberts ruled on that matter, whether it was a tax or a penalty? What did you think of that as a constitutional lawyer?

TRIBE: I -- I made clear at the time that I thought that's what he would rule and that that's what he ought to rule in order to avoid a constitutional conflict. That is, interpret the law as a tax in order to use the broad taxing power in order to uphold it. And I think the lower court, which said that when the tax goes away, it's no longer possible to uphold the law and even the protection for people with pre-existing conditions goes away. I think, and most scholars think, that that went way too far.

Now, I'm not going to predict exactly what Judge Barrett will do on that, but what is clear is she is being rushed through in a confirmation process that will be faster than any in recent memory because they want to have --

HUME: All right.

TRIBE: Six conservatives on the court --

HUME: Let me --

TRIBE: That will determine whether he is remaining president.

HUME: Judge Starr, very quickly, give me about 15 seconds, I'm sorry, we're almost out of time, I just want to give you the last word here.

STARR: Predictions are fallacious. Let's have a confirmation hearing. The history of confirmation shows that the Senate can move forward very, very quickly, especially when you have someone with a very good and solid record and a person of such great ability. So let's move the process forward and have a good, robust debate, which I think will be good for the country.

HUME: Judge Starr, Professor Tribe, thank you very much, both of you, for your perspectives as this confirmation process gets underway.

TRIBE: Thank you.

STARR: Thank you.

HUME: Up next, we'll bring in our Sunday group to discuss what's at stake on Tuesday night's debate and with this nomination when FOX NEWS SUNDAY returns from Cleveland.



SEN. CHUCK SCHUMER (D-NY): Why are they committing a power grab so egregious that it risks shedding the last vestiges of trust that remain between our two parties?

SEN. MITCH MCCONNELL (R-KY): The sky is falling when a Democratic president does not get to confirm every last judge he or she wants. And the sky is falling when a Republican president gets to confirm any -- any judges.


HUME: Democratic Leader Chuck Schumer and Majority Leader Mitch McConnell giving us a sort of preview of the Senate battle ahead over President Trump's Supreme Court nominee.

Time now for our Sunday panel.

GOP strategist Karl Rove, editor Katie Pavlich, and Fox News political analyst Juan Williams.

Well, the Republicans are speaking with great confidence about their prospects and we're hearing that the votes are there. Certainly the votes are there to bring up the nomination.

But, Karl, how confident can we be just -- give me your best thought -- that the votes will be there when all is said and done given the kind of processes we've had before?

KARL ROVE, FOX NEWS CONTRIBUTOR: Well, Judge Barrett went through this in 2017 and passed out of the Senate with Republican support. I suspect a very strong likelihood that this time around the result will be the same.

I think it's interesting though that the Democrats have -- are making sort of I think strange arguments. You heard Senator Stabenow, for example, really ion essence imply there was a prearranged agreement between the president and Justice Barrett that she would vote to overturn the Affordable Care Act, and then she railed on the Senate for taking up this matter rather than passing another Covid relief package.

This is a matter of days after she voted against the Senate even taking up the Republican proposal for another round of Covid relief. So this is going to be politics, politics, politics, but it's going to end with her on the Supreme Court.

HUME: Katie.

KATIE PAVLICH, FOX NEWS CONTRIBUTOR: Yes, it's very clear that Democrats are taking this with the political health care argument. The insinuation that they know how Judge Barrett would rule on Obamacare is something that they don't know about and judges frequently, during these confirmation hearings, whether they are for a federal bench or the Supreme Court, do not reveal how they would vote on pending cases. So I think that Democrats will be very frustrated with that.

But you had Harvard Law Professor Laurence Tribe on in the previous segment. I think the way that he summed up how he feels about Republicans moving forward with the constitutional process really defines how the left is moving forward with their philosophy on this. He said, well, it's constitutional for the president to appoint a nominee and for the Senate to move forward on advise and consent, but there are number of stupid things in the Constitution.

So while Republicans are moving forward with the constitutionality of this and while Judge Barrett continues to say that her political feelings personally and her policy positions do not reflect how she rules on a number of cases, Democrats continue to argue that because they have some feelings about the timing of this, that the Constitution should be pushed aside, which is in direct conflict with what Barrett said yesterday at the White House in saying that she will -- she loves the Constitution. She would move forward in the constitutional process and she will not make law from the bench, but rather interpret it.

HUME: Juan, your -- where -- where do you come out on all this?

JUAN WILLIAMS, FOX NEWS POLITICAL ANALYST: Well, Brit, I think the Democrats have a choice here. I mean one choice is they could shun Barrett, not grantor here a meeting, stay away from the hearings, which is what the Republicans did to Merrick Garland for ten months, not just six weeks. But I think it's most likely now, from what I'm hearing, they will go to the hearings. I don't know about the meetings, but they'll go to the hearings and they will focus on the idea that this is a rushed process. They will note that many Republican senators, even before we knew it was going to be Amy Coney Barrett as the nominee, said they would vote for whoever President Trump nominated.

So they will focus on that and they will focus on the idea, as we've heard earlier in this show, that she is an opponent of, you know, the continuation likely of the Affordable Care Act, but also in terms of gay rights, abortion, and maybe most of all that any dispute in the election would be decided by her in the president's favor and that would, of course, decide who the next president of the United States is.

HUME: Well, Juan, do you think there's any chance that those arguments on the Affordable Care Act and the rushed process will peel away any Republican votes? Because he -- in order to block this nomination, Republicans have a majority, a very narrow one, but a majority nonetheless, those arguments would have to sway Republicans.

Could those arguments do that, Juan?

WILLIAMS: You know, it's a matter of conscience at this point. And what we've seen is a unified Republican front behind Senator McConnell, the majority leader in the Senate, Brit. So it would have to be that somebody, either as a matter of conscious, or I would say potentially somebody who's in a tough re-election fight for their Senate seat, decides that it's untenable. But, at this juncture, I don't see anything like that.

HUME: Karl, what do you think?

ROVE: No, I don't -- I don't think so. Look, most of the Republican senators were there in 2017, many of whom were there in 2017 and voted to put her on the Seventh Circuit when we went through a similar circus. This is where Dianne Feinstein attacked her Catholic faith by saying, quote, the dogma live strongly within you.

But, look, the -- members of the Senate are allowed to exercise their constitutional authority. The president, under Article Two, Section Two, Clause Two has the right to nominate and the Senate has the right to give or withhold its advise and consent.

And what's interesting to me is, is Senator Schumer was a leader of the effort to withhold -- they never gave a vote to Miguel Estrada, nominated by President Bush, and -- and nothing was wrong with that by them exercising their authority.


Katie, what do you think the chances are that this affects the election one way or the other?

PAVLICH: I think the chances are 100 percent, Brit, especially for Republican voters who put more senators -- Republican senators in the Senate in 2018 based on the Supreme Court issue after the bruising fight over Brett Kavanaugh's nomination. President Trump has been very transparent since the beginning of his presidency four years ago in releasing a list of Supreme Court nominees he would put on the court if he had the chance.

HUME: So -- right.

PAVLICH: So he's given everybody including Democrats a preview of this and plenty of time to prepare for what's coming.

HUME: I -- I understand, but what -- what about -- but what about the effect of this nomination -- and let's just assume for the sake of discussion that it -- she's confirmed, what is the effect, if any, on the election, quickly?

PAVLICH: Well, I think Democrats who feel like this has been rushed through too quickly may get some more enthusiasm for Joe Biden, who, of course, needs that. And Republicans, I think, risk serious consequences in future elections if they were not to move forward with this nomination.

HUME: So -- OK, Juan, your thoughts on the election and how it might be affected by this nomination?

WILLIAMS: Well, I don't think there's any question, a majority of Americans think that it's wrong to rush the process. They think the next president should decide. Even a substantial number of Republicans.


WILLIAMS: So this is brute politics.

HUME: So --

WILLIAMS: But in terms of the election, I think it excites the base of both parties.


Gentlemen, lady, thank you very much. See you next Sunday.

PAVLICH: Thanks, Brit.

HUME: Or you -- someone will, Chris, I suppose.

WILLIAMS: Thanks, Brit.

HUME: A look back on big -- up next, a look back on big moments of debates past as Donald Trump and Joe Biden prepared to go face-to-face here in Cleveland in two days.


HUME: In just two days, President Trump and former Vice President Joe Biden will finally face-off on the debate stage with our own Chris Wallace moderating, his second time at the helm of one of these debates.

It is, obviously, a critical event for both candidates hoping to deliver a knockout performance as they always do hope that could generate momentum in the campaign's homestretch.

First debates tend to be the most important ones. History has shown that impressions that are created in these first debates can sometimes be hard to overcome if they go against you and a great help if they go for you.

President Donald Trump will return to the debate stage here in Cleveland, shortly, two days from now, on this very time, facing Democratic nominee Joe Biden.

Be sure and tune in as Chris Wallace moderates the first debate. That's at 9:00 p.m. Eastern on Tuesday. We'll have special coverage starting tonight at 10:00 p.m. Eastern, anchored by Bret Baier and Martha MacCallum.

OK, we have a package here looking back on debates past. Have a look.


UNIDENTIFIED MALE: The presidential candidates meet face-to-face in television debates heard and heard by millions of people.

HUME (voice over): It is a famous anecdote, John F. Kennedy dazzling TV viewers while debating Richard Nixon, going on to win in November and setting a new precedent, bring you're A-game to the TV debates, leverage the visuals, nail the witty comebacks.

Like Ronald Reagan's epic rejoinder when journalist Henry Trewhitt asked about his age.

RONALD REAGAN, FORMER U.S. PRESIDENT (October 21, 1984): I will not make age an issue of this campaign. I am not going to exploit, for political purposes, my opponent's youth and inexperience.

HUME: Or the smack down by Michael Dukakis' running mate Lloyd Bentsen of Dan Quayle comparing himself to JFK.

LLOYD BENTSEN, MICHEL DUKAKIS' RUNNING MATE (October 5, 1988): I knew Jack Kennedy. Jack Kennedy was a friend of mine. Senator, you're no Jack Kennedy.

HUME: In 2000 it was the nod, George W. Bush cheekily brushing off a looming Al Gore.

GEORGE W. BUSH, FORMER U.S. PRESIDENT (October 17, 2000): But can you get things done? And I believe I can.

HUME: And in 2012, President Barack Obama was ready when Mitt Romney talked military preparedness.

BARACK OBAMA, FORMER U.S. PRESIDENT (October 22, 2012): You mentioned the Navy, for example, and that we have fewer ships than we did in 1916. Well, governor, we also have fewer horses and bayonets because the nature of our military has changed. We have these things called aircraft carriers were planes land on them.

HUME: In the 2016 debates between Donald Trump and Hillary Clinton, it was suddenly less about style and more about the unpredictable substance.

CHRIS WALLACE, ABC NEWS (October 19, 2016): Where do you want to see the court take the country?

DONALD TRUMP, PRESIDENT OF THE UNITED STATES (October 19, 2016): I believe if my opponent should win this race, which I truly don't think will happen, we will have a Second Amendment which will be a very, very small replica of what it is right now.

HUME: And key moments that shocked at the time and still loom large as we head into November.

WALLACE (October 19, 2016): Do you make the same commitment that you will absolutely -- sir, that you will absolutely accept the results of this election?

TRUMP (October 19, 2016): I will look at it at the time. I'm not looking at anything now.

WALLACE (October 19, 2016): Are you say you're not prepared now to commit to that principle?

TRUMP (October 19, 2016): What I'm saying is that I will tell you at the time. I'll keep you in suspense.


HUME: It's going to be interesting on Tuesday.

That's it for today from Cleveland.

Have a great week and we'll see you next FOX NEWS SUNDAY.

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