Dems frame Barrett as threat to ObamaCare at confirmation hearing


This is a rush transcript from “Special Report” October 12, 2020. This copy may not be in its final form and may be updated.

Good evening, welcome to Washington. I’m Bret Baier.

Breaking tonight, we are following three big stories at this hour. Just a short time ago, President Trump’s physician said the commander-in-chief has tested negative for the coronavirus on consecutive days. This as the president’s on his way to a rally in Florida as he restarts his campaign travel while his opponent, you see on screen there, Joe Biden holding a rally in another swing state Ohio.

Back here in Washington, the confirmation hearings for Judge Amy Coney Barrett began on Capitol Hill today with opening statements and plenty of political rhetoric setting the table for hours of questioning which starts Tuesday morning. Republicans on the Committee touted Judge Barrett’s status as a law professor and legal scholar.

Democrats focusing on the process taking place 22 days ahead of a presidential election and on health care with a case involving the Affordable Care Act or Obamacare set to be heard by the Supreme Court on November 10th. Judge Barrett said she would apply the law as written.

Fox News chief legal correspondent, anchor of “FOX NEWS @ NIGHT”, Shannon Bream had a bird’s eye view today of the hearing, joins us now with more.

Good evening, Shannon.

SHANNON BREAM, FOX NEWS CHANNEL HOST: Good evening, Bret. Well, because of the pandemic protocols in place including a ban on public spectators, the Barrett confirmation got off to a much quieter start than the last one of these the Senate held for then nominee now Justice Brett Kavanaugh.

And while Judge Barrett praise the woman that she hopes to replace the late Justice Ruth Bader Ginsburg, today should make clear the model she plans to follow is the one set by Ginsburg friend but ideological opposite, Justice Antonin Scalia.

(BEGIN VIDEOTAPE)

JUDGE AMY CONEY BARRETT, SUPREME COURT NOMINEE: I believe Americans of all backgrounds deserve an independent Supreme Court that interprets our constitution and laws as they are written.

BREAM: Day one of the Supreme Court confirmation hearings for Judge Amy Coney Barrett.

SEN. LINDSEY GRAHAM (R-SC): This is going to be a long contentious week.

BREAM: Kicking off with wildly divergent opinions of her, demonstrations.

Arrests and a socially distanced hearing room in the pandemic age, Democrats made clear they object on two fronts. First, regarding the process itself.

SEN. AMY KLOBUCHAR (D-WI): Yes, judge. I think this hearing is a sham.

BREAM: And also on the issue of healthcare, Democrats claiming Barrett should she be confirmed to the nation’s highest court by November 10th, when the justices will hear a narrow case regarding the Affordable Care Act will serve as a vote to strike down the law.

SEN. KAMALA HARRIS (D-CA), VICE PRESIDENTIAL CANDIDATE: They’re trying to get a justice on to the court in time to ensure they can strip away the protections of the Affordable Care Act.

BREAM: But many legal experts are highly skeptical that hypothetical scenario will actually become a reality.

KENNETH STARR, FORMER FEDERAL JUDGE: The Supreme Court is not going to throw the whole thing out, no way. You can take that to the bank.

BREAM: Democrats are also demanding that Barrett commit to recusing herself, should a 2020 election dispute land at the Supreme Court?

SEN. RICHARD BLUMENTHAL (D-CT): Your participation, let me be very blunt, in any case involving Donald Trump’s election would immediately do explosive, enduring harm to the court’s legitimacy and to your own credibility.

BREAM: Barrett faced probing questions about her devout Catholic faith during her 2017 Senate confirmation hearings. Today, Republicans made clear they won’t tolerate a repeat.

SEN. BEN SASSE (R-NE): This committee isn’t in the business of deciding which religious beliefs are good and which bullet — religious beliefs are bad and which religious beliefs are weird.

(END VIDEOTAPE)

BREAM: Judge Barrett wrapped up her remarks today, saying that she believes in the power of prayer and is grateful for all Americans who have reached out to offer that support, she may need it tomorrow because that is when the senators began questioning her directly, Bret.

BAIER: Shannon Bream, thank you. We’ll see you at 11:00 tonight.

For more on the start of the confirmation process, joining me now, George Washington University law professor Jonathan Turley. Once again, I should point out, a Fox News contributor. Welcome back.

JONATHAN TURLEY, FOX NEWS CHANNEL CONTRIBUTOR: Thank you, it’s good to be back.

BAIER: Jonathan, what was your take of today? The set up obviously Democrats went in there with the plan, this is the opening statement but set the table for the viewers.

TURLEY: What was a curious scene we’re not used to having all of these blown up pictures around the nominee and it was a bit in my view inappropriate because the suggestion was that these are going to be the victims of the nominee. And if that’s — you know, the perpetrator almost like some type of serial killer, that these are people that are going to lose all of their health care.

And these were very touching stories, they were moving stories and their good argument for national health care. But they’re not relevant to this nominee, because the case that they’re talking about is very unlikely to result in the entire act being struck down to — at least two of the conservative justices are expected to vote in favor of preserving the rest of the act.

The issue is not the ACA, it’s this technical issue called severability of whether one on constitutional section should result in the entire act being struck down.

And as I said, there’s at least two conservatives Roberts and Kavanaugh who are expected to vote to preserve the act.

So, all of this was a rather curious display, but it wasn’t particularly fair to her to portray her nomination as this question.

And I also see something else that concern me and that is what they were suggesting was that they would be voting against her because of what they expected her vote would be in a pending case and that is a conditional confirmation, that’s a confirmation based on a single pending case which is what Ruth Bader Ginsburg took a stand against. In fact, there’s a thing called the Ginsburg rule where she refused to talk about her vote on any future case.

But here, the senators seem to be saying, I’m not even going to listen, I’m going to vote against you in the case of Senator Booker because I don’t think you’re going to vote the right way on a case on November 10th.

BAIER: Yes, it’s fascinating. We’ll see where the questions go on a number of different fronts.

One of the things we’ve been talking about with Joe Biden and Kamala Harris is this court packing question. The fact that they won’t answer whether they’ll add justices or be in favor of that if they won the election.

Here’s Chris Coons over the weekend with his definition or redefinition of that.

(BEGIN VIDEO CLIP)

SEN. CHRIS COONS (D-DE): We’re focusing on jamming through Judge Barrett. I think this constitutes court packing and frankly, I think that’s the implication of what Joe Biden was saying.

(END VIDEO CLIP)

BAIER: Basically, he’s not alone, Chuck Schumer said something similar that court packing is what Republicans are doing. That’s not the definition of court packing, nor the one that Joe Biden was against when he was chairman of the Senate Judiciary Committee.

TURLEY: No, it’s really incomprehensible. (INAUDIBLE) this is not court packing under any cognizable definition. This is not expanding the court.

What Democratic members have suggested is that they may add as many of five or six justices to get an immediate majority that is committed to this part of their agenda, that is court packing, this is not, this is filling a vacancy according to a constitutional process.

Now, you can criticize the Republicans and say that we don’t think you should go forward with this. But it is a constitutional right of the president and it’s a constitutional function of the Senate but what it is not his court packing.

Now, what the Democrats have suggested would be court packing and that’s what’s curious about Biden refusing to answer that question. Many voters will not vote for a candidate who favors court packing.

Ruth Bader Ginsburg spoke against this very proposal that something that would destroy the institution she spent her life supporting.

BAIER: Jonathan Turley as always, thank you. We’ll see you tomorrow.

TURLEY: Thank you.

BAIER: Breaking tonight, we have mentioned at the top, President Trump’s doctor says the president’s most recent COVID tests had come back negative on consecutive days. Results show he is not infectious to others says the doctor. And that has the president back on the campaign trail heading to Florida at this hour for a rally just one week after leaving the hospital following his coronavirus diagnosis.

Correspondent Kristin Fisher is on the North Lawn of the White House with the latest. Good evening, Kristin.

KRISTIN FISHER, FOX NEWS CHANNEL CORRESPONDENT: Good evening, Bret.

President Trump has been itching to get back out on the campaign trail so much so that his senior campaign adviser Jason Miller says that the president was getting on his case this morning for not having enough rallies. Well, that all changes in about an hour with his first of four rallies in four days.

(BEGIN VIDEOTAPE)

FISHER: President Trump heading back out on the campaign trail for the first time since testing positive for COVID-19.

Despite the diagnosis and an outbreak in the West Wing, White House Press Secretary Kayleigh McEnany who’s also recovering from COVID-19 says nothing will be different at tonight’s rally in Florida where right now, former Vice President Joe Biden is ahead by more than three points according to the RealClearPolitics average of polls.

KAYLEIGH MCENANY, WHITE HOUSE PRESS SECRETARY: We will have the same policies that we’ve had in place. The campaign has always handed out masks, encourage people to wear them, providing hand sanitizer. Ultimately, you have a right in this country to show up and express your political viewpoint.

FISHER: Over the weekend, the president claimed he tested negative and was now immune to the virus.

DONALD TRUMP, PRESIDENT OF THE UNITED STATES: I feel fantastically. I really feel good. And I even feel good by the fact that, you know, the word immunity means something having really a protective glow.

FISHER: White House Physician Sean Conley said in his last statement on Saturday night that the president is “No longer considered a transmission risk to others.”

UNIDENTIFIED FEMALE: President Trump is recovering from the coronavirus and so is America.

FISHER: This new ad from the Trump campaign highlights how they’re helping the president’s personal struggle with the virus that’s killed more than

200,000 Americans could help him win a second term.

But a member of the White House’s own Coronavirus Task Force Dr. Anthony Fauci is upset that he’s in it.

DR. ANTHONY FAUCI, DIRECTOR, NATIONAL INSTITUTE OF ALLERGY AND INFECTIOUS

DISEASES: I can’t imagine that anybody could be doing more.

FISHER: Dr. Fauci fired back on Sunday saying “In my nearly five decades of public service, I have never publicly endorsed any political candidate. The comments attributed to me without my permission in the GOP campaign ad were taken out of context from a broad statement I made months ago about the efforts of federal public health officials.”

But the president says, they are indeed Dr. Fauci’s own words and the Trump campaign argues they’re accurate.

(END VIDEOTAPE)

FISHER: Now, going forward, expect President Trump to do two to three events a day even more potentially as we get closer and closer to Election Day.

The Trump campaign really believes that part of the reason President Trump won in 2016 was because he outworked Hillary Clinton in the home stretch.

Now, in 2020, they’re trying to do the exact same thing between now and November 3rd, Bret.

BAIER: 22 days. Kristin Fisher live on the North Lawn. Kristin, thanks.

Today is the first day of in-person voting in Georgia and already the state is having technical issues. Officials in the state’s most populous county say problems with the electronic poll book used to check in voters created long and slow-moving lines.

Sunday, federal judge expressed serious concerns about Georgia’s new election system but declined to order the state to abandon its touch screen voting machines in favor of hand marked paper ballots.

A different federal judge upheld the Minnesota state court agreement that allows the counting of absentee ballots received up to seven days after Election Day. Provided ballots are postmark on or before Election Day.

Republicans are expected to appeal that decision.

Meantime, Michigan’s Democratic governor says her state will not rush to ensure all presidential votes are counted on Election Day, saying the state will focus on getting it right and not hitting an artificial deadline.

As we mentioned, Vice President Biden is campaigning in Ohio. Let’s take a listen in, he’s in Cincinnati right now.

UNIDENTIFIED MALE: — branch in the U.S. Supreme Court. The Repub —

JOE BIDEN (D), PRESIDENTIAL CANDIDATE: (AUDIO GAP) this quote, Daddy changed the world. I also got to know Jacob Blake’s mom and dad and the whole family. Know what she said, she said, violence didn’t reflect her son, that this nation needed healing, to stop the rioting, peacefully march, but there’s no justification for violence.

One of the things that I’ve found, I’ve been in the civil rights arena for a long time, found pretty moving, was Doc Rivers, the basketball coach choking back tears. Remember what he said a couple of weeks ago? “We’re the ones getting killed. We’re the ones getting shot. We’ve been hung,”

continuing the quote. “It’s amazing why we keep loving this country and this country doesn’t love us back.” Think about that. Think about what it takes for a Black person to love America. That is a deep love for this country that for too far too long has never been fully recognized.

You know, Trump talks about the lack of systemic racism. This is the first administration ever — we’ve never met, we hold these truths to be self- evident that all men, we’ve never met that standard.

But every generation has moved closer and closer and closer to inclusion.

It’s the first one, elected president, to deliberately try to turn it back in a big way.

BAIER: Vice President Biden again campaigning in Ohio at this hour, a state President Trump won by eight points four years ago. The event points to a campaign on the offense both in travel plans where he is and in campaign ad spending a lot of money, but the candidate is still defensive as we mentioned over one big question he’s still refusing to answer.

Correspondent Peter Doocy has our report.

(BEGIN VIDEOTAPE)

PETER DOOCY, FOX NEWS CHANNEL CORRESPONDENT: Joe Biden is making a play for state no Republican has ever won the White House without Ohio.

BIDEN: Hello, Toledo.

DOOCY: Throughout the campaign, Biden has pitched himself as a straight shooter.

BIDEN: We have to be honest with the American people, but tough.

DOOCY: But when it comes to leveling with the American people about court packing, less is apparently more.

UNIDENTIFIED MALE: Well, sir, is the voters deserve to know where —

(CROSSTALK)

BIDEN: No, they don’t — I’m not going to play his game.

DOOCY: Now, Biden accuses Republicans trying to fill a vacant seat of trying to pack the court.

BIDEN: Look, there only court packing is going on right now. It’s going on with the Republicans packing the court now. It’s not constitutional what they’re doing.

DOOCY: Unconstitutional, how?

KATE BEDINGFIELD, DEPUTY CAMPAIGN MANAGER OF BIDEN CAMPAIGN: His point is that the people have an opportunity to weigh in on this constitutional process through their vote. And we are now in the midst of the election, millions of people have already cast their vote.

DOOCY: Biden hasn’t always been unwilling to take a position on court packing.

BIDEN: President Roosevelt clearly had the right to send to the United States Senate, the United States Congress a proposal to pack the court. It was totally within his right to do that. He violated no law, he was legalistically absolutely correct. But it was a bonehead idea.

DOOCY: This weekend in Pennsylvania, Biden tried to reassure voters who work in the energy industry.

BIDEN: I am not, not, not banning fracking. Period.

DOOCY: But his running mate has called for that, and sketch writers at SNL find this evolution for the ticket, funny.

MAYA RUDOLPH, AMERICAN ACTRESS: And while I personally wanted to ban fracking, now that I know Pennsylvania loves it, I just want to say this.

You guys can bet on your Wawa cheesesteak hoagies and all the wooder in Schuylkill River that Joe Biden is not banning fracking. Go Iggles

DOOCY: Harris and Biden are hoping to hold on to their polling lead for three more weeks to win higher office. Wait, which office?

BIDEN: You know, we have to come together that’s why I’m running. I’m running as a proud Democrat for the Senate.

(END VIDEOTAPE)

DOOCY: Biden for president is hosting a, how to, event right now, explaining the Cincinnati voters how to request a ballot by mail, and how and where to go to vote in-person ahead of Election Day.

Ohio is a state that President Trump won by more than eight points last cycle, but Democrats are hoping to run up the score early this time. Bret?

BAIER: Peter, thank you.

Technology stocks lead the way, they led a rally on Wall Street today. The Dow gained 251 today, the S&P 500 jumped 57. The NASDAQ finished ahead 296.

Up next, looking back at a suicide bomb attack that killed 17 Americans 20 years ago today.

First, here is what some of our Fox affiliates around the country are covering tonight. Fox 8, New Orleans, where residents are trying to recover after Hurricane Delta hit the Gulf Coast, killing at least two people in Louisiana. Thousands there, however, remain in shelters. Power has been restored, however, to the majority of those who lost service.

And this is a live look at Miami from Fox 7, are affiliate there. One of the big stories there tonight. A 24-foot boat spins out of control after its three passengers somehow fell overboard.

The three men were conducting a photoshoot on a busy Florida river nearby when they went into the water leaving the boat unmanned. It then circled them a few times before crashing into a pair of ducks. The men were able to swim to a nearby sailboat, with one suffering a minor injury. An investigation into the cause ongoing.

That’s tonight’s live look “OUTSIDE THE BELTWAY” from SPECIAL REPORT. We’ll be right back.

(COMMERCIAL BREAK)

BAIER: American forces conducted several airstrikes in support of Afghan security forces under attack by the Taliban in southern Helmand province over the past two days.

The spokesman for the U.S. military in Afghanistan, says the strikes do not violate the U.S.-Taliban agreement signed in February. Last week, President Trump tweeted, the troops serving in Afghanistan would be home by Christmas.

On Sunday, the chairman of the Joint Chiefs of Staff, said any drawdown will be based on conditions.

(BEGIN VIDEO CLIP)

GEN. MARK MILLEY, CHAIRMAN, JOINT CHIEFS OF STAFF: We have a plan, a series of responsible drawdown options that has been briefed to the president. I’m not going to go into specific numbers for the future. I think that would be inappropriate for me as a — as the chairman, to talk specific numbers in future operation, we typically don’t do that. But we have a responsible plan to end the war with U.S. interests clearly in mind.

(END VIDEO CLIP)

BAIER: When asked about the possibility of a disputed election in the U.S., General Milley, said the apolitical military does not get involved with domestic politics.

One year before 9/11, 17 sailors were killed in a suicide bomb attack on the destroyer USS Cole in Yemen. The Navy held a peer side ceremony today attended by family members of those killed and survivors of the attack.

National security correspondent Jennifer Griffin takes a look back at what happened from the Pentagon.

(BEGIN VIDEOTAPE)

JENNIFER GRIFFIN, FOX NEWS CHANNEL NATIONAL SECURITY CORRESPONDENT: 20 years ago today, a small boat carrying two al-Qaeda suicide bombers pulled up alongside the USS Cole, as it refueled in Yemen, blasting a hole through the side of the guided-missile destroyer, killing 17 American sailors, injuring 37 more.

ADMIRAL CHRISTOPHER GRADY, COMMANDER, UNITED STATES FLEET FORCES

COMMAND:

The story of USS Cole is one of remarkable heroism, exceptional toughness, and a fierce determination, and is also a story of solemn sacrifice.

GRIFFIN: Jason Mosher was a petty officer, third class on board the Cole that day.

JASON MOSHER, USS COLE VETERAN: I’m in the mess line for lunch. There is this huge loud very sudden and brief popping sound, and everything went dark and quiet. And there is acrid smoke in the air.

GRIFFIN: Osama bin Laden hoped to provoke a reaction from the U.S.

military, but the reaction never came, causing him to order the 9/11 attacks less than a year later.

DANIEL HOFFMAN, FOX NEWS CHANNEL CONTRIBUTOR: That’s the lesson from the Cole bombing. It’s that when you see a threat out there on the horizon, it’s critically important to detect it as far to the left of boom as possible, and then, preempt it.

GRIFFIN: Much has changed for the U.S. military since the attack on the USS Cole, the rules of engagement at the time prohibited the sailors on board from shooting.

CMDR. KIRK LIPPOLD (RET.) FORMER COMMANDER OF USS COLE: Because of the mindset of the American people and the political class at the time, they missed it. And so, unfortunately, we suffered through 9/11, 11 months later.

(END VIDEOTAPE)

GRIFFIN: In February, the government of Sudan agreed to pay $70 million to the families of the sailors who died in the bombing, part of the effort to convince the state department to remove Sudan from its list of state sponsors of terrorism. Bret?

BAIER: Jennifer Griffin at the Pentagon. Jennifer, thank you.

Up next, more headaches for the NFL due to the coronavirus. We’ll be right back.

(COMMERCIAL BREAK)

BAIER: Police, say a private security guard working for a Denver T.V.

station is being held for investigation of first-degree murder in the deadly shooting of a protester over the weekend. The victim appears to have sprayed the shooter with Mace right before that shooting.

Police declared a riot, Sunday night in Portland, after demonstrators’

overturned statues of former presidents, Theodore Roosevelt and Abraham Lincoln.

Protest organizers dubbed the event “Indigenous People’s Day of Rage” in response to today’s federal holiday named after Christopher Columbus. The protesters, all dressed in black, also smashed windows of the Oregon Historical Society, a college, and several stores nearby. Three people were arrested.

Some European countries are tightening restrictions as virus cases surge in places like the United Kingdom and France. Liverpool, England, for example, will close pubs and gyms starting Wednesday. Here in the U.S., The death toll has now surpassed 215,000, and there is concern that states may need to react to rising cases in recent days. Correspondent Alex Hogan has the latest.

(BEGIN VIDEOTAPE)

UNIDENTIFIED FEMALE:  Once you’re ready, you’re just going to pull forward.

ALEX HOGAN, FOX NEWS CORRESPONDENT:  Cases of COVID-19 surging in 37 states. Vermont, Montana, New Mexico, and Tennessee reporting a 50 percent spike in positive cases. In the hard-hit state of Wisconsin, a judge ruling Democratic Governor Tony Evers’s mask mandate can stand. The order in place since August requires everyone five and older to wear a mask in public indoor spaces. The lawsuit arguing that the mask order hadn’t kept infection numbers from rising.

The virus is still sidelining sports, leisure, and travel. Carnival Cruise Line has canceled all trips leaving from the Ports of Miami and Canaveral in November. The move follows the CDC’s no sail order for cruises until October 31st. The success of the bubble worked out for the NBA who closed out its season with the Los Angeles Lakers winning the championship. The headache, however, continuing for the NFL. Tonight’s Patriots and Broncos game just the latest to be postponed due to a positive coronavirus test.

JASON MCCOURTY, NEW ENGLAND PATRIOTS:  For them, it’s not about what’s in our best interests or our health and safety as about, what can we make protocol-wise that sounds good, looks good, and how can we go out there and play games?

HOGAN:  In New York, Governor Andrew Cuomo has reimposed coronavirus restrictions in an attempt to control hotspots that have been seen in Brooklyn and Queens. Police there handing out more than $150,000 in fines to businesses and houses of worship who were caught breaking the rules meant to limit social gatherings. Despite the restrictions, police broke up an illegal part of more than 100 people in Queens.

(END VIDEOTAPE)

HOGAN:  These sobering numbers continuing to climb. Nationally 7.7 million people have contracted COVID-19. More than 214,000 Americans have died in eight months from the virus. Bret?

BAIER:  Alex, thank you.

Up next, the panel joins me as President Trump hits the road to restart his campaign travel after coronavirus treatments and the negative tests, according to his physician.

But first, the death of two legends, essentially. Hall of Fame second baseman Joe Morgan passed away in his San Francisco Bay Area home. Morgan was a leader of back-to-back World Series winning Cincinnati Reds in 75 and 76, winning the National League’s Most Valuable Player award in both title winning seasons. And Roberta McCain, who joined her late son, her son, the late Senator John McCain on the campaign trail in 2008, died today. Roberta gained popularity on the trail due to her feisty personality. She outlived the late Senator McCain by two years. Joe Morgan was 77. Roberta McCain was

  1.    

(COMMERCIAL BREAK)

(BEGIN VIDEO CLIP)

SEN. LINDSEY GRAHAM, (R-SC):  This is an election year. We’re confirming the judge in an election year after the voting has occurred.

SEN. CORY BOOKER, (D-NJ) PRESIDENTIAL CANDIDATE:  This is a charade when they say this is a normal Judiciary Committee hearing for a Supreme Court nomination.

SEN. KAMALA HARRIS, (D-CA) VICE PRESIDENTIAL CANDIDATE:  This hearing is a clear attempt to jam through a Supreme Court nominee who will take health care away from millions of people during a deadly pandemic that has already killed more than 214,000 Americans.

AMY CONEY BARRETT, FEDERAL APPEALS COURT NOMINEE:  I believe Americans of all backgrounds deserve an independent Supreme Court that interprets our constitution and laws as they are written.

(END VIDEO CLIP)

BAIER:  Day one of the Senate Judiciary Committee confirmation hearing for Judge Amy Coney Barrett. This was opening statements, and her opening statement as well.

Let’s bring in our panel, FOX News senior political analyst Brit Hume, Mollie Hemingway, senior editor at “The Federalist,” Julie Pace is the Washington Bureau Chief for the Associated Press, and Chris Stirewalt is politics editor here at FOX News, host of the new FOX Nation show, “Unforgettable Campaign Commercials.” I want to check that out.

Brit, let me start with you. And that is, this is day one. This is the standard opening. But there was a unified message on the Democratic side when it came to Obamacare, otherwise known as the Affordable Care Act.

HUME:  Yes, you heard it expressed there by a Kamala Harris among a number of others that Amy Coney is a sure vote to strike down the Affordable Care Act. Of course, she has no idea what Amy Barrett would do regarding the Affordable Care Act, and neither really does anybody else, except it’s worth reminding these Democrats of the state at play in that case. The case that is coming before the court is one in which the law was ruled that it had to fall because the penalty, the mandate penalty had been zeroed out, therefore the justification that Justice Roberts used for upholding it falls away and that the whole law would fall away. That’s what’s called severability. It’s a technical issue.

It’s not at all clear how Amy Coney Barrett would vote on that. But remember, if she were not on the court and it’s decided by a four-four court, the lower court’s ruling would stand, and the law would fall away.

So I’m not sure at all what danger she poses when you think about the posture of the case. Democrats seem impervious to that.

BAIER:  Julie Pace, there’s the two sides here, Senator Durbin, Senator Grassley.

(BEGIN VIDEO CLIP)

SEN. DICK DURBIN, (D-IL) SENATE MINORITY WHIP:  The Republicans on that committee and beyond are tone-deaf in the middle of the pandemic to be pushing the lawsuit to eliminate health care protection.

CHUCK GRASSLEY, (R) CHAIR, SENATE JUDICIARY COMMITTEE:  The left is also suggesting Judge Barrett’s confirmation would be the demise of the Affordable Care Act and protection for preexisting conditions. That’s outrageous. As a mother of seven, Judge Barrett clearly understands the importance of health care.

(END VIDEO CLIP)

BAIER:  It doesn’t seem, Julie, that Democrats have a way to stop this, and may be delayed a bit. We don’t know what we don’t know about the questioning over the next two days. But it seems like they want to get the political implication of Obamacare out forefront.

JULIE PACE, WASHINGTON BUREAU CHIEF, ASSOCIATED PRESS:  Yes, I think that’s right. Democrats will acknowledge that they don’t really have a way to slow this down. If Amy Coney Barrett has a strong performance over the next couple of days, it seems like her nomination will move forward pretty quickly. But what Democrats do feel like they can do is turn this into a discussion about health care, which is something that the party did successfully in 2018 during those midterm elections.

They feel like when it comes to where American are on this question of retaining the Affordable Care Act that they are in stronger position, particularly given the fact that President Trump keeps talking about having a health care plan but really has not put forward anything comprehensive.

So if they can spend these hearings talking about health care, they consider that a victory for them even if it doesn’t do anything to slow down Barrett’s nomination.

BAIER:  Mollie, is your bet that this is going to get through before the election?

MOLLIE HEMINGWAY, SENIOR EDITOR, “THE FEDERALIST”:  Certainly. I think it is good to remember that, generally speaking, the way to oppose a Republican nominee to the Supreme Court if you are a Democrat is not during the initial hearing process but to drop a smear after the hearings have ended. That’s what you saw was Justice Thomas. That’s what you saw with Brett Kavanaugh. They both made it through their hearings fairly unscathed.

And that was when everything broke loose after the hearings were completed.

So the fact that these hearings will likely go pretty well for Amy Coney Barrett isn’t the end of the story. The problem for Democrats, and it shows in this convoluted health care argument they’re trying to make is they don’t have a lot of ammunition, and there’s not a lot of goodwill given how they handled that Kavanaugh process two years ago. That really unified not just Republicans, but really all non-Democrats in thinking that that was a really unfair sneer operation. And so there’s not a lot of patience for gameplaying or for what might unfurl as the week progresses.

BAIER:  Yes, one of the best Republican speeches, opening statements, might have been Senator Ben Sasse, who put everything in Schoolhouse Rock terms for the eighth graders watching.

(LAUGHTER)

BAIER:  And also referenced Judge Amy Coney Barrett’s last appearance and some of the question she received. Take a listen.

(BEGIN VIDEO CLIP)

SEN. BEN SASSE, (R-NE) SENATE JUDICIARY COMMITTEE:  This committee isn’t in the business of deciding whether the dogma lives too loudly within someone.

This committee isn’t in the business of deciding which religious beliefs are good and which religious beliefs are bad and which religious beliefs are weird. It’s none of the business of this committee to delve into any of that in this context, because in this committee and in this Congress and in this constitutional structure, religious liberty is the basic truth.

(END VIDEO CLIP)

BAIER:  We’ll see what we get over the next few days, Chris, but pure politics, how does this play if it gets through? How does it play if it’s after the election?

CHRIS STIREWALT, FOX NEWS POLITICAL EDITOR:  Well, you’ve got to like Sasse there, which is basically the Sasse-an version of “Come at me, bro,”

because that’s what Republicans have been saying to Democrats about Amy Coney Barrett, which is you want to bring up her religion again, you want to bring up her seven kids again, you want to bring up people of praise again? Please do, because we’re going to roast you alive if you try. And that has been the dare that Republicans have been putting out in front of members like Mazie Hirono, Cory Booker, and others who are prone to histrionics and high school theatrics when it came to the previous hearings to try to make this emotional.

But, to Sasse’s point, I don’t think for a lot of persuadable voters they could care. I don’t think that Jimmy crack corn and they don’t care. You take out this case, you take out this matter from the election, I don’t think there are any persuadable voters that’s affected. I think this is just going to be pretty par for the course, pretty matter-of-fact.

BAIER:  Senator Sasse also managed to get in the word “jack wagon” into his speech.

(LAUGHTER)

BAIER:  Brit, the political fallout of all of this, it is something the president can say, I said I was going to deliver conservative judges, and I did.

HUME:  Yes, I think he already had that established with the two previous nominees. I think it shows that he’s still got power, and it shows that he is still using it. But I’m not sure this is the kind of — if he gets her through and it goes through without some hideous controversy arousing at the last minute, I don’t think it adds too much to his strength with the voters, because the people who Amy Coney Barrett is a good nominee and should pass are probably already for Donald Trump anyway. I think it could have hurt him if he didn’t make the nomination, but he did. And so I think this is probably a wash politically, unless the Democrats raise something that is considered disgraceful by most people and hurt themselves, which I think they did in the end with the Brett Kavanaugh nomination.

BAIER:  All right, panel, stand by, if you would. We’ll talk about the election.

Meantime, Air Force One has just landed in Sanford, Florida. The president getting ready for a big event there, taking a look live at Air Force One and all the people turned around looking at it. We actually have it onscreen today. We’ll be back after this.

(COMMERCIAL BREAK)

(BEGIN VIDEO CLIP)

JOE BIDEN, (D) PRESIDENTIAL NOMINEE:  You’ve been asked by the viewers who are probably Republicans who don’t want me continuing to talk about what they’re doing to the court right now.

UNIDENTIFIED MALE:  Sir, don’t the voters deserve to know — 

BIDEN:  No, they don’t. I’m not going to play his game.

President Roosevelt clearly had the right to send to the United States Senate and the United States Congress a proposal to pack the court. It was totally within his right to do that. He violated no law. He was legalistically absolutely correct. But it was a bonehead idea.

(END VIDEO CLIP)

Senator Joe Biden back in 1983 talking about packing the courts. And then former vice president being asked that same question over and over and over again, including this weekend. We’re back with our panel. Mollie, what about this?

HEMINGWAY:  I think it’s clear that the reason why Biden and Harris are not answering it is because they are inclined towards court packing. And in general, this is just a larger problem with different approaches to the Supreme Court. You saw this in the questions that were asked today, the focus being on how is Amy Coney Barrett going to rule on a particular case.

For many people on the left, the Supreme Court is viewed as super legislature, and they want people who will vote the right way.

Conservatives tend to approach the court differently. They say they want people who will determine what the law is and that they will do it without favor for their own personal viewpoint or whatnot. But generally speaking, progressives have found the Supreme Court to be a barrier on their agenda.

This is why FDR actually tried to pack the court. He didn’t like how it was ruling when he was trying to push his New Deal. And that’s what happened when Sheldon Whitehouse two years ago said if you don’t rule the right way on a Second Amendment case, I’m threatening that we will pack the court.

The court has become — it used to be not a dangerous branch. Now it is so fraught. But a good way to remove some of the politics is for the court to return to being a legislature, but just deciding what the law is and having it be, regardless of your personal viewpoints. Amy Coney Barrett says that’s how she approaches it.

BAIER:  Yes, Julie, this weekend, several Democrats tried to repackage court packing, saying that Republicans are doing it now by jamming through this judge to become a justice. But obviously court packing is adding justices to the nine that we have had for decades and decades.

PACE:  Yes, and it is certainly something that we have heard vocally, liberals, progressives, pushing for. And I think this is where Biden is a little bit caught. He is caught between that wing of his party, where he has spent a lot of time trying to galvanize progressives behind his campaign knowing that he was not the favorite for most of them during the primary. And then there is also Joe Biden the institutionalist, who is of the Senate, who spent decades there and is not prone to wanting these big, sweeping changes.

But ultimately, I think where his campaign falls on this issue is that they don’t think that voters are going to make a decision over this. They think that this is a race that is about, really, much bigger issue, and that ultimately voters have largely made up their minds about whether they are for Trump or Biden at this point. And they just don’t see this is as one of those things that they are going to feel compelled, certainly, at least at this point to try to answer. That doesn’t mean that we, as reporters, are not going to keep asking them about it, though. That is for sure.

BAIER:  Exactly. We’re looking live at Sanford, Florida. The president about ready to come out of Air Force One. Brit, your thoughts?

HUME:  I would say that this is an issue that is at the moment is embarrassing to Biden and probably hurting him to some extent, but, as Julie suggests, perhaps not enough to sway a lot of votes. I have seen it happen late in campaigns, Bret, and I’m sure you have too, when a candidate who is trailing late in the campaign latches onto an issue that damages the opponents and drives the issue home and changes the outcome of an election.

It’s not at all clear to me that this will happen here, but this is something. Biden’s position is untenable. You can’t say that voters don’t deserve to know whether you’re going to do something that would change changing a major institution in a major way, and indeed, by doing something you had previously said you’re against. So yes, it’s politically difficult for him. But I think it’s harmful. The only question now, I think, is how harmful.

BAIER:  Chris?

STIREWALT:  Yes, it’s so weird. It’s weird even for Biden, rhetorically, which is saying something. I think, of course, he is strongly disinclined toward court packing. If he weren’t, he’d probably be talking about it. He doesn’t want to dissatisfy liberals in his party, especially in the Black Lives Matter movement and others who see the nuclear option, the end of the filibuster in the Senator, as a civil rights issue now. Biden doesn’t want to go down that path at all. And if he can whistle past the graveyard on this before he can get into office, he would sure love to. But I think the speech you heard him give in Gettysburg did not sound like a guy that was all fired up for court packing.

BAIER:  We shall see how this plays. Again, looking live at Air Force One, Sanford Florida, the president about ready to do a rally down there.

When we come back, the power of a shot and a prayer.

(COMMERCIAL BREAK)

BAIER:  Finally tonight, talent beyond the call of duty.

(BEGIN VIDEO CLIP)

(SINGING)

(END VIDEO CLIP)

BAIER:  New Trinity Missionary Baptist Church went to pray for officers of the Clayton Police Department in North Carolina. He wound up performing an impromptu duet with officer Victoria Lee, and the two saying a very powerful rendition of “Amazing Grace.” Great stuff.

He’s not a member of the Harlem Globetrotters, but Los Angeles Police Department’s Arius George earned the name trick-shot cop for some incredible shots of his own. Look at this. The 40-year-old sergeant surprised a group of kids while in uniform, making that full-court shot, look at this, without looking. Man, that’s good.

Thanks for inviting us into your home tonight. That’s it for the SPECIAL REPORT, fair, balanced, and unafraid. “THE STORY” hosted by Martha MacCallum starts right now. And I think the president is starting right about now down in Florida.

END

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