Braun: Senate Majority Leader McConnell's been very clear if he gets SCOTUS nominee there will be a vote

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Braun: Senate Majority Leader McConnell's been very clear if he gets SCOTUS nominee there will be a vote

Sen. Mike Braun, R-Ind., weighs in on the battle to replace Supreme Court Justice Ruth Bader Ginsburg.

This is a rush transcript from “Your World with Neil Cavuto" September 22, 2020. This copy may not be in its final form and may be updated.

NEIL CAVUTO, FOX NEWS ANCHOR: All right, thank you, Bill, very, very much.

We are focused on Supreme Court air watch, if you will. All indications are a go right now that the president is going to select possibly among those four women you see as soon as Saturday.

We don't know the timing of it all, but all of this comes amid big developments among Republicans, some of whom were balking at doing this right now. But it has stopped at two, because Mitt Romney, a wild card in all of this, said that he thinks it's a good idea to proceed with the confirmation process and indicated he would support doing it right now.

The fact that Lamar Alexander feels the same way, Colorado's Cory Gardner feels the same way, Chuck Grassley, the man who used to head the Senate Judiciary Committee, feels the same way, and that the present chairman of that committee right now feels the same way means that the votes technically would be there to confirm whoever the president chooses to replace the late Justice Ginsburg.

Welcome, everybody. I'm Neil Cavuto. And this is YOUR WORLD.

Fast-moving developments we are following.

We're going to talk to a key senator in all of this, Indiana Senator Braun on this, among the Republican leadership, and how the sands shifted so quickly toward getting this process on, amid optimism that it could get done even before the election, as incredible as that seems.

Right now, let's go to Chad Pergram on Capitol Hill with the latest -- Chad.

CHAD PERGRAM, FOX NEWS CONGRESSIONAL CORRESPONDENT: Hey there, Neil.

Well, you're right. It did stop at two, only two Republican senators saying, maybe we should not consider a Supreme Court nominee this year. That was Susan Collins of Maine and Lisa Murkowski of Alaska.

The key here is that Mitt Romney, Republican senator from Utah, he gave the green light today to go ahead. And now we're trying to figure out what the timing is on all this.

Here's the Senate majority leader, Mitch McConnell.

(BEGIN VIDEO CLIP)

SEN. MITCH MCCONNELL (R-KY): The next step will be for Chairman Graham to lay out the way to handle this in committee. And when the nomination comes out of committee, then I will decide when and how to proceed.

(END VIDEO CLIP)

PERGRAM: Democrats are still fuming over the way Republicans blocked President Obama's nominee for the Supreme Court in 2016, Merrick Garland.

The Senate Democratic leader, Chuck Schumer, says Republicans argued the next president should pick that nominee, and he accused Republicans of duplicity.

(BEGIN VIDEO CLIP)

SEN. CHARLES SCHUMER (D-NY): We're supposed to believe this specious, flimsy and dishonest argument that it's about the orientation of the Senate and the presidency, or how angry Republicans are at Democrats and all the big scary things we might do in the future.

(END VIDEO CLIP)

PERGRAM: So, it's unclear just how quickly they can get this process started, maybe have a confirmation vote in a committee -- in the committee sometime in the next couple of weeks.

But they don't know yet if they would do this vote on the floor on which side of the election, do it before the election or after the election. That's unclear.

And we have another bit of news here this afternoon, Neil. The House of Representatives earlier this afternoon was supposed to vote on a stopgap spending bill to fund the government and avoid a government shutdown later this month. That hit a snag, and House Speaker Nancy Pelosi and the secretary of the Treasury, Steve Mnuchin, entered into renegotiations here.

They're trying to retool this. There's a problem with some provisions that aren't in the bill dealing with farmers. And the Senate majority leader, Mitch McConnell, he really dismissed this bill earlier. He said that the message of this piece of legislation the way it stands right now is -- quote -- "drop dead."

But we got word in about the past 20 minutes here that the Senate majority -- excuse me -- the House majority leader, Steny Hoyer, has said that they might forge ahead and vote on a retooled bill in the House of Representatives later tonight, if they can work -- work this out -- Neil.

CAVUTO: All right, Chad Pergram, thank you very, very much.

To the White House right now, where we do know the president is whittling that list down and might make an announcement, plans to make an announcement, we're told, sometime on Saturday.

To John Roberts with the latest there -- John.

JOHN ROBERTS, FOX NEWS CHIEF WHITE HOUSE CORRESPONDENT: Neil, good afternoon to you.

President Trump telling one of our affiliates earlier today, WJBX, that he is pretty close to having made up his mind, which would indicate that he probably just needs a few more hours, maybe a couple of days to think about it, and then he will make the announcement on Saturday.

He does have a presidential political rally planned in Pennsylvania on Saturday night. I'm told that that is still going to go ahead, so the timing for an announcement likely some time Saturday afternoon. In terms of sports, late Saturday afternoon, 3:00 to 6:00 is considered prime time, so the president may decide to step in then.

The front-runner, as we know it, at the moment is Judge Amy Coney Barrett of the Seventh Circuit Court of Appeals. She clerked for Justice Antonin Scalia. She was a professor and graduate at Notre Dame Law School.

She was a finalist for the last vacancy that was ultimately filled by Brett Kavanaugh, and it was kind of sort of widely held that, if the Ginsburg seat ever became available, that she would be the one to get the nod for that.

Another top contender is Judge Barbara Lagoa of the 11th Circuit Court of Appeals. She is of Cuban descent. She lives in Miami, though the 11th Circuit is headquartered in Atlanta. Putting her on the court could potentially help the president with Latino voters.

And that's one of the arguments that's being made to the president. Judge Joan Larsen of the Sixth Circuit Court of Appeals is also on the president's short list, we're told. She also clerked for Justice Antonin Scalia. So, she has something in common with Judge Amy Coney Barrett.

The president brought up her name -- and this is interesting -- the president brought up her name unsolicited twice in the last couple of days. So he's clearly thinking about her.

And then the fourth candidate that we know of that is really a potential here is just Allison Rushing of the Fourth Circuit Court of Appeals. President Trump talked about her the other day. She's 38 years old. The president saying that, if she were to live as long as Judge Ginsburg and stay on the court, she could be on the court for 50 years.

She is a favorite of evangelicals. There were a few conference calls among evangelical leaders, I'm told, yesterday, Neil, in which they really were singing her praises, and then started burning up the phone lines here at the White House.

I'm told by sources close to the vetting, though, that perhaps she is seen as being just a little too young for the Supreme Court right now, but certainly a contender for the future.

But most of the money is going on Judge Amy Coney Barrett, but, like anything, this could be fluid. The president could pick any one of those.

CAVUTO: Yes, at least, in her case, she has been thoroughly vetted. So she's a known quantity.

ROBERTS: Yes.

CAVUTO: So, if speed were the issue, that might help. We will see.

(CROSSTALK)

CAVUTO: John Roberts, thank you very much, my friend.

ROBERTS: But don't forget, though...

CAVUTO: Go ahead.

ROBERTS: ... that Democrats are particularly against her because of her perceived position on abortion.

So that could really end up being a fight.

CAVUTO: That's right.

Yes, all the vetting in the world won't wipe that out.

ROBERTS: Exactly.

CAVUTO: Thank you, John, very, very much.

Want to go to John Bussey right now, The Wall Street Journal associate editor and much more.

John, we're told this is all about getting it done. Republicans believe right now, with Mitt Romney open to a confirmation process, that that has sort of cleared a hurdle that would assure the votes would be there on a nominee.

Now, of course, this really depends on that nominee and what comes through the confirmation hearings. But what do you think, doable by Election Day?

JOHN BUSSEY, THE WALL STREET JOURNAL: Well, possibly by Election Day.

We're 42 days out from the election. The median number of days that it has taken to confirm a Supreme Court justice has been 69. But 42 is doable. I think, either way, the president has an advantage here.

The Senate has clearly indicated that it is -- at least this Senate has indicated that it wants to move ahead with a confirmation. So he could do it before the election. He could also do it after the election.

The new Senate won't be seated until January 3. So, he's got a lot of time between November 3 and January 3 to do it then too. The question is, who's this going to benefit more at the polls, the president or Biden and the Democrats?

CAVUTO: You know, what's interesting -- and you're right -- we have had times in the past where confirmation and the whole hearing process have been wrapped up in much shorter time period, John Paul Stevens, I mean, 19 days, Sandra Day O'Connor about 33 days, Justice Ginsburg herself 42 days.

But, again, we live in different times now, very, very different times. And I wonder, even with those Republican votes, the confirmation hearings themselves raise issues. There are other parliamentarian tactics that can drag it out.

So, play out that potential drama.

BUSSEY: Yes.

So, Mitch McConnell's being very careful about this for that reason. What will the Democratic opposition do to delay the process, to drag it out, as you say?

If they decide to do it before the election, the election itself may also complicate matters, Neil, because, depending about who gets control of the Senate, there may be a feeling among some of the institutionalists, those senators who really want to abide by kind of the intent of the Constitution, to perhaps change their vote if they get voted out of office or if they see that the Senate has changed hands and gone to the Democrats.

So, there's an incentive to do it before the election. It certainly helps the president from the standpoint of changing the topic away from the coronavirus and the Democrats hammering him for mismanagement of the problem.

Currently, it also helps the Democrats, because they have a flood of new fund-raising that's come in and a lot of new money.

CAVUTO: Right.

BUSSEY: There is the issue of the ACA, the Affordable Care Act, possibly going before that Supreme Court, and getting voted down by a new conservative majority.

And women's rights in general and abortion specifically, a lot of voters for President Trump are pro-choice. They're not all pro-life. So, Mitch McConnell may think, look, let's dash through that mine field, get it done before the election, get it done before the horizon changes.

CAVUTO: Right.

BUSSEY: Or he may decide that it's too dicey, we have to go through certain protocols, we have to vet carefully. Let's do it after.

CAVUTO: Yes.

And to your point, all bets are off in a lame-duck session. Votes aren't always guaranteed. We have done this a number of times, at least six times in lame-duck sessions, where a justice has been brought up to the Supreme Court.

But, again, they're not bound to do anything at that time. That's that limbo period.

John, thank you very, very much on all of that.

BUSSEY: Pleasure.

I want to go to the virus situation right now. We have been telling you all day about what's happening abroad and in Britain, where, of course, they are looking at the possibility of a second shutdown, amid sort of an ominous moment here in the United States.

Even though counts are improving and stabilizing, we did cross the 200,000 death mark right now, with better than 6.8 million cases, and some developments as well on a vaccine front, and some strict strategies in place by the CDC of what comes out and when.

Steve Harrigan following all that from Atlanta -- Steve.

STEVE HARRIGAN, FOX NEWS CORRESPONDENT: Neil, you're right, breaking news on the vaccine, but still some details need to be cleared up.

The Washington Post breaking the news that the FDA is setting stricter standards for any coronavirus vaccine, which would make it unlikely that a vaccine could be produced and available by Election Day.

This news comes, as you mentioned, that we pass the 200,000 death toll mark in the U.S. in just eight months' time. It makes the U.S. the country with the highest confirmed death toll, and, across the U.S., people still dying at an average now of about 770 per day.

And as the cold weather comes, more people inside, that number could go up. In spite of The Washington Post report and in defiance of it earlier on, President Trump confirmed once again that he believes a coronavirus vaccine will be ready and available well before the end of the year.

Here's President Trump.

(BEGIN VIDEO CLIP)

DONALD TRUMP, PRESIDENT OF THE UNITED STATES: We will distribute a vaccine. We will defeat the virus. We will end the pandemic. And we will enter a new era of unprecedented prosperity, cooperation and peace.

(END VIDEO CLIP)

HARRIGAN: England too suffering a setback with virus numbers.

Officials there concerned about a potential second wave, the number of new cases in England doubling every seven to 20 days. They have put in new restrictions on restaurants and pubs and have begun finding people for failure to isolate, this to try to slow down that rapid spread in England - - Neil, back to you.

CAVUTO: All right, thank you, my friend very much, Steve Harrigan on all of that.

To Steve's point, it's not just in the United Kingdom, of course. In France and in Spain, parts of Italy and certainly in Israel, they're either looking at slowing things down, restricting, or outright lockdowns again. In Israel, that's what's occurring as we speak.

They're also getting worried about a spike in cases in India, even though the Taj Mahal itself has been reopened, the first time since the pandemic first struck. So, it depends on where you are and what you're looking at.

In the meantime, how the fight over a Supreme Court justice is minimizing and stopping almost action on anything else.

Senator Mike Braun of Indiana on the implications of that -- after this.

(COMMERCIAL BREAK)

CAVUTO: All right, Supreme Court battle on, everything else off.

Don't blame a lot of folks for being cynical of the pace of Washington, where the rap on politicians is that they can't chew gum and walk at the same time. I think that's a fairly easy thing to prove one way or the other.

I don't know if Senator Mike Braun has tried it, the Republican who got it in, in 2018 on what's at stake right now.

Senator, this is going to be an interesting battle. And the feeling seems to be that it will be all centered on getting a conservative justice to the Supreme Court, but at the expense, likely, of almost everything else.

What do you think of that?

SEN. MIKE BRAUN (R-IN): So, don't put me in that category of not being able to do two things at once.

Remember, I'm a Main Street entrepreneur. Haven't been in this place all that long.

You are right, though. This is going to be the thing that dominates the calendar until we're through. It wasn't like a lot else was going to get done, Neil, because I came here to work on things like the high cost of health care and climate and other things.

And that's been shoved aside by a government shutdown when I got here, impeachment, COVID, and so forth.

But, here, I do sense that we're going to make the most out of the time that we have got. And when you look at precedent, you look at history, I think Leader McConnell has been very clear. If he gets a nominee, there will be a vote. And many of us want to see that happen before the election as well.

CAVUTO: Now, I know, again, you were not there in 2016 with the Merrick Garland controversy, and Democrats have been raising that, pounding that, the hypocrisy of that, that 10 months before Barack Obama's term had even scheduled to end, the Republicans were not going to take up that nomination, and here they are taking up this one.

Now, the reason Mitch McConnell uses is that it's different now. We have got parties under the same control in the White House and in the Senate.

Do you buy that?

BRAUN: So, I think that is a difference, because, historically, the 15 times it's occurred, eight of them have had the same circumstances.

Seven of them had a nomination and a successful movement into the Supreme Court. Of the other seven, it just happened a couple times, where it came to fruition, when parties -- when the president and the Senate were of different parties.

It's a vivid memory to me, Neil, because almost two years ago to the date, I remember sitting in the room when Donnelly decided that he was going to vote against Kavanaugh.

And when that whole thing transpired, including all the theatrics with it, my race and Josh Hawley's race in Missouri were considered toss-ups. We knew we were slightly ahead. It was tangible, it was palpable. When the Kavanaugh hearing occurred, and when my opponent said he was going to vote against it, it popped us up to two to three points.

That's the most recent example of how it's had impact. Had we not won in Missouri and Indiana, of course, I wouldn't be here, and we would not be in the majority as well.

That's the lesson that we can turn to of how important it is.

CAVUTO: Lisa Murkowski of Alaska, Susan Collins of Maine didn't want to be part of this process right now.

I don't know what they would do, if they wait until a final vote, if they vote. What do you think of them and how they -- how they should move right now? They have indicated they're against this. So, I assume they sit it out. Should they sit it out?

BRAUN: You know, I think it depends on their motivation, which I'm not sure what it is.

If it's the timing, I think there could be a change of heart. If it's the nominee, which I think is going to be different too, the Kavanaugh hearings were about as histrionic and as belabored as you're going to get.

When you look at who I'm hoping is nominated, Amy Coney Barrett from Indiana, she's got a stellar record. She is a constitutionalist, a textualist, one that will not legislate from the bench. And she is a woman, to boot, that I think is going to -- Trump has said it will be a woman, a female nominee. I wonder if there might be a change of heart.

And then we had another variable cleared up just a few hours ago, when Senator Romney said that he will be there to vote.

CAVUTO: Right.

Well, that changed it. You're right. That did change it, yes.

BRAUN: And he indicated that it would be in the right direction, so, big difference.

CAVUTO: Right.

All right, Senator, good catching up with you. Thank you very, very much.

BRAUN: You're very welcome.

CAVUTO: We will see how everything goes.

In the meantime, I want to draw your attention to Kamala Harris. She's on the campaign stump right now. And she's been busy holding a roundtable in Michigan. But watch her very closely. She sits on that Judiciary Committee.

She was an aggressive questioner of Brett Kavanaugh. But she would be in that role, presumably, for Democrats on the committee if we get a process going with a Trump pick as soon as Saturday. So, think about that and how it changes her plans and the Democratic ticket's plans campaign-wise.

She can do a lot less of this and a lot more sitting around at a committee hearing in Washington -- after this.

(COMMERCIAL BREAK)

CAVUTO: Investors calming down a little bit today.

The S&P 500 stopped a four-day losing streak. The Nasdaq advanced as well, led by technology shares, which were getting battered, coming back, including Amazon, for one day. The comeback ensues.

More after this.

(COMMERCIAL BREAK)

CAVUTO: All right, Kamala Harris at a roundtable discussion going on in Michigan right now. That's a crucial state.

As you know, all these visits on the part of the candidates to these so- called battleground states, and Michigan is certainly one that both sides are eying.

But keep in mind the possibility that, if hearings get going, she's the Democrats' star inquisitor on the Judiciary Committee. No one can forget, depending on your point of view, whether you loved her or you hated her, but she was certainly very aggressive when it came to going after Brett Kavanaugh.

And a lot of people say she would presumably serve the same role in hearings for the next presidential pick for the late Ruth Bader Ginsburg's justice seat here.

So, this complicates things. If she is in Washington throughout most of these hearings, she's obviously not on the campaign trail.

Jacqui Heinrich following all of that from Wilmington, Delaware.

Jacqui, what are we looking at here?

JACQUI HEINRICH, FOX NEWS CORRESPONDENT: Good afternoon, Neil.

Yes, that would certainly change the landscape of what this Biden/Harris campaign has looked like, with the limited travel it's had. But Joe Biden said his piece on Sunday, urging Republican senators not to vote on a nominee until after the election.

But, beyond that, both Biden and Senator Harris have been trying pretty hard not to step into the middle of this heated political battle. If the Democrats win the White House and the Senate, President Trump's third nominee to the high court is confirmed, Democrats are weighing a number of plays, like creating statehood for highly Democratic territories like D.C. and Puerto Rico, and also adding justices to the Supreme Court.

Last year, Biden indicated he would not support court packing. And, yesterday in Wisconsin, he refused to answer where he stands on that issue now, saying: "Let me tell you why I'm not going to answer that question, because it will shift the focus. That's what Trump wants."

Biden was also pressed on his 2016 comments, when he pushed for President Obama's nominee to get a vote in an election year. He said the circumstances were different. It was nine months out from the election, and now we are in the very last stage of this race.

Senator Harris has been really even more silent. Today in Michigan, our colleague Peter Doocy tried to get some answers.

(BEGIN VIDEO CLIP)

PETER DOOCY, FOX NEWS CORRESPONDENT: Senator Harris, should Democrats try to pack the court next year?

(END VIDEO CLIP)

HEINRICH: In framing how to talk about this, Biden's team reportedly urged Democrats to link the court vacancy to broader issues, such as health care, raising concerns a new justice could overturn the Affordable Care Act and with it guaranteed coverage for people with preexisting conditions, especially amid the pandemic.

But some other Democrats have been vocal about the number of nuclear options that are on the table if all this pushes through, but Biden and Harris resisting getting into that, at least for now -- Neil.

CAVUTO: Jacqui Heinrich, thank you very, very much.

In the meantime, let's sort of pick apart what we're going to be looking at in the next few weeks, maybe right up to and through Election Day, over this Supreme Court vacant seat battle.

Kaylee McGhee follows -- following all this from The Washington Examiner. We have Kristen Hawn, the Democratic strategist, John Thomas, the Republican strategist, fair and balanced, all on deck here.

(LAUGHTER)

CAVUTO: Kaylee, from The Washington Examiner, as you look at this, what -- the role of Kamala Harris is an interesting one to me, because that's her thing. She's a great prosecutor, whether you like what she's saying or not. She's pretty aggressive.

And it could cut both ways, if she is spending all their time in Washington for these hearings, and not on the campaign trail. But what are they looking at?

KAYLEE MCGHEE, THE WASHINGTON EXAMINER: She's going to need to be careful about how she addresses this nominee, because if she exposes a more radical agenda, Trump will easily be able to use that against her.

And right now, her record really speaks for herself. So you have Amy Coney Barrett, who is one of Trump's top picks. She is a devout Catholic, mother of seven, and already the left has been attacking her for her Catholic faith.

Just last year, Kamala Harris proposed a religious litmus test for government employees who are involved with the Knights of Columbus, which is a Catholic organization. So you already have this streak of anti- Catholic bigotry in Kamala Harris. She's proposed that before.

And if she goes down that road once again, Trump's campaign will easily be able to use that against her.

CAVUTO: Well, we will see.

John Thomas, the other issue is, the president now, by looking at presumably at only women for this pose, could score some points among women, a demographic with whom he has not fared well, at least in some of the more prominent polls. What do you think?

JOHN THOMAS, GOP STRATEGIST: Well, this is a big opportunity for President Trump. And it's a big risk for Democrats, Neil.

And here's why. Yes, of course, nominating a woman would give Trump a slight edge in that demo. But, more to the point, Neil, if Democrats give even a shred of the treatment to Amy Barrett, or wherever the female nominee is, that they gave to Brett Kavanaugh, it's very likely to alienate that key demo of college-educated suburban white women that Trump has to recapture if he wants to hold on to the House, hold on to the Senate and win the presidential election.

So, it's more of a risk, I think, for Democrats who are -- you know will overplay their hand in this process.

CAVUTO: Well, it depends, too, even on the gender of the questioner, right?

I know we live in modern times. We try not to think about that.

But, Kristen, I'm wondering, if Kamala Harris is the one doing a lot of the aggressive questioning, how does that change things and the dynamics?

KRISTEN HAWN, DEMOCRATIC STRATEGIST: I think that we need to be -- any senator who is looking at a nominee for a post of that importance needs to be tough.

And, as a kind of independent woman myself, I was encouraged by Senator Harris' lines of questioning. I think that these justices or a potential justice should be ready for that type of questioning.

I also think that it's -- women aren't monolithic. College-educated women aren't going to all be turned off if a justice gets the tough questioning she deserves.

So, I think that it can cut both ways. It's interesting with the electorate. We're kind of looking at some of these swing states and these swing voters even down-ballot into these House races. And, yes, there are some of these candidates are -- or -- sorry -- some of these voters who will go home on the issue of life, being pro-life, go home to the Republican Party.

But I think the Biden campaign is smart, because they are not the far left. People are trying to say that they are, but they are not. And they represent where people are. And people still care about health care. They care about ACA, preexisting conditions and COVID.

So they're very smart to be pointing people back to those real issues that people still care about. So we're all talking about this now. It is extraordinarily important. But I think voters are still looking at a number of different issues as they're going into November.

CAVUTO: Well, I'm just curious, Kaylee, where this goes, if it goes beyond the election, right, I mean, if it is not resolved as quickly as Mitch McConnell and others hope, because all bets are off, particularly in a lame-duck Congress, what happens.

But your thoughts on that and the need for speed, as one senator was telling me?

MCGHEE: A lot of it is going to depend on what happens with the Senate, which is why they're trying to expedite this process as quickly as they can, because if the Republicans do lose the Senate, then the nomination could be lost for good.

But that's another reason why some conservatives are proposing holding off nominating and confirming a justice, because a lot of vulnerable Republicans might end up losing their Senate seats if they end up voting in favor for this nominee, such as Susan Collins.

She might just decide to not vote in order to kind of save her election. But that's what some conservatives are proposing. And it's a fair one. But I don't think that it's realistic right now.

CAVUTO: John, there is also the possibility that Arizona race, where the Democrat is presently leading in the polls, if he beats Senator McSally, they would have to seat him during a lame-duck session, I guess, given the vagaries of that race.

J. THOMAS: Yes.

CAVUTO: So, that could change the math, right?

J. THOMAS: It could change the math.

And let's not forget that the way Brett Kavanaugh was treated had a dramatic impact on the election. It swung it harder to the right in the final days, as Americans started to feel sorry for Brett Kavanaugh.

And to your earlier point, Neil, I don't care what the gender is of the questioner of the female nominee. If you're staging walkouts, like Kamala Harris did, if you're accusing the nominee of being a serial rapist, that is not appropriate and will have electoral consequences.

I would caution the Democrats to actually try treating this nominee fairly and appropriately, as a confirmation should be.

CAVUTO: Well, it's still early.

We will get an idea first on who the nominee is and then where we proceed from there.

Guys, I want to thank you all very, very much.

As they have been speaking here, we're keeping one eye on Texas and the flooding right now, with another storm, and this one's a doozy. It's the first Greek named tropical storm, Beta.

There will be more -- after this.

(COMMERCIAL BREAK)

CAVUTO: All right, when it rains it pours, quite literally.

And in the case of Tropical Storm Beta, it's bringing a lot of heavy rain and flooding to Texas, could soon make its way to Louisiana. And it doesn't stop there. A northward trajectory could be soaking a lot of states in the process.

Jeff Paul following all of this in Galveston, Texas.

Hey, Jeff.

JEFF PAUL, FOX NEWS CORRESPONDENT: Yes, Neil, it's been raining on and off throughout the morning and afternoon.

And, as a result, you could see some of this localized flooding throughout Galveston and really all the way up through the Houston area, where we have seen a lot of cars getting trapped on the highway, people having to be rescued, as these floodwaters just kind of creep up from some of the bayous that are just packed right now with too much rainwater.

Now, the Beta has been downgraded from a tropical storm to a tropical depression. That doesn't really change anything, because this really wasn't ever going to be a wind event. It's always been a rain event.

And I think what everyone's kind of holding their breath right now for is to see how long it sticks around. A lot of people remember what happened during Harvey. Some folks saying this is kind of the worst they have seen maybe in the last 10 years or so.

(BEGIN VIDEO CLIP)

STAN MCCARTY, TEXAS RESIDENT: It's the most flooding we have seen here in about 10 years, since right after Ike.

The dunes are gone from Laura. So, it -- and they had tried to make a lot of repairs, building up mounds of sand out there. But now they're all gone.

(END VIDEO CLIP)

PAUL: Now, thankfully for the people who live along the Texas coastline, the bands that are coming through right now are getting weaker and weaker, it seems, by the hour.

And there are times where we will have three or four hours of sunlight and no rain, and then another band will come through. But it is starting to show signs that this slow moving storm is heading north and east, not good news for people in Louisiana, who have had already a rough go this hurricane season -- Neil.

CAVUTO: To put it mildly.

Thank you, my friend, very much, Jeff Paul following all of that.

All right, on the Supreme Court drama, forget about who ultimately will fill Justice Ginsburg's seat. Until then, it is an eight-person court.

So, the likelihood of 4-4 decisions isn't entirely unlikely. So, imagine the possibility we have some controversies with the election, much like Bush-Gore in 2000. Then what?

Would you trust eight justices to be in unison in that event?

Jim Trusty, the former DOJ prosecutor, on legally what we could be looking at with a 4-4 court -- after this.

(COMMERCIAL BREAK)

CAVUTO: All right, this quest to replace Ruth Bader Ginsburg is to get us back to nine justices on the Supreme Court of the United States. Right now, we have eight.

That does not mean all activity at the Supreme Court stops, including right through the election, if we still don't have a replacement for Justice Ginsburg. And there lies the rub and maybe problems. Imagine if we had a Bush-Gore situation, like we did back in 2000, and it's a eight-person court. Then what?

Jim Trusty, besides being an outstanding lawyer and a former DOJ prosecutor, knows a thing or two about Supreme Court history and what their responsibilities are.

I would imagine, Jim, they get a little more complicated in the event of a 4-4 court. By that, I mean the possibility of a 4-4 tie. I'm not talking about where their political leanings are.

What do you think? What is the risk the longer it stays that way?

JAMES TRUSTY, FORMER FEDERAL PROSECUTOR: Well, the risk is pretty significant.

I mean, it's not the first time the court would dip down to eight for a while. We have had deaths and retirements and even recusals from cases before, where the justices were limited to eight.

CAVUTO: Right.

TRUSTY: In a normal flow of work, they can actually even sit on a 4-4 split, wait until the next term, and hope that they get back up to nine to decide it. That's not a particularly functioning model, if we're talking about election litigation, starting up now or October or November.

So they really do need to have a ninth, if they want to have that kind of precedential value over any sort of election chaos. But, if they don't, if they stick at 4-4, the way it works is basically, it's like baseball, the tide goes to the runner. It defaults to the lower court ruling.

So, if a state Supreme Court ruled one way or another or a federal circuit court, that ruling will become the law on that particular issue. And the Supreme Court will have no precedential value because of the 4-4 split.

CAVUTO: Now, obviously, if there's anything weird that happens in this election -- and there are a lot of fears that might be -- would the first stop still be for either arguing party going to the Supreme Court, or a different court, or, by default, do you go to the Supreme Court?

TRUSTY: No, usually, it's -- there's kind of a pyramid here, where it's very tough to get to the top of the pyramid early on to get to the Supreme Court.

So, most of this litigation, if you go back to Bush vs. Gore, for instance, it wound its way through the state court on an expedited basis. I'm talking extremely fast-track. So, that is probably how this would still happen.

And, frankly, if you have only eight, if you have some indication, for instance, that Justice Roberts may stray over to the other side of the aisle, there is every likelihood that the Supreme Court won't be trying to take cases, reach down and take them early, because they're going to want them to be resolved by the lower courts, if possible.

CAVUTO: Yes. You know, Jim, it's interesting you mentioned Justice Roberts.

He's been sort of like the Anthony Kennedy vote now, the swing vote. If it gets to be a 6-3 conservative court, there's less to swing, right? I mean, what changes dynamics-wise.

TRUSTY: Right.

Look, on the assumption that there's a relatively conservative jurist that comes in and makes it 6-3, then the cohesiveness of the Supreme Court behind closed doors becomes a little less important, because you have a pretty significant majority vote there, if they're kind of tacking the line conservatively.

But, Neil, what you have seen over time is a lot of fairly conservative jurists will be hard to predict. And I'm not sure that's necessarily a bad thing. If they're judging cases on the merits of the case, instead of some sort of political predisposition, then they should be a little bit unpredictable.

And so maybe Justice Roberts falls into that category of trying to resolve the dispute in front of him more than just having a political view. But 6-3 conservative appointees certainly is a pretty significant majority for the run-of-the-mill cases that go through the Supreme Court.

CAVUTO: Do you think we will have a nominee by election, in other words, a confirmation approval by Election Day?

TRUSTY: Well, it sounds like we will have a nominee by Saturday, right?

On the approval, I mean, look, there's going to be an awful lot of street theater. If we thought the Kavanaugh process was crazy, wait until this next one. And it may be about Catholicism. It may be people walking out of the Senate and having protests on the Supreme Court steps.

I mean, there's going to be a lot of street theater. But I think that, legally and practically, it's certainly feasible to get a candidate through in this time period.

Ginsburg's nomination and confirmation was 42 days. So, it's certainly doable. But that's a political question more than a legal or a practical one.

CAVUTO: I was trying to slip that in and embarrass you, see if I could pin you down, but I failed once again miserably.

(LAUGHTER)

CAVUTO: Jim Trusty, always good having you, my friend.

TRUSTY: All right, Neil, thanks.

CAVUTO: In the case of Justice -- same here.

In the case of Justice Ginsburg, she was ultimately approved 96-3. Gone are those days.

What about the fast approval days? Sandra Day O'Connor, it took her 33 days.

The guy who literally wrote the book on that -- after this.

(COMMERCIAL BREAK)

CAVUTO: All right, these are some alarming numbers that show it wasn't all that long ago that the confirmation process was fairly swift.

Let's take a look at some more memorable examples, in the case of John Paul Stevens, where it took about 19 days, a little bit less than 25 days for John Roberts, Sandra Day O'Connor 33 days, 42 days for Ruth Bader Ginsburg, all of them having overwhelming approval.

The guy who literally wrote the book on all of this, Evan Thomas, the author of "First: Sandra Day O'Connor," joins us right now.

Evan, thank you for joining us. I appreciate it.

EVAN THOMAS, HISTORIAN: Hi, Neil.

CAVUTO: Let me ask you a little bit about that process, that it can be done. Democrats, meanwhile, saying it shouldn't be done, not now. But it is going to happen.

But it won't -- can it be done that swiftly, the way you refer back to the days of Sandra Day O'Connor and some of these others?

E. THOMAS: Yes, it can be. I agree it's going to -- there's going to be a lot of theater here. But it can be done.

My first instinct on this was, they should slow it down and not try to do a straight power play. But I changed my mind. I think it can be done.

It looks like Trump has his choice. Seems it's Amy Coney Barrett, maybe somebody else, but they have a choice. They have the votes with Romney. So, I think it can be done.

There will be a lot of showing off. It's an election year, but it's doable.

CAVUTO: All right, we have had many in election years.

I just wondered, knowing Sandra O'Connor as well as you did -- I believe she and Justice Ginsburg served at least together for a dozen years or so. So they knew each other very, very well. They were kindred spirits, not maybe philosophically, but just being the first women on the highest court.

What would, do you think, Sandra O'Connor make up the process now, and doing this now? I know she might have been concerned. I think I heard you somewhere talking about how the Merrick Garland situation was handled four years ago, but what would her thoughts be?

E. THOMAS: Well, I think it's somewhat of a close call for her, because the last -- her last public statement was that Mitch McConnell was wrong to stop the Merrick Garland nomination.

She doesn't like power plays. She likes regular order.

But I think, in this case, as I think about it, she'd be OK with -- because the rules are, the president nominates and the Senate confirms. Those are the rules.

CAVUTO: Right.

E. THOMAS: It's happened plenty of times in the last century.

I think -- I don't remember the number, but it's something like seven times, here in an election year. So it can be done. So my guess -- and this is a guess -- this is a guess -- Senator -- Justice O'Connor has Alzheimer's, and she's not -- obviously not talking about it now.

CAVUTO: Right.

E. THOMAS: But my guess is that she would go along. She wouldn't be happy with the theater. She wouldn't be happy with power plays. But she would be OK with this.

CAVUTO: Real quickly, Evan, is it your thinking that this becomes a superseding issue, even more than the economy, the state of the virus, that this will trigger the passions that either get people out to the polls or don't?

E. THOMAS: No.

I think people care. They do. And there's going to be a lot of theater, and it's going to affect the debates. But I don't think this is the decisive issue. I don't think the Supreme Court is ever the decisive issue. I think it's an issue, but it's not the deciding one.

I think COVID, Trump. There -- the economy. There are bigger issues, and they will remain bigger issues.

CAVUTO: All right. We shall see.

Evan, thank you for taking the time. Great seeing you, Evan Thomas.

E. THOMAS: Great to see you.

CAVUTO: Just a great historian, great writer as well. All right.

And again to the corner of Wall and Broad. We had stocks coming back today, confidence that maybe they can keep that going. We will see. It's still early, still a bumpy ride.

Here comes "THE FIVE."

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