Kavanaugh grilled on cases during confirmation hearing

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Kavanaugh grilled on cases during confirmation hearing

Supreme Court nominee Brett Kavanaugh lays out his judicial philosophy in response to questions from Senate Judiciary Committee; reaction and analysis on 'The Five.'

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This is a rush transcript from "The Five," September 5, 2018. This copy may not be in its final form and may be updated.

JESSE WATTERS, CO-HOST: A marathon, Kavanaugh confirmation hearing is still underway. We're monitoring it. And we'll bring you the major developments as they come. Hello, everybody. I'm Jesse Watters along with Katie Pavlich, Juan Williams, Dana Perino, and Greg Gutfeld. It's 5 o'clock in New York City, and this is "The Five."

More Democratic obstruction and outbursts from left-wing protesters on Kavanaugh's first full day of questioning by the senate judiciary committee. Senate minority leader Chuck Schumer tried unsuccessfully to shut down the hearing earlier.

(BEGIN VIDEO CLIP)

SENATE MINORITY LEADER CHUCK SCHUMER, D-N.Y.: The Republican majority on the judiciary committee is pressing forward with the confirmation hearing on a Supreme Court nominee whose record has largely been shielded from the senate and the American public. The Republican majority is deliberately obstructing the senate's constitutional duty to fairly and thoroughly conduct our advice and consent powers.

(END VIDEO CLIP)

WATTERS: President Trump also weighing in on how his Supreme Court nominee is handling the grilling from lawmakers.

(BEGIN VIDEO CLIP)

PRESIDENT DONALD TRUMP: I'm happy with the Kavanaugh hearings. I've watched today for a little while. I saw some incredible answers to very complex questions. He's an outstanding intellect. He's an outstanding judge. He was born for the position. I think that the other side is grasping at straws. And really the other side should embrace it because you're never going to find better, in terms of talent or intellect, than what you have in Brett Kavanaugh.

(END VIDEO CLIP)

WATTERS: Judge Kavanaugh easily fending off Democratic attacks. He also laid out his judicial philosophy and, of course, answered questions about Roe v. Wade.

(BEGIN VIDEO CLIP)

BRETT KAVANAUGH, SUPREME COURT NOMINEE: I'm an independent judge. For 12 years I've been deciding cases based on the law and the precedent.

UNINDENTIFIED MALE: What sort of loyalty will you owe to the president?

KAVANAUGH: If confirmed to the Supreme Court and as a sitting judge, I owe my loyalty to the constitution.

UNINDENTIFIED FEMALE: What would you say your position today is on a woman's right to choose?

KAVANAUGH: As a judge, it is an important precedent of the Supreme Court. I mean, Roe v. Wade and Planned Parenthood versus Casey had been reaffirmed many times. Casey is precedent on precedent. And I understand the significant of the issue. I always try, I do hear of the real-world effects of that decision.

(END VIDEO CLIP)

WATTERS: So, Dana, do you think that answer about Roe v. Wade will satisfy Democrats who are upset about his nomination or not?

DANA PERINO, CO-HOST: Well, it is the same answer that Elena Kagan and Sonia Sotomayor gave in their confirmation hearings and that was satisfactory to them. So, it really isn't about that answer. It's what they believed to be the underlying political belief of that person. So, I say, I thought he answered it fine because he answered it just as the other nominees had done. I really think he was untouchable on substance today. At the beginning when he started quoting Federalist 69, Hamilton, and then this could go through all the cases. I mean, it really separates the people who just watch legal dramas on TV versus the one who are actually real legal scholars.

WATTERS: I was pulled back from citing the Federalist 69 during this show.

PERINO: Yeah, you don't want to lose the audience.

WATTERS: Yeah, it's going to go over their heads.

GREG GUTFELD, CO-HOST: I saw that on Cinemax.

PERINO: Yeah. Well, that was an interesting one. That's for sure. I do think -- so he was compelling, personally. There were some lighter moments, but that was with the more senior members of the committee on the Democratic side. Even Senator Feinstein at the end of her questioning said thank you for being so forthcoming. There was a funny moment when he was asked what he wanted to be remembered for, and he said I want to be remembered as a good dad and he moved on, and Feinstein whispers, and good husband. And there's laughter. And so, it's like, even if these Democrats don't like President Trump, it's hard for them not to like Brett Kavanaugh when he's there answering all of their questions.

Interestingly to me, I believe that the Democrats had started to pivot from trying to block his nomination to trying to influence him. And I would point specifically to Senator Whitehouse, the Democrat who said he was concerned about amicus briefs and who -- and these outside groups who are funding them and wasting the court time and this was bad, it could -- basically it was like when you get on the bench, could you check into this? And Brett Kavanaugh said I'm actually worried about that too. Yes, sir, I would be happy to.

WATTERS: You've mentioned some of the senior members asking questions. Some of the junior senators on the Democratic side are going to come up in a little bit. Senator Booker, perhaps, who Gutfeld has a great imitation. I don't know if he's going to share that, but we're going to dip in to Booker if he comes up in a little bit.

GUTFELD: Yes, I only do it for special occasions. I have an answer to this endless marathon because we know -- let's face facts. We know how this movie ends, right? We know who's going to vote which way and who's going to vote against. It's kind of like watching Die Hard or Die Hard 2. You fast-forward through the slow parts. So I have a solution, they should record these hearings but don't air it live, and then a week later air it but it's we fast-forward through it. So we sit here and we can boil this down. Four days into like 40 minutes to the vote. So we don't have to suffer through this. So, we've already have it like a move. And so we all sit there we just fast -- OK, this is good. And then we skip this part because, frankly, it is interminable. And the protesters, I think they're giving protests a bad name. I'm very, very, pro, pro-protest. But not all protesters are crazy, but I'm convinced that all crazy people are protesters. It feels like a mob action, a frustration that they can't somehow, you know, have an impact. So all of these lonely cranks get together and they scream like, you know, hyenas in a bear trap. I'm sorry. I find it objectionable.

WATTERS: I thought you're going to say all crazy people are Democrats. But you would never say that.

GUTFELD: I would never say that because, you know what, I'm not into the tribal thing.

WATTERS: No, no, no.

(LAUGHTER)

(CROSSTALK)

WATTERS: The other day -- and it reminded me of something you've said in the past, that TV cameras and the networks shouldn't zoom in on the protesters when they're shrieking like hyenas and giving them all the attention. Instead, like a football game, if you have some streaker run out into the 50-yard line, Juan, NBC and CBS and Fox don't take it because they don't want to encourage that type of behavior. Do you think that's a good idea?

JUAN WILLIAMS, CO-HOST: I'm surprised. But the problem may be that I was watching Fox, but I didn't see that they ever focused on one of the protesters.

PERINO: No, we don't very much.

WATTERS: I've seen it on a few occasions.

(CROSSTALK)

WILLIAMS: But, anyway, I would say that the news out of this is -- one, I wanted to just double down on something Dana said. I think the Democrats acknowledge the reality. It's going to be very hard to stop this nominee. They don't have the votes. At the same time, what you hear from Republicans, Senator Graham spoke to this today is, hey, look at the number of votes that prior candidates got, Republican or Democrat, people know Republicans are going to nominate conservatives. Liberals are going to nominate liberals. And he said, but I'm so sorry that you won't be able to say to your kids, your family, that you got 90-plus votes in support, which is what, for example, Scalia got. Or what -- I think it was up in the 60's, maybe -- but 60's I'm sure that Kagan and Sotomayor were able to get, right? So it's bipartisan. But we live in such polarized times that right now he's just going to -- he's not going to get any Democratic votes, I don't think. I know you guys are salivating over red state Democrats.

WATTERS: How many votes did Gorsuch get, Juan?

(CROSSTALK)

WATTERS: I think it's 60 or 70.

WILLIAMS: I think he got.

PERINO: I think he can get some Democratic votes. The red state Democrats up for reelection.

WILLIAMS: I'm not sure it matters at this point because I think the bigger point.

KATIE PAVLICH, GUEST CO-HOST: It matters a lot, actually.

WILLIAMS: Well, no. Oh, would it be nice. But it doesn't matter in terms of Graham saying we can get you up so that -- it used to be that the senate would be sort of unanimous. I mean, you guys.

PERINO: But also it's used to be that you needed 60 votes, but who change that?

PAVLICH: Harry Reid.

WILLIAMS: Oh, I know who change that, senate leader Mitch McConnell. This is one of the fables put up by Republicans. Oh, Democrats -- no, Democrats changed.

(CROSSTALK)

PERINO: When Harry Reid changed it for confirmation, Mitch McConnell said be careful what you wish for. This will come back to hurt you.

WILLIAMS: Yeah, because he ratcheted up to the Supreme Court.

PAVLICH: There's a tweet from Harry Reid thanking everybody who encouraged him to do filibuster reform so that they could do it exactly what they want, and now, today, Democrats are regretting that they ever did that.

WILLIAMS: Well, OK. I just disagree because I think that it was Republicans who did.

PAVLICH: But it wasn't.

WILLIAMS: . filibuster on a Supreme Court nominee, fact. But here's the thing about.

WATTERS: That's not a fact.

WILLIAMS: It is a fact.

(CROSSTALK)

WATTERS: But it started in the lower court.

(CROSSTALK)

WATTERS: Sour grapes. I

WILLIAMS: Oh, sour grapes. You have a different case. But let me just say on the merits here that I think the important thing that is going on is the Democrats are trying to suggest that, look, all this guy is, is a rubber-stamp. He's a political actor. He's been a political actor all his life. And in specific, that he's a guy who would let President Trump off if Trump is ever -- tries to self-pardon himself or request or reject the subpoena from a prosecutor.

WATTERS: Katie, do you think he would do that? Do you think he's just a Trump rubber-stamp or do you think.

PAVLICH: I don't. Today, we learned that he ruled against the Bush administration in a very important terrorism case.

PERINO: He ruled against the Bush administration 27 times. And the one that really stun was the Handong decision.

(CROSSTALK)

(LAUGHTER)

PAVLICH: But on the lighter side, this what Greg was saying, this has been a long day. I would say that I am happy I got some Harvard education without the price tag today by listening to Brett Kavanaugh. But I really like when he talked about playing as a team, and I think he was showing his bipartisanship. And the idea that he's going to go into the Supreme Court, it's a team of nine, he could be influence by the other justices who's worked with Elena Kagan. The Ted Cruz exchange when he talked about Merrick Garland, and Judge Kavanaugh has work with Merrick Garland, how they agreed on.

WATTERS: He said he's going to be influenced by Elena Kagan?

PAVLICH: He said that he learned a lot from Elena Kagan. I know you're changing your mind. My point is, the Democrats are seeing this now, and Republicans actually helped portray this that he's not this right-wing crazy guy. He's actually pretty moderate, middle-of-the-road conservative.

WATTERS: He's a moderate?

(LAUGHTER)

PAVLICH: I'm crushing all of Jesse's hopes.

WILLIAMS: Jesse likes.

(CROSSTALK)

WILLIAMS: Jesse wants a right wing Trump -- how would you say it my poet Lauriat friend? You want someone who is Trumpian on the courts.

PAVLICH: He's afraid he's going to be another Kennedy.

PERINO: No, actually -- can I just say one last thing? We've learned a lot about the founding of the country, and Federalist 17 and all this just to say, but advised and consent is what the senate is supposed to do, and it was purely about, for a long time, about qualifications. He is highly qualified. Everyone agrees with that.

WILLIAMS: Yeah. But it's not about qualifications.

PERINO: Not anymore.

WILLIAMS: . the swing seat on the court is going to the right.

WATTERS: The president is speaking right now because there is a resister who just came out in the New York Times and is anonymous and has said they're trying to control him. Go:

TRUMP: Point after point after point, if you look, almost 4 million jobs created since the election.

(APPLAUSE)

TRUMP: More Americans now employed than ever recorded in our history. So we have more people working today than at any point ever in our history. We've created 400,000 manufacturing jobs. Manufacturing jobs are growing at the fastest pace in more than 30 years. Economic growth last quarter was 4.2 percent. As you people know, it was headed down big and it was a low number, very low number. Would have been, in my opinion, it would have been less than 0. It was heading to negative numbers. New employment claims recently hit a -- think of that, the unemployment picture in the country is the best has been in 49 years. African-American unemployment, lowest in the history of our country. Asian-American unemployment, lowest in the history of our country. Hispanic-American unemployment, lowest in the history of our country. I mean, I'm just looking at these just point after point.

Under my administration, veteran's unemployment reached its lowest in many, many years. The -- let's say almost 3.9 million Americans have been lifted off food stamps just since my election. Then you go into all of the benefits that we've got from the tax cuts, all of you people benefited tremendously from the tax cuts.

(APPLAUSE)

TRUMP: Going to regulations. You go into right to try. Right to try is when you have the right if a person is terminally ill, you have a right to go and try and see whether or not a drug that's not approved yet can be used and utilized. They didn't allow that. A point after point, getting rid of the individual mandate. The most unpopular thing there is in Obamacare. Coming up with new health care plans. We've never had a period, even if you look at the Olympics, got the Olympics, the World Cup, you just saw then. They were in my office. Got the World Cup. Nobody has -- and we have started the wall. Nobody has ever done in less than a two year period what we've done. So when you tell me about some anonymous source within the administration, probably who is failing, and probably here for all the wrong reasons, no. And the New York Times is failing. If I weren't here, I believe the New York Times probably wouldn't even exist.

(APPLAUSE)

TRUMP: Someday when I'm not president, which hopefully will be in about six and a half years from now, the New York Times, and CNN, and all of these phony media outlets will be out of business, folks. They'll be out of business because there'll be nothing to write and there'll be nothing of interest. So nobody has done what this administration has done, and I agree it's different from an agenda which is much different than ours and it's certainly not yours yet, that I can tell you. It's about open borders. It's about letting people flee into our country. It's about a disaster and crime for our country. So they don't like Donald Trump, and I don't like them because they're very dishonest people. Remember this also about the New York Times, when I won, they were forced to apologize to their subscribers. They wrote a letter of apology. It was the first time anybody has ever done it because they covered the election incorrectly. So, if the failing New York Times has an anonymous editorial, can you believe it? Anonymous. Meaning gutless. A gutless editorial. We're doing a great job. The poll numbers are through the roof. Our poll numbers are great. And guess what? Nobody is going to come close to beating me in 2020 because of what we've done. We've done more than anybody ever thought possible in -- it's not even two years. So thank you very much.

(APPLAUSE)

WATTERS: All right, that was the president at a law enforcement event. Kind of going off script a little bit because of this major bombshell, the New York Times, this is an op-ed published anonymously. It says, I am part of the resistance inside the Trump administration. I work for the president, but like minded colleagues and I have vowed to thwart parts of his agenda and his worst inclinations. So this isn't a Democrat, Greg, who's come out and says, you know, I'm a Bernie bro and I'm -- mole. This is a -- I guess a Republican who wants the administration to succeed. They want a strong military, they want tax cuts, they want deregulation, but because of the president's character, because of the president.

GUTFELD: Style.

WATTERS: . style and ideology and the way he kinds of changes things and they say his immorality.

GUTFELD: Right.

WATTERS: They are not carrying out directives and are -- and he says many of them. Many officials and appointees believe this same way and they're protecting the country from Trump like he's a child.

GUTFELD: All right, there's two points to make here, one that's very specific and one that's general. In this editorial, we want the administration to succeed, they say, because he's already made America and safer and more prosperous. What more do you want than that, because you don't like his personality? We have already made America safer and more prosperous. What else do you want? You just prove the deep state, you moron. All right, so here's what the greater thing. I've been a boss. I understand how people talk about bosses. You know bosses are never normal, they're mercurial, they're demanding, they're often infantile.

(CROSSTALK)

(LAUGHTER)

GUTFELD: Here's the point and I would extend this to Woodward's book as well. Let's say you have cabbage for lunch, Jesse. And I said you're going to regret that. Woodward would write, ah, Greg Gutfeld just threatened Jesse Watters. The fact is if you follow somebody around on their behavior, and let's say -- this is Bob Woodward describing my day. He just insulted Dana Perino's dog, an animal that she loves dearly. And then he made a joke about her height, which I imagine she would be sensitive to because she didn't respond. She seems shocked by it. Then he yelled at the producers about a segment. Then he demanded a cough drop from the floor director, and then he started talking to himself and singing about food. I have described my afternoon. But the thing is because somebody like Woodward and the New York Times take these things literal and not in context about how a person is, how a boss is, they're completely clueless. Each one of us could have this treatment done by somebody who takes stark, literal interpretations of behavior that is out of context. He -- Woodward is a stenographer. He is not a great journalist. Let's be clear.

WILLIAMS: Let me just say, I think he is a great journalist. And I think that.

GUTFELD: He doesn't get people, Juan. He doesn't get people. If I insulted you, he would write as though I did something horrible to you instead if it was a joke.

WILLIAMS: Well, that would be wrong. In that case, he'd be wrong because he lacked context. But I don't think that's generally the case with Woodward. I think he's a pretty good reporter. I think he's a very good reporter. But second thing to say is the piece that was written anonymously in the Times is written by somebody who works for Trump.

GUTFELD: And leaked to the Times.

WILLIAMS: I don't mind, but I'm just saying it's written by a Trump person.

GUTFELD: A senior official who they know well. A person leaking to the New York Times.

WILLIAMS: OK. But my point to you, Greg, is that if you look at Unhinged, right? Which is the Omarosa book, you look at the Michael Wolf book, a referring theory, right? This seems to be from someone with more credibility, the same story, the same kind of behavior. This guy saying -- this is the anonymous guy saying we're doing what we can to preserve our Democratic institution while thwarting Mr. Trump's misguided impulses. And talks about -- this is not deep state, he said it's steady state.

GUTFELD: I know, that's.

WATTERS: He's taken it upon himself to say as an unelected person that the will of the American people doesn't matter because even though they elected President Trump to be the commander-in-chief, to be the chief executive, and to do the things that he campaigned on and follow through on his promises, I have elevated myself above that, above the commander-in-chief and above the American people in this democracy, and I'm the adult in the room and I'm going to do what I think is necessary for the country instead of what the commander-in-chief believes is best.

(CROSSTALK)

WATTERS: This is what that op-ed says. And, Juan, I don't know what's going on in this administration but that's kind of scary.

WILLIAMS: Well, not to me. But let me ask you a question.

WATTERS: Not to you because it helps you.

WILLIAMS: No. You think that -- look, I'm a American. I want the best for the country. Trump is my president.

(CROSSTALK)

WILLIAMS: When Trump behaves in this way, you don't have any fear.

WATTERS: Look, I think -- and listen, I'm not going to speak for the president but the president is obviously unorthodox. He shoots from the hip. And I believe a lot of people.

(CROSSTALK)

PAVLICH: I think the bigger question.

WATTERS: . are not used to that person as the president.

(CROSSTALK)

PAVLICH: I'm going to defer to Dana on this because she worked in the White House, but I think the larger question is whether people working for an administration and leaking out pieces of information and publishing anonymous op-eds is really good for the country. And serious questions.

(CROSSTALK)

PAVLICH: Well, there's serious questions about the New York Times publishing this because the society of professional journalists has a very long code. They say avoid lurid curiosity. There's all kinds of things you're supposed to avoid. Their explanation for publishing an anonymous op-ed is pretty thin when it comes to the justification for this. It used to be that you used anonymous sources very sparingly because you had to make sure that the information was reliable and that people understood where it was coming from to have the broader context. They're treating everybody who happens to be against Trump like a whistle-blower and it's damaging to people who actually want to come forward and have those protections to root out real corruption in the government because this op- ed wasn't published to expose some kind of new revelation about Trump's behavior. It was published because the New York Times agrees with it.

WILLIAMS: There was no such op-ed written.

PAVLICH: Like, why does this person need -- why does this person need protection? To protect their job.

(CROSSTALK)

WATTERS: The president did address it. We didn't catch all of it. Let's listen to what he had to say, and then Dana can react.

WILLIAMS: OK.

(BEGIN VIDEO CLIP)

TRUMP: Can you imagine this? We have somebody in what I call the failing New York Times that's been talking about -- he's part of the resistance within the Trump administration. This is what we have to deal with. And, you know, the dishonest media because you people deal with it as well as I do. But it's really a disgrace. I will say this.

(END VIDEO CLIP)

WATTERS: Yeah, I mean, it's about the Trump administration and the media, this story.

PERINO: I think that whoever wrote this is being incredibly self- indulgent. If you have the privilege to be a political appointee at a senior level in the White House, then you have a moral responsibility and a duty of conscience to resign your post if you disagree. You should not be lapping up the benefits of being a senior administration official, no doubt, while scouting for lucrative opportunities for when you leave your post.

GUTFELD: Who do you think it is?

PERINO: I don't know. At the same time, they are preening in the mirror and they have this ability to hide behind the credibility of the New York Times. I believe this is real. I do -- something is a little suspicious to me about this. It has been reported for the past three weeks that the White House has been grappling with how to deal with this Woodward book. What are they going to do with it? The White House apparently was surprised that this was coming out. I don't know who it is. Maybe we'll find out. Maybe we won't. But I will say that -- if you were this person, you really should resign tonight.

WILLIAMS: But let me ask a question of all of you. How is it that you don't hear and take seriously three separate books plus this op-ed? Instead, you blame the media.

(CROSSTALK)

PERINO: None of us are surprised that the president has said words that are unorthodox. It's not a surprise that existed over three books.

WILLIAMS: Erratic, impulsive.

(CROSSTALK)

GUTFELD: I will take a jerk. I always use the surgeon metaphor. I don't care if my surgeon is a jerk. If he gets that tumor out and saves my life, good surgeon.

PAVLICH: Constantly talking about how dangerous Donald Trump is, but then they promote stuff like this which causes serious problems inside the White House and serious problems for the country based on anonymous sourcing. And they are cowards because they're not willing to come out and say this publicly when they're serious consequences for what they're doing.

PERINO: I don't blame the New York Times for publishing it. I believe that had this been -- had Hillary Clinton won, and somebody in Hillary Clinton's administration come and said, you know, I'm so upset. Fox news, can you please run this op-ed for me? We would have done it too.

GUTFELD: I wouldn't have.

PAVLICH: If they were working in the White House, do you think that would have been a good idea.

PERINO: No. I don't care who it is. Like, either in administration, Republican or Democrat, if you have the privilege to work for the United States government -- you work for us. You don't work for the President of the United State. You work for the American people. So, if you can't stand it, if you're that upset, and if you really think you are saving the country, stop patting yourself on the back. Resign tonight.

WILLIAMS: So this is the way you feel about Jeff Sessions and Mike Pence for writing this editorial.

(CROSSTALK)

PAVLICH: I do have a serious problem with journalism outlets like the New York Times using anonymous sources always. I mean, that's been the standard for the past year and a half and not backing it up with justifications of this person needs whistle-blower protection because they're in an FBI investigation or they're in the Department of Justice and there's this huge corruption scandal. It's political. It's not about exposing corruption.

WILLIAMS: John Baron, do you know who he is?

PAVLICH: John Baron, yes.

(CROSSTALK)

WILLIAMS: All I'm saying, he was the anonymous source on so many Trump stories, turned out to be.

(CROSSTALK)

WATTERS: You're saying that the president is all of a sudden impulsive? Everybody knew Donald Trump was impulsive. He's been impulsive his whole life. He was impulsive in the primaries and in the general and the American people voted for impulsive Donald Trump. So to get in there and say, oh, this guy is so impulsive, we have to do something, that's what the American people wanted.

WILLIAMS: But now he is the president.

(CROSSTALK)

WILLIAMS: I'm stealing letters off his desk.

WATTERS: Obama could have been a little more impulsive. Instead, he sat back and did nothing while ISIS grew.

GUTFELD: You've got to read some of this stuff where they go, you know, that effective deregulation, historic tax reform, a more robust military, and then -- what they're complaining about is style, meaning that he changes his mind. Changing his mind is what we're supposed to be. Like, we love people who change their minds. That means he's not an ideologue. They want an ideologue.

WILLIAMS: You're exactly right.

PERINO: I don't know.

WATTERS: No, but they want someone that sticks to what they say and can be easily understood. And President Trump, to a lot of people, is very hard to understand. And they're trying to guide him in the right direction or as they see is as the right direction and that's not their job.

PERINO: Yeah. Actually -- like the thing is, like, this person is being successful because if you look at the actual actions of the administration, governing is quite a conservative president, a couple of things like on trade, you know, what are you doing? But give him a pass on that, like that's happening. So, you're actually being successful. Now, you possibly have taken your success and flushed it down the toilet.

WATTERS: And they're saying it's not Trump that's successful. The country has been successful despite Trump. It's all this guy is doing, and all of his friends in the, quote-unquote, resistance, they want credit for the success of this country and the administration, and they say all of the bad things are the president's fault.

GUTFELD: At the end of the calm, they bring in Senator John McCain, which I thought was just -- it was like.

PERINO: Did you see Omarosa tweet that she said I flagged for you guys to this would be, some page of her book, and she said -- she circles one of the things, it could even be a family member. That is a weird thing, like living in a weird reality TV show.

WILLIAMS: It is.

WATTERS: Sarah Huckabee Sanders, she must have been watching The Five because she has a very similar take to Dana Perino. This coward must resign.

WILLIAMS: Yeah.

PERINO: I think she could have come up with that on her own. She didn't need to watch The Five.

(CROSSTALK)

PERINO: I can't stand it when reporters write, like, oh, he's obviously watching my show and that's why he made the decision to enter into this war with ISIS.

(CROSSTALK)

WILLIAMS: No, no. But you're a wise person and she probably sees you.

PERINO: No, but I'm sure they came to this conclusion the moment they saw the headline.

WILLIAMS: But I must say to you, Jesse, how come nobody in the Bush administration, and the Obama administration did this?

WATTERS: They did not have the loyalists and the team that other administration have.

PERINO: Some people resigned. If you think about the first -- Paul O'Neill, the first treasury secretary for President Bush, at the end he's like -- I'm done with this.

WILLIAMS: Yes.

PERINO: So they've resigned. That was the honorable thing to do.

WILLIAMS: Right.

PAVLICH: The amazing thing is these people who write these op-eds they think that they're saving the country and the world from Donald Trump when their only damaging and creating more chaos instead of bringing the country together. This doesn't help anybody. It's not going to help them. It doesn't help the country.

WILLIAMS: What obvious to me is.

PAVLICH: It doesn't help the White House.

WILLIAMS: You guys aren't listening to this at all. It doesn't register.

GUTFELD: Everybody talks about their boss. It's what you do to relieve steam. A lot of this is from former workers. But a lot of this stuff -- especially from the Woodward stuff which sounded like he talk to people who heard stuff, not to the actual people. This is what people do when they talk about their boss. They don't say how wonderful he is. They only remember the stuff that pisses you off.

WILLIAMS: I think it's like you're normalizing this. And I just think.

GUTFELD: No. I just know -- as a boss, people say crazy crap about me.

WILLIAMS: But this is the President of the United States.

PAVLICH: And he has a number of high-level cabinet members, a number of senior level officials who aren't writing these op-eds who have a number of life experiences and experiencing government, leading Americans troops into war, who are also advising him who aren't writing these.

PERINO: Not only that, President Trump allows them to do their jobs. He's not a micromanager when it comes to the cabinets, right? So if these -- a lot of the media, I do think that they are missing big stories. You go to any cabinet agency, and you could find a ton of things that are happening. The New York Times did that with the EPA.

WATTERS: Yes, what has Ben Carson been up to? I haven't heard about Ben Carson. What has he been doing? What about Perry? Where's Perry been?

PAVLICH: Ryan Zinke has been doing a lot of things with the national park.

PERINO: Linda McMahon. Linda McMahon, she's --

WATTERS: Linda, come on. Now, do you think that this is -- and I know this is --

WILLIAMS: Betsy DeVos, never in the news these days. I don't know.

WATTERS: Do you think this is a really high-level senior administration official, or do you think this is a small ballplayer who's trying to make himself sound more important?

PERINO: Great question. So when we would figure out a way to talk to a reporter on background, so I would say deputy level and above, you could claim senior administration official.

I did love my friend Will Holly, who I think he's out there working in -- not in government anymore. I remember, he was a press assistant. And he was giving a report or some information about something that was happening later that day. And they said, "Well, can I quote you as a senior administration official?"

And he said, "No. But you can quote me as a junior administration official." So it's a wide -- it could be a lot of different things.

PAVLICH: The New York Times said it was a senior official in the Trump administration, not the White House, which could be so many people.

WATTERS: Zinke's deputy undersecretary for affairs.

PAVLICH: Yes, junior deputy.

PERINO: But not really you. Don't worry.

WATTERS: All right. Trump nemesis Senator Richard Blumenthal set to grill Supreme Court nominee Brett Kavanaugh, next.

(COMMERCIAL BREAK)

PERINO: Fox News alert, we are still in the Senate Judiciary Committee hearing for Brett Kavanaugh. This is the second day. We are expecting any moment now that Senator Richard Blumenthal -- I think that's him there -- he's going to be questioning Brett Kavanaugh.

This has been a marathon day. We will get to this in just a moment. Just one more thought from you, Jesse, about this hearing, how it's going, and how it looks for President Trump.

WATTERS: Well, the small amount that I saw today, every time I watched --

PERINO: I'm so glad I went to you --

GUTFELD: What you saw on the show today.

PERINO: I'm so glad that I went to you for this final thought.

WATTERS: I mean, it's incredibly boring. And it's boring because --

PAVLICH: I love it.

WATTERS: -- it's a good thing. And Kavanaugh -- listen --

PAVLICH: I don't think it's boring either.

WATTERS: It's wonky, but it's fun to watch. But there's not a lot of explosive moments where anybody lays a glove on the guy, because the guy's smooth. He can't be rattled. He says everything he's been prepped to say, and he's likable.

And Greg would agree: anybody with a good sense of humor is obviously highly intelligent.

GUTFELD: Yes, that is true.

WATTERS: And he's personable. He's got a great personal story. His mother, his daughters. I mean, look at his haircut. He's got a haircut, like, preppier than mine. I mean, the guy does not look like this evil man that's about to tear this country limb from limb.

GUTFELD: Look at the hair in "Psycho."

WILLIAMS: Jesse -- Jesse, you've got a great personal story. I love your family. Do you think I want you on the Supreme Court?

WATTERS: That's probably not true.

PAVLICH: One of his law students said that they really liked his hair in one of his reviews.

WILLIAMS: I mean, this is the thing. The big story here is are we politicizing the Supreme Court so that people no longer feel they can get a fair hearing?

GUTFELD: It started with Bork, you guys. It began with Bork, and it's been unraveling every time. And it's only been on one side. Republicans are generally very, very, very deferential.

PERINO: The other thing is, is that Dem -- Republicans seem to be able to count votes a little bit better.

All right. We're going to go to this hearing. Let's listen in to Brett Kavanaugh answer questions from Senator Blumenthal:

KAVANAUGH: -- to the confidence of the American people in the judiciary and to the rule of law in the United States. But one key facet of the independence of the judiciary, as I have studied the history of nominees, is not to make commitments on particular cases.

SEN. RICHARD BLUMENTHAL, D-CONN.: I'm not asking for a particular commitment, and I'm going to take your answer as a "no." It's really a "yes" or "no" question. You will not commit to recuse yourself. You will not commit to take yourself out of that decision, despite the unique circumstances of your nomination.

KAVANAUGH: Sir, I think, to be consistent with the principle of independence of the judiciary, I should not and may not make a commitment about how I would handle a particular case. And the decision to participate in a case is itself a decision in a particular case. And therefore, following the precedent set by all the nominees before me, I need to be careful. And again, you may disagree with this, but this is part of what I see as the independence of the judiciary.

BLUMENTHAL: Well, I do disagree, and I am troubled and disturbed by your refusal to say that you will take yourself out of that kind of case.

I want to move on to some examples of real-world impacts on real people. And taking that as a factor as you've articulated it in the decisions that you've made.

I want to talk about Jane Doe in Garza v. Hargan. As you know, she was a 17-year-old unaccompanied minor who came across this border, having escaped serious threatening, horrific physical violence in her family, in her homelands. She braved horrific threats of rape and sexual exploitation as she crossed the border. She was eight weeks pregnant.

Under Texas law, she received an order that entitled her to an abortion, and she also went through mandatory counseling, as required by Texas law. She was eligible for an abortion under that law.

The Trump administration blocked her. The Office of Refugee Resettlement forced her to go to a crisis pregnancy center, where she was subjected to medically unnecessary procedures. She was punished by her continued request to terminate her pregnancy, by being isolated from the rest of the residents. She was also forced to notify her parents, which Texas law did not require.

And the -- the pregnancy, which was eight weeks, was four weeks further when you participated on a panel that upheld the Trump administration in blocking her efforts to terminate her pregnancy.

The decision of that panel was overruled by a full court of the D.C. Circuit Court of Appeals. It reversed that panel, and the decision and opinion in that case commented, quote, "The flat barrier that the government has interposed to her knowing and informed decision to end the pregnancy defies controlling Supreme Court precedent." And it said further, "The government's insistence that it must not even stand back and permit abortion to go forward for someone in some form of custody is freakishly erratic."

In addition to being erratic, it also threatened her health, because she was unable to terminate her pregnancy for weeks that further increase the risk of the procedure -- one study said 38 percent every week. Her health was threatened. She was going through emotional turmoil.

And yet in your dissent, you would have further blocked and delayed that termination of pregnancy. All of what I've said is correct, as to the facts here, correct?

KAVANAUGH: No, Senator, I respectfully disagree in -- in various parts. My ruling, my position in the case would not have blocked --

BLUMENTHAL: It would have delayed it. And it would've set it perilously close to the 20-week limit under Texas law. Correct?

KAVANAUGH: No, we were still several weeks away. I've said several things that are important, I think.

BLUMENTHAL: I want to -- I want to go on, because I can read --

PERINO: All right. We've been watching Senator Blumenthal question Brett Kavanaugh. We've been watching this hearing all day. Guess what? Our producers are going to give all of us a treat. Don't go anywhere, because we're going to do our fun thing. "Wild Card Wednesday," it's up next.

(COMMERCIAL BREAK)

PERINO: All right. It's time for "Wild Card Wednesday." All right. I'm pulling topics that each of us has picked from inside of the hat. None of us knows which are the stories picked. Whatever, you know what I mean.

OK, here's the first one. New study shows how your brain might determine if you are a procrastinator or a go-getter. Oh, well, this will be obvious. The study finds physical differences in the brain between procrastinators and go-getters. People who are prone to procrastination have a larger amygdala, which deals with emotions and have a harder time turning emotional information into action.

WATTERS: I don't know what any of that means. But can't you be both? Can't you procrastinate to a certain point where you have to be a go- getter, because there's no time left.

PERINO: Oh, yes, like you just have to rush at the end.

WATTERS: Yes, that's it.

PERINO: What do you think, Katie?

PAVLICH: I think you can do both. Because if you're a go-getter, you have a lot on your plate. And therefore, you have to procrastinate on some things in order to get the other things done. I say I'm both.

PERINO: Are you -- I don't know. You're not a procrastinator, are you?

GUTFELD: Can you come back to me on that? I don't really have -- here's the deal. There is also research that claims that procrastination is actually a - - your body's natural way of telling you you are not ready to do that job.

That's why when, all of a sudden, you rush it and everything is good, but sometimes there's -- at times your body is saying, "You know what? The thought isn't there. The energy isn't there. Relax." So whenever you're procrastinating, just keep doing it.

PAVLICH: I'm going to keep justifying it with that.

PERINO: Well, sometimes if you procrastinate, Juan, it's partly because, like, you don't really want to have to deal with something.

WILLIAMS: Yes, I think you're in denial. You're just putting things off.

GUTFELD: That's a good thing. Maybe you should put it off.

PERINO: Right.

WATTERS: Is that why you don't prep for the show?

WILLIAMS: Because -- because I know I have you here to argue with me. I can win anything.

But the thing is -- the thing about this is don't you want to see a diagram of President Trump's brain?

WATTERS: Oh!

WILLIAMS: I bet he has a huge --

PERINO: He's not a procrastinator.

WILLIAMS: That's what I'm saying.

PERINO: He goes through his list of things he's accomplished.

WILLIAMS: Boom, boom, boom, boom.

PAVLICH: He doesn't wait on them.

WILLIAMS: What does he have, a huge medulla or something?

PERINO: No, he doesn't have one of those. Amygdala.

GUTFELD: By the way, it's not the size that matters.

PERINO: OK, duly noted.

All right. Companies rolling out monthly subscription service for cars. I love this idea.

The auto industry --

WATTERS: Is this your pitch?

PERINO: It was my pitch. Is this good?

WATTERS: Wait, what is this again?

PERINO: OK, so the auto industry is creating a subscription service so you can rent your next car month-to-month. So you don't have to have the same car all the time. You can, like, preplan. You know what I mean? So it's like the cost is anywhere from $380 to $1,200 a month.

WATTERS: So in the winter you get a Tahoe --

PERINO: Yes.

WATTERS: -- and the summer you get a convertible.

PERINO: Yes.

WATTERS: I like that idea.

PERINO: And then in the fall you can get a pick-up and haul around all your leaves.

WATTERS: That's what you think people do with leaves, right, Dana?

PERINO: Yes, I think so.

WATTERS: You're a homeowner.

GUTFELD: You know what? We're definitely moving away from owning stuff.

PERINO: Owning stuff.

GUTFELD: Wait. Can I tell you something? I had the global entry interview. You know, where you get the thing. Do you know that they reprimanded me for not having a driver's license?

PERINO: Yes.

GUTFELD: They thought I was, like, crazy.

PERINO: They thought -- they thought that you were, like, a stateless person.

GUTFELD: Yes, they go, "You don't have a driver's license?"

And I go, "I live in New York."

And the guy says, "That's crazy."

And I'm going, "No, it's not. A lot of people --" It was humiliating.

PERINO: A lot of younger people don't. You could just say, you know, you're young at heart, because Kate, I know that you have a car.

PAVLICH: I do.

PERINO: But a lot of younger people don't.

PAVLICH: I think it's cultural, too, though. Like, if you're from the West Coast, you kind of need a car to get around. Your car is your freedom. Right? Whereas in New York, you can take the subway, you can take the ferry. You can take a Zipcar, a Rent-a-Car. But out West, like, your Jeep, it's freedom.

PERINO: I know a guy who basically, he bought the end of the lease of a Corvette so we can have one month of his midlife crisis, Juan. In July, he wanted the Corvette.

WILLIAMS: That sounds cool to me. What's the problem with that?

But the thing about this is, I like knowing that I'm getting in my car, and I've got my chewing gum here, and I've got the change here, and I've got the station set.

PERINO: You have a month before that --

GUTFELD: And your liberal talking points?

WATTERS: NPR, right, Juan?

WILLIAMS: Yes. How'd you know, Jesse?

WATTERS: I knew it.

PERINO: OK, I'm excited about this one. A tiny St. Louis apartment with kitchen-bathroom combo finds a new tenant. This is kind of unbelievable. Check out these pictures. A St. Louis apartment's unique layout, it features a kitchen and a bathroom in the same place, separated only by a toilet.

WATTERS: I've lived in a place like this.

PAVLICH: That's in New York, I thought.

PERINO: Two hundred square foot studio. It costs $525 a month. I mean, come on.

WATTERS: In Idaho, 520 a month can give you a four-bedroom suite with a pool.

GUTFELD: You know who lived there? Eric Shawn.

WATTERS: Is that a short joke, because you really shouldn't talk.

GUTFELD: I'm just only a half an inch -- I'm only that much taller than him.

WATTERS: Is he the only one you're taller than?

PERINO: How could this pass inspection? This cannot be hygienic.

GUTFELD: It's disgusting.

WATTERS: Is that legal?

PERINO: It can't be.

GUTFELD: You can even have your toothbrush close next to your toilet, because when you flush, the fecal elements fly onto your toothbrush.

It's true. You don't have your toothbrush next to the toilet.

WILLIAMS: Oh, man.

GUTFELD: Now you're cooking next to the toilet?

WILLIAMS: I think that's illegal. I think you've got to have a hallway separating bathrooms and cooking.

PAVLICH: I don't think it matters.

WILLIAMS: Yes, it does.

PAVLICH: I don't think it's illegal.

WATTERS: It's convenient. You can take a bath and cook pasta.

PAVLICH: It might be unsanitary and not great for resale, but it's certainly not illegal.

GUTFELD: And you can sit.

WILLIAMS: You know what this reminds me of, because I've been in hotels in Japan that are like this. They're just tiny. I mean, there's nothing there.

And now they're starting to bring these to New York but because of the high cost of hotels.

WATTERS: The Japanese, right?

PERINO: One more story that we didn't get to, but it's similar. Airport security trays carry more germs than toilets, a study reveals. Is this yours?

GUTFELD: Yes, that was me.

PERINO: Well, it's a good thing to know, right? "One More Thing" is up next.

WATTERS: That's true?

GUTFELD: Yes. I love that thing.

(COMMERCIAL BREAK)

WATTERS: Time --

GUTFELD: Dana.

WATTERS: -- for "One More Thing" -- Dana.

PERINO: It's time for this!

(BEGIN VIDEO CLIP)

GRAPHIC: Dana's Corny Jokes

(END VIDEO CLIP)

PERINO: "Dana's Corny Jokes." Here we go.

All right, I did a legal theme, because we're in the Supreme Court world. So I have four jokes. Are you ready?

No. 1, why did the lawyer have to back up to drink? Why did the lawyer have to back up to drink?

GUTFELD: Oh, God.

PERINO: Because he just passed the bar.

WATTERS: Man, that's good.

PERINO: What does a plaintiff wear to his wedding?

WATTERS: Briefs!

PAVLICH: A robe.

PERINO: Oh, that's good.

WATTERS: It is good.

PERINO: But it's a lawsuit.

PAVLICH: The briefs is good. That's better.

PERINO: We'll tell the Internet that you changed that.

What do you call a short court trial? A short court trial? A brief case.

GUTFELD: Oh.

PAVLICH: OK.

WILLIAMS: Oh, briefcase.

PERINO: Last one, why did the judge fall in the courtroom? Why did the judge fall in the courtroom? He slipped on appeal!

GUTFELD: Oh.

PAVLICH: Appeal!

WATTERS: Those were some good ones.

WILLIAMS: That's a good one.

WATTERS: Those were really good.

All right. On to a better one. National Cheese Pizza Day is today. Now look at this piece of pizza that's enticing Greg.

GUTFELD: I hate cheese.

WATTERS: Now listen to this. Pizza accounts for more than 10 percent of all food service sales.

PAVLICH: Wow.

WATTERS: Each person in America eats -- how many slices of pizza each year do you think the average American eats?

GUTFELD: Sixteen million.

WATTERS: Forty-six slices.

PAVLICH: That's a lot.

WATTERS: A year. Every American, each one eats --

PAVLICH: How big are the slices, though?

WATTERS: -- per year. Five billion pizzas are sold worldwide.

PAVLICH: Wow.

WATTERS: And 350 slices of pizza are eaten every second in the U.S.

PERINO: You better keep up the average.

WATTERS: So here's to National Pizza Day.

PAVLICH: Don't get your lawsuit dirty.

WILLIAMS: Lawsuit.

WATTERS: Juan Williams.

WILLIAMS: You know, I had pizza for lunch Saturday and crabs for dinner. And I said if I have to die, that's the perfect day to go.

GUTFELD: Everyone is going, yes.

WILLIAMS: Anyway, talk about a thrill ride. Some tourists in Crimea were in a gold cart, going through a safari park when this happened.

Yes, that sleeping lion that you see there awakens and pops into the golf cart, nuzzling the visitors.

PAVLICH: No way.

WILLIAMS: Now, don't forget, we're talking about a predator. In fact, just eight weeks earlier, the same park, a different lion bit through a woman's arm. So this video has gone viral, because no one got hurt this time. And the visitors, they all -- they went home in one piece with an incredible story to tell.

GUTFELD: That is terrible.

PERINO: That's awful.

WATTERS: Your time. Go.

GUTFELD: You go to Fox News -- is it FOXNewsPodcast.com?

PERINO: Is it FOXNews.com/podcast?

GUTFELD: I don't know, one of those things. I have an interview, FOXNewsPodcast.com with Debra Soh. She's a sex researcher. We talk about the strangest sexual fetish known to personkind. If that's not a tease, I don't know what is. It's going to blow your mind.

PAVLICH: All right.

WILLIAMS: Is that all?

GUTFELD: Yes.

PAVLICH: Speaking of safer words, Merriam-Webster dictionary has added added over 840 words to their lineup, which is great.

PERINO: That's so many.

GUTFELD: Yes.

PERINO: Right?

PAVLICH: Leading language experts say that it's important to remember that new words are added to the dictionary only when they have already been used by many people and then gradually spread to the rest of us. So some of the new entries include my favorite, one of my favorite words that I use often, is "hangry," which is irritable and angry because of hunger.

PERINO: I get that.

PAVLICH: It's a combination of angry and hangry -- hungry.

GUTFELD: That's me all day.

PAVLICH: Bingeable is a millennial word, because it's about watching multiple episodes or parts you can watch. So Netflix --

PERINO: Yes.

PAVLICH: You know, bingeable.

And zoodles, which are zucchini noodles --

GUTFELD: I love zucchini.

PERINO: The Jolly Green Giant sells those now.

PAVLICH: -- that resembles a string of narrow ribbon or pasta. It's very good.

WATTERS: Well, I just caught Juan Williams downloading Greg's sex podcast. Really, Juan? Just wait till the show's over next time.

Set your DVRS. Never miss an episode of "The Five." "Special Report" is up next.

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