Fox 23 News | 9-21-20 David McLain

There's been plenty of discussion about how that seat is going to be filled. Joining us now to discuss Fox 23 analyst David McClain, the chairman of the Oklahoma Republican Party and former Democratic congressional candidate attorney Tim Gilpin. Thanks so much for being with us. In 2016, Antonin Scalia's passing created an opening on the high court months ahead of the election. Republicans said the decision to appoint a new justice should be left in the hands of the voters. Gentlemen, what say you this time around? How is this situation similar to or different than what we saw then? David, let's start with you. Well, I think we have to look at, look back at the historical evidence of what's taking place over the history of our country. And 29 times there has been a vacancy in a presidential election year. And now presidents have made nominations all 29 times. And that's what's that's exactly what presidents do is they make nominations if there's a vacancy. And the Senate has been the same party, the president, 19 of those times, and the SCOTUS nominee was up. And out of those 19 times, 17 were confirmed. The parties were different, a total of 10 nominations. And in those instances, only two were confirmed. I chalk that up as checks and balances. You have to have the president and the Senate to forward these nominees. And a big reason Americans elected President Trump in 16 was to ensure that we have constitutionalist Supreme Court justices not legislating from the bench like we've seen over the last 30 some odd years in some instances. Tim, what do you have to say to that? Well, first, let's pay tribute to Ruth Bader Ginsburg, a history making Supreme Court justice who is going to be remembered for decades to come among many legal experts, lawyers and just people in the United States as one of the great justices of the Supreme Court. As to our current political situation, the simple fact is Mitch McConnell made the McConnell rule in 2016 and said 10 months out from a presidential election, holy cow, stop the process. Merrick Garland cannot even have a hearing, let alone have a vote to be confirmed as President Obama's nominee to fill Anthony Scalia's seat. So what's the difference with today? Well, today, we're only 45 or so days out from the presidential election. And Mitch McConnell, and it appears to be a majority of Republicans in the US Senate have turned on their head. And my concern is with this heavy handed hypocritical attitude, they're going to really bring about more poor politics and more partisanship to our national and state leaders and to what we have to look ahead. They're also putting the Senate majority at great, grave danger. I mean, there was enough impetus on the Democratic side before. But Democratic voters typically, historically, aren't as motivated about voting for politicians to choose judges, where the folks on the right are very motivated. Heavy handed hypocritical tactics on the Republican side, Mitch McConnell is likely to motivate significantly progressive Democratic voters who previously had looked at Joe Biden as a moderate Democrat and weren't as excited. So I think in the long run, they're setting poor standards and poor presidents for the US Senate. And how we pick Supreme Court justices in the short run, they're definitely putting their Senate majority up for grabs. Well, I'd like to push back on that, Tim, because as I quoted you, heavy handed hypocritical attitude. Yeah, that's what it is. While we're enforcing constitutional law, that is not heavy handed or hypocritical. Because if the shoe was on the other foot, the Democrats would surely be pushing this through because they have the constitutional authority to do that. Now, with that said, we didn't change the Senate rules. Harry Reid changed the Senate rules to 50 plus 1. Now, 50 plus 1 is the rule. We didn't change that rule. Yes. In fact, your Nancy Pelosi, Nancy Pelosi is calling for her war chest today. Things that are just very interesting to see. She's the one who's really politicized this. Your party has absolutely politicized this. Simple words like heavy handed. The Constitution is not heavy handed, it's called the rule of law, Tim. And if Democrat mayors and Democrat governors would get a hold of it, we could see that ruling by emotion is not what this country wants. We want a country that is being ruled by the rule of law, Tim, not by Tim Gilpin's emotion. Well, forget Tim Gilpin's emotion. Let's talk about Mitch McConnell in 2016. He literally changed the Senate rules. He made the McConnell rule. He took away the possibility to filibuster a Supreme Court nomination. That was the Republicans in the United States Senate. They changed the rules. Then when President Obama had an opportunity to nominate a judge 10 or so months after an election, he changed the rules again and said no. Now, let's look back at past Republican presidents. Forget the emotion, forget the politics of today. Abraham Lincoln in 1864 was up for re-election and had an opportunity to replace a Supreme Court justice who unexpectedly died. Now, think about it. Lincoln in 1864, a civil war going on, surely he could have done that. And he said no. He was going to wait until after the election. So clearly, the Republicans of today are not the party of Lincoln. But let's just look back. Nancy Pelosi's in the House of Representatives. What we're dealing with is the United States Senate. We're dealing with Mitch McConnell's change of the rules, heavy-handed tactics. My concern beyond today's politics between you and I, let's say, our different parties, is what this does to the United States Senate and what it does to our nation's politics. Because when you run roughshod over your own rules that you've made within the last few years, then you set up a reaction. Every action, there's a reaction. If we want to continue to have politics that are out of control, extremely partisan, the Republicans, if Mitch McConnell does this, he's going to inherit the wind here. So, Tim, in all of the other 29 vacancies that presidents made nominations in, you disagree with that. Is that what you're saying? So the Senate, in those cases, in those 29 nominations, 19 times, we had the presidency and the Senate, either or party. And out of those 17, or out of those 19 nominees, 17 of those were confirmed. Now, if you swap the party from, if you swap the party, say you had, in Barack Obama's case back in 16, he had the executive branch but did not have the Senate. So we see a check and balance there. There were 10 nominations made there, and only two of those were confirmed. So we do have historical evidence that there is not heavy handedness when we're purposing to follow the Constitution of the United States and exercise ourselves in constitutional authority. Why do the Democrats always have problems with Republicans exercising themselves in constitutional authority, but when they're exercising themselves, when they have majorities in their constitutional authority, it's okay? It's a double standard in all of its ways, and you know it as well as I do. Let me answer your question. Why are what now? Why aren't Republicans following their own rules that they made in just the last few years? Hang on, I'll let you talk. Why aren't they following the McConnell rule? Why aren't they saying, hey, let's let the American people decide? Let's let the American people decide like Mitch McConnell- The American people did decide when they elected President Trump in 2016. I'll let you talk, my friend. Let me finish. Why aren't they letting Lindsey Graham stand by his work, where he has said on several public occasions that if there is a Supreme Court nomination in the presidential year, while the primaries are started, that he will wait until after the election. Chair of the Senate Judiciary Committee, Lindsey Graham. His seat is now up for grabs. And I might add, in a 50-50 race in South Carolina, Republicans ought to take note that heavy-handed tactics are only going to inspire Democrats to come out and vote, who ordinarily, on the progressive end of my party, weren't so excited about Joe Biden, a moderate Democrat, before. So, okay, if you don't want to follow your own rules, if you want to continuously change the rules to match your political aspirations for the moment, then get ready, because you're putting not only the Senate majority up for grabs, more Democrats in the US House being elected, and a Democrat in the White House. Now, someday I'd like to come back, and let's talk after the election, because if that happens, and the Democrats decide to go ahead and exercise their constitutional power, as you just talked about, and change the configuration of the Supreme Court, or begin- Which hasn't been done since 1869, by the way. 1869 was the last time the configuration of the Supreme Court was changed. So if that's the precedent you guys want to break, then, I mean, go ahead. Hey, gentlemen, we're going to- If they decide to follow your rules- Gentlemen, we're going to move on to this topic right here. President Trump has this process on the fast track. Saying a nominee, potentially a female nominee, could be named later this week. There have also been some voices on the Republican side who have said that they might want to wait on a possible vote until after the election. What is your expectation on this? Tim, we'll start with you. The big concern is that President Trump and the Republicans in the Senate are going to quickly, quickly push through this ultra-conservative Supreme Court nominee that's going to have a bad taste in everybody's mouth. But what's really going to happen is there are United States senators where the seats are up for grabs. They went from a precarious race to an uphill race. Now, think about Mr. Daines in Montana, where the Democratic governor is pulling about even with him in the polls. Roy Gardner of Colorado. Roy Gardner of Colorado is in trouble. Tom Tillis of North Carolina. He is behind in the polls. Martha McSally in Arizona. Some of those polls have her five, six, seven points behind the Democrat. Kelly Loeffler of Georgia. Joni Ernst of Iowa. And of course, Susan Collins of Maine. So if we're going to do this in a fast, fast pace that's never been done before, then guess what? We're going to create bad politics and we're going to invigorate Democrats to come out and vote, particularly these vulnerable Senate races. Well, Tim, I want to say this that when Ruth Ginsburg was confirmed, it took 42 days. So I suspect there is a process that has to take place. I don't see where the Senate is putting a rush on anything but other than following constitutional standards that are laid out before us. So Ruth Bader Ginsburg can be confirmed in 42 days. Why can't our nominee be confirmed in that or less time as long as all the constitutional requirements are met? Now, let's talk about energizing bases. You seem to be very concerned, Tim, about us losing the Senate because of our direction. Now, let me just say this. Having this nominee come up during this time is going to absolutely go beyond energizing our base to push people out for McSally in Arizona and the others that you mentioned. So I suspect we will be taking the executive branch back again. And I suspect we'll be taking the Senate back or adding more seats to the Senate as well as taking back Congress. So the hypotheticals that you push forward about Joe Biden being a moderate, about Joe Biden not giving up all of his authority to the progressive wing of your party, the AOCs, the Elon Omars, and the Nancy Pelosi's of the world. I mean, come on. Joe Biden is already double talking. If you just fact check Joe Biden, he was just fact checked on one of his speeches where it was confirmed that he had lied a minimum of at least 10 times. Now he's America first. I want you to think about progressive Joe Biden being an American first president. This is just unconscionable the way that you guys swing this thing emotionally. Aren't we up to like 20,000 something lives by Mr. Trump documented? But more to the point, back to- Documented by who? Back to the point- Who documents? CNN document this? Did the media document? So you have to juggle that, right? Because you know Jake Tapper's a fraud. What's the difference? Ruth Bader Ginsburg was confirmed within approximately 42, 45 days. 42 days. Not in an election year and not with any controversy. Now- But with the executive branch in office with the ruling party with her. On and off now and far afield, by the way. But what's different now is we're 45 days or so to an election. And we're following, I thought, the McConnell rule. Which is no- I think we're following the Harry Reid rule. 50 plus 1. Hey gentlemen- You guys are the ones who changed that. It has been a spirited discussion. And you know where I'm hanging my hat on this deal. 50 plus 1. Cut you off, we run out of time. Elections have consequences, Tim. We have to remember. Gentlemen, thank you so much for being on. David and Tim. We appreciate it, guys. We do. We're out of time, guys. We appreciate you coming on with us. Tim Gilpin, David McLean. Thanks so much for being with us. We look forward to more spirited discussions in the coming weeks.