election. hello, everyone, i'm dana perino and this is "the daily briefing." ♪ president trump says he plans to announce his pick for the supreme court by the end of this week after funeral services for justice ginsburg. it comes as democrats and now two republican senators push for the president to hold off until after the election. trey gowdy standing by for analysis. chad pergram live on capitol hill but let's begin with chief white house correspondent john roberts live on the north lawn. >> dano, a lot of the talk in washington and across the country is that the president has the time to get this done by november 3rd. modern-day speed record for confirmation belongs to justice john paul stevens back in 1975 when you were still kicking slats out of your crib, he was confirmed 19 days from nomination to the final vote in the senate. by that measure, president trump has all kinds of time.

john roberts took 24 days, a little bit of an asterisk because he had previously been nominated for the position of associate justice and president trump change that to a nomination for chief justice but that wasn't until september the 5th that he was confirmed. sandra day o'connor, 33 days from nomination to confirmation, ruth bader ginsburg, 42 days. if president trump sanchez nominee up this weekend it will take 38 days before the election to get it done. what the president is looking for in a nominee, here's what he said this morning. >> we are looking for somebody who is brilliant, really understands the law and abides by the constitution and a good person, we are looking for a good person who is really been somebody that has very, very high moral values. >> who fits that bill? the top contenders are amy coney barrett from the seven circuit of appeals on the 11th circuit

of appeals, democrats are bowing to do whatever it takes to block the nomination from going through up to and including launching another round of impeachment proceedings against the president. the president reacting to that this morning. >> i heard yesterday, if i do it, if i do it they're going to impeach me so they are impeaching me for doing what constitutionally i have to do. i think we will win the entire election, win back the house. >> president trump is leading the white house in, and you can bet he is going to have a lot to say. >> dana: it was already interesting and now it's even more interesting. thank you, john. congressional correspondent chad pergram live on capitol hill. >> warp speed is the war here on capitol hill as they try to move

this yet unknown nominee. the senate will meet here in about less than an hour, mitch mcconnell in the flesh sends ruth bader ginsburg passed away on friday night, republicans are determined to try to move this fast. >> 29 times in an election year for the president's, there's been a vacancy on the supreme court and when one party controls both the white house and the senate, they went forward with that nomination. they were usually approved. >> the most recent supreme court justice confirmed in an election year, was in 1940. so doing this is rare and this will boil down to the math, susan collins and lisa murkowski say the nomination should wait. there are currently 53 republican senators, that takes the number down to 51. at a minimum it's right on the

edge and that's why they are starting to apply pressure on senators like mitt romney, also cory gardner, republican of colorado and a competitive reelection bid this year and chuck grassley, republican of ohio who shepherded in brett kavanaugh 's nomination. he said they would not move that nomination but chuck grassley is not a judiciary committee chairman right now, it's lindsey graham. who faces a competitive reelection bid in south carolina. back to you. >> dana: amazing report, thank you. let's bring in its fox news contributor trey gowdy, so much to talk about. i thought we should give you a chance to talk about the legacy that ruth bader ginsburg leaves behind. >> you know, i addressed it on a podcast coming out tomorrow, whether or not you agree with

her judicial philosophy are not, i have been struck by the number of women who viewed her as a generational icon. someone who transcends generations. if you look at her background but also, in fairness, sandra day o'connor who was the first woman on the supreme court, difficulty getting jobs, they weren't treated fairly, didn't have equal access to the court and yet they rose to the highest level of their profession. she was an unabashed liberal and only three republicans voted against her confirmation, three. even though she wound up being the most progressive member of the court, only three republicans opposed her when she was moved from the d.c. court of appeals to the u.s. supreme court. >> dana: a lot of that bipartisanship went out the window after 1987, the nomination that everybody younger than us can google it and see what happened what you learn a lot more about that. so now we get to this question

of what is going to happen and what are the politics of it? take a listen to joe biden and what he recommended to the republican senator. >> i impute appealed to those cf senate republicans, a handful of them really will decide what happens. please, follow your conscience. don't vote to confirm anyone nominated under the circumstances of president trump and senator mcconnell have created, don't go there. uphold your constitutional duty, your conscience. let the people speak. >> dana: what is your take on that? >> that is a head scratching analysis. instead of listening to joe biden for legal advice i'm going to go back to ruth bader ginsburg. in 2016 she said "there is no constitutional impediment at all to the senate taking up a supreme court nomination in an election year." the president has a responsibility to be the

president through his or her last day. there's not some decreasing sliding scale of authority based on how close you are to the end of a term. you can wage war on your last day, the obama administration assured us, you can actually investigate folks up until the very end. the president is, has the power to nominate someone. she said so in 2016, keep in mind when it relates to joe biden, john roberts, john roberts is now seen as the most moderate member of the conservative wing. of those conservative justices on the supreme court he's the most moderate yet joe biden, barack obama, john kerry, hillary clinton, harry reid, chuck schumer, dianne feinstein all voted against him. >> dana: i remember it well because i was a spokesperson for john roberts and that nomination and justice alito as well.

republicans who are being accused of hypocrisy, we are going to talk to howard kurtz and a little bit about the media pointing out that you said one thing in 2016, part of me feels like the republicans are saying, we are not going to be beholden to that or also if you look at exactly what they said, they are saying that they are consistent. does it matter? >> i think in a perfect world in the world i hope you and i live in one day it does matter. one of the steps of conservatism is consistency. i understand the distinction between having the senate and having the white house and i think that's what they are using as that line of distinction now was that president obama was in a different party than who held control over the senate. i think the better argument is to say that everything has changed. what you did to brett kavanaugh, the fact that you can even bring yourself to vote for john roberts, every one of those names i mentioned, the last four

democrat presidential nominees voted against the most moderate member of the so-called conservative lock. >> dana: not only that but if you go back to, when you are in congress and harry reid decided to use the filibuster for those three circuit nominees, that was really, if you will recall, mitch mcconnell at the time set i'm warning you, don't do it. they did it anyway another consequences for it. i will give you the last word. >> you are exactly right, there are consequences for the decisions we made in life. harry reid changed the rules, republicans went ahead and change them all the way. if you don't like with the senate does you can vote them out in november but right now they have the power, the president has the responsibility to fill the vacancy. >> dana: trey gowdy, always love having you. the media rushing to call at republicans over comments about the supreme court but they seem to forget what democrat said just a few years ago. howie kurtz will weigh in.

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>> dana: joe biden in battleground wisconsin today, peter doocy is there live with more. hey, peter. >> dana, good afternoon. thinking about a 45 minute trip to where we are standing here and the landscape has changed a lot as we were with him on friday in minnesota and had spoken to him on covid-19. now today going to be his first mark in a swing state. president trump announced he's going to announce a supreme court justice on or saturday. they're going to be coordinating with democrats in the house and the senate about the fight

ahead, with specific focus on the potential danger the affordable care act faces if president trump places a justice on the court for life. so far, he's been trying to reach down through the tv. >> president trum i'm not speaka president trump who will do whatever he wants, i'm not speaking to mitch mcconnell. i'm speaking to the republicans out there, senate republicans who know deep down what is right for the country and consistent with the constitution. >> we are getting a better idea about which state, electoral collegewise, is going to be a repeat to wisconsin. we just learned on wednesday he will make his first trip of the

general to north carolina. dana? >> dana: indeed, thank you. the media wasting no time for ripping into republicans are saying they will vote on president trump's supreme court nominee after blocking president obama's pick. >> i think it would be 100% inappropriate for president trump to nominate someone. >> can you spell hypocrisy? its blatant hypocrisy. >> the idea that mitch mcconnell could engage in the greatest act of hypocrisy in american political history. >> president trump hopes this will upend rac's losing, but is there any evidence it will? >> dana: can i have you listen to one more thing? this is joe biden on the vacancy and what he said over the years. >> once the political season is underway, action on supreme court nomination must be put off until after the election. >> if the president consult and

cooperate in the senate than his nominees may enjoy my support. to jan this nomination to the senate is an exercise in raw political power. >> dana: there's plenty of material for the media had a look through, you said this and this this time around, how do you see it playing? >> well, the press has essentially declared war on mitch mcconnell and lindsey graham for changing their positions from what they took in 2016 and there are legitimate questions of hypocrisy, there are videos of senator graham saying, i'm on tape, use my words against me and journalist arguing just that but this is what politicians do, they come up with these fine minded principals and rhetorical justifications for what is a raw exercise in power, what's striking to me, dana is that there's very little media attention to joe biden because as obama's vp in 2016 said we must have a vote now and today,

of course he's saying we shouldn't have a vote now, we should let the next president, hopefully me, pick the next nominee. >> dana: with mcconnell, i feel like if you look at what he said back in 2016, i think democrats might be frustrated today because they didn't listen to the fine print in which mcconnell was saying there is a democrat in the white house, a republican senate and that's how he made a distinction. that's how democrats will say that's a distinction but he is able to say, to those words. how do you think going forward the media might treat the nominee? president trump is already said it will be a woman so we will not have the same type of effect that they brought up against brett kavanaugh. >> well i think this is going to be not just a woman but a very conservative woman, there will be a lot of ideological

arguments in the media again says nominee. coupled with the process arguments that we shouldn't be having this vote now. mitch mcconnell doesn't really care what the elite media is saying, he does what he wants when he has the votes which right now he appears to do. what strikes me as the complete lack of media outrage when you have some liberal pundits and democrats saying, if trump manages to put this off and we get power next year, we will pass the court. that didn't work out too well for fdr. there will be a lot of media jumping up. i do have to say, you don't have joe biden, he set over the summer he was against it so he is resisting at least for now. >> dana: we are going to talk about that very joe kennedy quote coming up in the next block. thank you so much. the fight over the supreme court, shaking up watching tennis democrats worn nothing is off the table when it comes to stopping

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>> dana: the fight over the supreme court adding to an already turbulent election and democrats are warning mitch mcconnell not to rush a vote and saying all options are on the table if he does. >> to mitch mcconnell, we need to tell him that he is playing with fire. we need to make sure that this vacancy is protected, that our election continues and that the american people have their say. >> dana: with me now, fox news contributor and "washington times" opinion editor charlie hurt and i have to ask, are you trying to compete with harold in the unique backdrop look?

is there a bear a bear behind you? >> i don't think harold has a bear behind him and until he does i don't believe anything he says. >> we will keep that in mind. there was a tweet from representative joe kennedy, just lost his primary against ed markey of massachusetts. he said if he holds a vote in 2020, we pack the court in 2021, is that simple. do you think that's a smart take for democrats to have right now? >> i'd probably approach it a little differently but first, thanks for having me on. look, the democrats are playing flag football here and republicans are playing tackle. what we have to do is democrats is remind voters what this is really about. if you're concerned that when we geget a covid vaccine that you'e going to be able to get the vaccine for free, that's what we

to this is about. if you're concerned about health insurance that's what this is about. were republicans have tried to legislate the affordable care act out of existence, they failed. if women want to be protected in workplace and how decisions about their own bodies, this is what this is about and if you're a small business owner worried about big insurance and banking and you want t to a system that will protect you, this is what this is about. democrats, what can happen is we challenge republicans. who are up for reelection in the senate, with the stakes are and what this race is about, let's get in this game and play tackle like president trump and senate majority leader mcconnell are. >> dana: republicans have long been -- or conservatives, also, long been concerned about judicial appointment. and they understand that, they

vote based on some of it. there would be a vacancy, there will be time for the president to get a nominee voted in, whether or not before election but before january, what is the thought about how that might have changed the political dynamic. >> in terms of politics, obviously everyone's first thought was talks about justice ginsburg's family and friends. but in terms of politics and i think harold makes a very important point there, democrats have always sort of struggled to get their voters to be as interested and motivated by issues of the federal court as conservatives are and the reason for that is conservatives care passionately about fidelity to the constitution. and so, so you can look through the past 25, 30 years and think about plenty of cases where

republicans have won my collections fighting over the federal judiciary. i don't think you can find a single democrat who has won and election on the fight over the federal judiciary. where i disagree with you, harold is about the issue of who is playing tackle and was playing flag football. democrats have been playing tackle on judicial nominations going back 50 years, going back to, there are countless examples whether it's clarence thomas, miguel estrada who was the first supreme court nominee in 2001 by george w. bush who was nominated for the court and never got voted on, was filibustered in the senate even though democrats had a minority, were a minority in the senate. i blocked a vote on him even though he had enough to win a seat on the supreme court. >> dana: i was actually for the circuit court, remember? there was a memo that surfaced on the democratic side. trying not to be put on the

circuit court because it would be an attractive nominee for republicans going forward. our democrats catching up to republicans and caring about the court? >> i think democrats understand what this really means going forward, things of the country has made advancements on. we should stop whining about hypocrisy, of course there is hypocrisy on each side and we shouldn't kid ourselves, democrats and the majority will be doing exactly the same thing and her republicans would be probably trying to find out how to make a stronger case as we democrats should be making about what's at stake in this election. >> dana: charlie, behind you, there might be a bear. thank you both. next, shannon bream gives us a closer look at president trump's contenders to replace justice ginsburg and follow us on instagram, our story brings to

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>> dana: bottom of the hour, time for some top headlines. a woman suspected of sending an envelope to the white house was arrested near the south border of canada, officials say the letter originated in canada and now the suspect is expected to face federal charges. the cdc reversing course and removing new guidance that the coronavirus is mainly spread through airborne transmission. they officials say the guidance was posted in error. tropical storm laura expected to bring more than a foot of rain in some areas. and those are your headlines. >> these are the smartest people, the smartest young

people, you like to go young because they are there for a long time. >> dana: president trump this morning on his top contenders to replace ruth bader ginsburg. let's bring in fox news at night anchor at shannon bream for more on the potential pick, you've been working nonstop all weekend long. >> great to be with you, dana. let's talk to three women we think of the top of the list. the president has said he's going to pick a female, all of them are on the federal bench now so they have been through senate confirmation recently which helps with betting them, getting their files up and running if these are the top contenders. we will start with judge a amy coney barrett. she is a federal judge, 48 years old, mother of seven, went to notre dame law school on a full scholarship, has been working there in the years since. she also clerked for the late justice antonin scalia. she was prepped about her

catholic faith and concerned that it might impede her ability to be an impartial judge. you might remember senator dianne feinstein's comment, "the dogma lives loudly and you." she said it would never be appropriate for a judge to impose her personal convictions including her faith on due issues of law. now, judge barbara lagoa from florida, she's only been on the federal bench for less than a year at this point. she was a first female latina to be appointed to state supreme court, compelling personal story, her parents said they gave up their dreams because they wanted their kids to have their dreams, she is a columbia law grad, really colors the way that she sees the u.s., constitution, rule of law and finally judge allison jones

rushing, the youngest, the president seemed very excited about the possibility of giving the democrats are 38-year-old nominee, very well respected, she was a battle in the senate and made it through our own vo vote. she's also clerked at the supreme court for justin's clarence thomas. a lot of her work with the group, the alliance defending freedom came as part of a debate in the senate, the left because i a hate group, she said "i never saw anybody advocate for hate." there are a couple men whose names have been thrown around, we don't think they are still under current consideration, very highly respected as are the women on the list as well. >> dana: shannon bream, how lucky are we that we have you on our team to keep us informed? thank you so much, see you

tonight. a host of hot button cases hang in the balance. former assistant attorney general, maybe try to focus if we could, there are some big issues in front of the court. >> exactly a week after election day, the trump administration is trying to strike down law, protection for people with pre-existing conditions so that really hangs in the balance of your ca recall it was upheld, wh the late justice ginsburg as part of the majority. that's really the top of the list of cases where this

nomination can make a big difference. further on down the road, the right for women to make their own reproductive choices, control of their own bodies is at stake. several of the nominees, particularly judge a barrier barrett are staunchly antichoice. and of course justice ginsburg was a strong supporter of reproductive rights and i think that is really at risk and operates me when i imagine you might see a little bit differently especially if there was another conservative on the court, dealing with things like religious and economic liberti liberties. >> yes, dana. what's happening in the court as there are two cassettes of cases to think about, this term, the affordable care act, a case calling for greater expansion of religious liberty and the executive privilege claims president trump in the impeachment controversy about long-term supposing president trump does fill the seat which will give six justice

majority conservatives, what you likely see is more cases expanding the rights to religious freedom, more second amendment cases, and challenges to affirmative action, a well-known case working its way up against harvard university for discriminating against asians and finally you'll hear cases about economic liberties that have been squashed by these coronavirus lockdowns all over the country. to be >> dana: you also have said that you think that in environmental issues will be one table as well. >> that's right. the power of administrative agency to issue rulings to interpret the law and apply it is often brought up in the context of clean air and clean water and we've seen these judges on the conservative side be very hostile to have that of administrative power that lets us be assured that we are drinking clean water. >> dana: although --

>> other potential nominees, judge lagoa has been very favorable in her ruling. >> dana: some of those cases on apa, some of those are not having zero decisions. >> it's easier to understand some of these if you are not a scholar. what's going on is the conservatives are raising doubts about how much power congress gets, it's not about clean air or clean water but whether it should be congress or these agencies making these fundamental choices about poli policy. >> dana: great people to have on our show. thank you, john, and thank you neil, we will be in touch for sure. next, showdown over the supreme court coming under grace for the white house gets even tighter. what kind of broke at the court play come november? to severe psoriasis,

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>> good evening, everyone, i'm bill hemmer, awaiting all the main players next hour. on the floor of the senate we will hear from mitch mcconnell and chuck schumer, so stand by. on covid they are having issues in london, congress puts out a scathing report aimed at the chinese communist party. we kick off a brand-new week. ♪ >> dana: president trump about to hit the campaign trail, the president holding a rally in ohio in just a couple hours, lots of people already lined up. kristin fishekristin fisher is e in dayton. >> the focus for this first off is fighting for the american worker, a message that helped president trump win this state back in 2016 by a solid eight

points. enough to significantly call into question ohio's status as one of the biggest battlegrounds in the country. but since then things have changed a little bit especially in the suburbs and now this state is uncomfortably close for the trump campaign. they will tell you they feel very good about where things stand here in ohio. for this first stop at an airport just outside of dayton, ohio, ohio's republican governor mike dewine is expected to be here after a false positive coronavirus test after attending the president's last event in ohio in august. an outdoor rally at another airport near toledo. the governor not expected to be there for that. last week his administration gave the trump campaign the green light to hold tonight's rally saying political gatherings are exempt from the states order to limit large gatherings about the governor did ask for the president, joe biden and their supporters

abide by the state's mass mandate and wear a mask. joe biden really has not been on the ground in this state in quite some time. instead his campaign has invested heavily in tv ads for the trump campaign has had heavy presence on the ground. dana, president trump is going to be back here next week, the first presidential debate. ohio will certainly be the center of the political universe. >> dana: i will be there, too, which i am excited about. thank you so much. the fight to replace justice ginsburg adding another layer for the race for the white house as the fate of the election could very well end up in the hands of the supreme court. let's bring in any retired election lawyer, cochair of the 2013 presidential election commission that is obviously so important. it's wonderful to have you here

as a guest, obviously you've been revered for many years. i wanted to first ask you something about not 2020 but 2000, if you could compare the two, i've seen what happened in 20002 this year, you see it a little bit differently. >> i think they won't be very much alike at all. 2000 is about one state that started a recount three days after election day and even under that timetable sort of got squeezed by the meeting of the electoral college. where it stands to be the hallmark of 2020 is the onslaught of absentee ballots. and the relaxed counting deadline in some states. it may be a week, two weeks, three weeks before the results are known. that's the starting flag for when you can actually have recounts in contests and how that falls into the electoral

college deadlines and the inauguration date of januar of january 20th will i think stand to be much more in play in 2020. >> dana: you are looking at this in terms of three buckets. the first bucket you talked about is that there are already over 245 lawsuits in 45 states dealing with election questions already. how do you see those play out and will the supreme court weigh in on those and all? >> those are very much challenges to his state law and the upholding of state law in some cases against administrative action. and those are likely cases to be resolved on the state level. to the extent the supreme court has said to signal it all is that it does not like to overrule the judgment of elected officials in the last weeks or run up to an election so they don't like judges judging what

elected officials have done on policy matters. >> dana: and then maybe a word about the electoral college because we've talked about the electoral college a lot, i grew up in wyoming so i always thought it was a great idea to have the electoral college, it's certainly fallen out of favor with some people who think majority rule would be better but what is the litigation situation about the electoral college. and do we have enough information to make decisions? >> i think the way the electoral college will be brought into play is more than a timing deadlines involved. the rules are set for the selections of the electoral college is not going anywhere. with the electoral college is a series of statutory deadlines. and procedures to be taken. those items in the electoral act have never really been stressed-tested under litigation especially in a hotly contested

election and that also plugs into the january 20th date the constitution when president trump and vice president pence, what do you do if there is not an answer in the electoral college by then? >> dana: yeah, what do you do? i'm kidding, i won't make you answer that. a pleasure to have you, thank you. the justice department coming down hard on three democratic-run cities for not controlling the violence. ♪ attention veterans with va loans.

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30 grams of protein and 1 gram of sugar. potus. immune health. >> the justice department is labeling new york city, portland and seattle anarchists jurisdictions. they fail to fund police departments and that could mean the withdrawal of federal funds to those cities.

laura ingle has more. >> it's really fulfilling a promise made by president trump. that if city leaders in new york, seattle and portland, did not control the lawlessness that's taking place in their cities the trump administration would move to pull federal funding. today all three cities led by democrats have been labeled anarchists jurisdictions by the u.s. attorney general william barr. the white house director will send guidance on what funds can be cut in the next two weeks. reading in part, we cannot allow federal tax dollars to be wasted when the citizenry hangs in the balance. we hope they will reverse course -- >> the department of justice released listed criteria for how it shows the cities including new york noting a dramatic right

and shootings since looting and protests began around may 28 as well as $1 billion being cut from the budget to support the defund the police movement. all three mayors from the cities have said that this move is unconstitutional and the mayor of new york, deblasio says, he'll be taking this up in court. >> thank you. it was another violent weekend in cities across the u.s. including in chicago where a 16-year-old was among those shot. here's more from chicago. >> dana, that 16-year-old was one of 45 people shot in chicago this weekend including six who died from their injuries. several other cities were hit hard as well, though. in rochester, new york, police are searching for several suspects who are involved in one of the worst shootings in the city's history. two people were killed and 14 injured when a fight broke out at a party early saturday morning. police say three or four people pulled out handguns and started shooting firing dozens of shots as a crowd of more than a hundred people scattered.

all of the victims were in their late teens to early 20s. >> it's a tragedy. high school graduates, their entire life in front of them, and because a few people made terrible decisions, it's terrible, i feel horrible for the families. >> this weekend louisville, kentucky, hit a new record for homicides after three men were shot and killed outside a restaurant friday night. on saturday morning the jefferson mall was on lockdown after a shooting that injured one person. the city's previous record of 117 homicides was set in 2016 and louisville is expected to go well past that with more than three months left in the year. >> thank you so much. we appreciate it. >> happy monday to everybody, thanks for joining us. it's going to be an incredibly busy election season and don't forget that on the five tonight coming up in a couple of hours we have a surprise. i'm not going to reveal the surprise here. i'll just tell you, you do not

want to miss the five tonight. be there on time at five. we'll be there to give you some big news. all right. bill hemmer, now i see you. you know what the surprise is. >> bill: i have an idea but i'll still be watching. nice to see you in person. welcome back. you got it. >> bill: good monday, everybody, i hope your weekend was terrific and here we go with another story. wow! a potential momentum shifting hour in the next 60 minutes with a showdown looming over justice ruth bader ginsberg's seat on the u.s. supreme court. we're waiting to hear from several major players as both sides dig in for a fight. senate majority leader mitch mcconnell was speaking of a vacancy for the first time from the u.s. senate and we'll hear from chuck schumer. we'll see if he takes questions from rorrs