kayleigh mcenany and emily compagno. fox nation host tomi lahren and in the center seat, fox news contributor guy benson. russia is moving tanks, all artillery, jets and warships in the position for a possible invasion into the ukraine. united states is sending military aid to the ukraine, $200 million most recently, antitank missiles. and that u.s. troops are on heightened alert, 8,500 at last count. present biden says this kind of invasion could change the world, calling it an imminent threat. but you might be surprised to learn what our president had time to do yesterday among the imminent threat. and that should have a s on the end. with the border, lots of stuff going on. he left the white house to pick up some ice cream. critics say the optics are awful. guy benson, let's start with you. >> guy: on the ice cream? is the president loves his ice cream, we know this. with all the threats that you just mention percolating right now and perhaps coming to a head, with the white house insisting that his schedule is absolutely packed from dawn until dusk basically, you can ask a question about optics. i saw the republican party put out video juxtaposing jen psaki, saying how busy the president was with him eating his ice cream at jenny's in washington, d.c. i think the bigger question here of course is, what is the biden administration prepared to do if russia invades ukraine? what happened imminently or after the olympics as a lot of the experts seem to be suggesting it would've, and his nato, are the u.s. western allies actually on the same page? because the president suggested last week it is a press conference that was not the case. that's precisely the sort of weakness that i think putin can sort of smell and sense and exploit. >> harris: lets it with the president didn't do. kayleigh mcenany, let's move on from the ice cream. let's get to what really matters. i mean he can do all the photo ops he wants but the one we want to see her him with some answers on how to keep eastern europe from blowing up. look, as we look down the pike, putin has a couple of things he knows. he's listed his demands and he actually has no concession. he has simply said that we may not threaten the united states. >> kayleigh: at that's right, harris. that political playbook laid it out nicely, that state of affairs with russia, they used one word to describe the kind of clues that we are seeing come from vladimir putin and that word it was ominous. when you have these huge military exercises that russia is planning including short range ballistic missiles, or any of this buildup of troops, when you have all of these signs, dimitri petrov, the spokesperson coming out and saying tensions are rising at a time when we know there was a video of russian paratroopers coming to the ukrainian border, this is an dominance scenario. then they juxtapose that with what we are hearing from the white house. the white house briefed reporters on the planet, and the words that political uses are this. judge for yourself with this plan, described by a senior administration official, seems fully baked. identifying natural gas resources and assessing the supply of natural gas, that's not a plan to deceive vladimir putin who's mounting more than 100,000 troops on the border of the ukraine. you have an ominous sign coming from russia, a half-baked plan coming from the united states and the president of the united states, a commander in chief is that this would be the biggest invasion since world war ii at a time in which he goes to buy a mug of his vice president and yes, eats ice cream. the optics are not good in the optics do matter. >> harris: yesterday i had on admiral john kirby who was a spokesperson for the pentagon and i thought it was interesting that he says that they've been doing things to try to keep this from happening. but among them and things they are doing most recently is spending money. now with our troops, men and women, our treasure, our blood, our people perched in case somebody hits a nato ally that surrounds the ukraine, it seems like the stakes are so much higher than we have been led to believe. >> kayleigh: that's awfully right. and it's unsurprising because this is the same pattern and the same playbook that we seen from this present in the pastor he has assured us that the afghan exit would be concluded gracefully and successfully and instead, we lost the lives of our 13 service members. i want to point out the optics on the global scale. it's not just americans that are looking at our commander and chief. >> harris: all right, we have a breaking news right now. sorry emily, i know they told you in your ear that we were cutting him off. we will be get back to the topics in a moment. supreme court justice stephen breyer is retiring as this is according to nbc news first reporting this. and of course we know that this gives president joe biden a crucial opportunity to replace the liberal justice. now emily, i'm coming right back to you and your legal acumen. i'll play this out for me. he leaves, and what do you see happening immediately? >> emily: the president joe biden will nominate another justice. just a few months ago he nominated a federal appeals court justice, one including us supreme court judge and that was u.s. district judge michelle childs and that was to the u.s. court of appeals for the d.c. circuit. now i think was important to note as well, this would have an impact obviously on the scale of the court in general. this is considered frankly a win for the democratic party and for the progressive liberals, but that's sad let's dig into the progressives that he does nominate and looking forward to that being a contentious process as we've seen in the past. >> harris: kayleigh? >> kayleigh: this would not change the balance of the court but it could deliver the white house a much needed political win. this is a big news right before they mid terms. i imagine this would have went into justice breyer's calculus, any supreme court justice thinks about who they want to appoint a replacement so i think he knows the balance of the senate could change. right now it's 50/50 in the senate so the best chance of getting a judge that would walk in the footsteps of justice breyer would be to have president biden nominate that justice, get that person through before the midterms. look. i was in the white house when we nominated a supreme court justice just before the presidential election and that was justice amy coney barrett, that's about as clean as a nomination as you could have and that's about it as easy of a political victory you could have. but these could be thorny issues. we all remember justice kavanaugh, no one knew the kind of way democrats could play political football with his past and with his childhood so it's not a given that you would get someone through. they had to have a good nominee, someone like amy coney barrett, with a clean record that you have to confirm just before a crucial election. >> harris: i want to get into some of what we have seen it, and that is the idea that it is too close to the election to get something like this through for the president. we seen that among republicans and we seen it among democrats, who do this as well. it's january and you can't miss the timing of how far out that is from november. it's not march, it's not may, so on and so forth. what do you make of how much time president biden would have to put something through, and as kayleigh just pointed out, you'd pretty much have to pick somebody perfect at this point because you don't have a start time. >> guy: don't forget that biden promised on the campaign trail that no matter who retired or died on the court, if he had the opportunity to replace someone, he would pick a black woman. that narrows the field of potential names are being discussed right now in the white house. i would imagine if there were a lot of conference calls and a zoom calls between the president's team and the senate majority leader to make sure that they don't screw this up, right now they have the votes in the senate and i imagine the democrats are probably going to stick together on this one and they will replace justice breyer likely with an american woman. i think they will have the time to do it, they will have barely have the votes to do it and i think it's true, kayleigh's point is right, this would be a victory for the biden administration and for the president and the base would probably be happy about that. there's also the other side of that. this would fire up the republican base and remind people that, in this case the etiological balance on the court would not shift. it would be one progressive justice to another, but these are very high stakes battles and there is a lot at stake in control of the senate, for example. so i'm not sure on balance if it would benefit one party or the other but i think that in all likelihood it we will see a black woman nominated and a black woman confirmed to the u.s. supreme court if indeed these reports about justice fryer are true and in my mind it, it would make sense if they were true. >> harris: we are projecting recent past on to present. and we don't know what will happen next but based on the fact that we have seen what you are describing, in terms of this, it continues to look like the u.s. supreme court is in the middle politically. do you see it that way? >> of course. the u.s. supreme court and the decisions that are being written as we speak, i mean the court is going to rule on guns, on abortion, on racial preferences in college admissions. at some of the most divisive polarizing hot button issues in our society are often coming down to the court and i think that's unfortunate. i think the court has overreached and i think having some of these decisions sent back to the people's representatives would be the right course of action but because of these huge issues, they often end up with lawyers, people like us to medially jump to the forefront when news like this breaks. >> harris: so i think what guy was saying previously is also very interesting, and i think kayleigh and emily said it, too. this doesn't change the makeup of the core. it does give president biden a win politically but it doesn't change some of the decisions potentially that might have a conservative majority on the court. >> tomi: it is what he does best, placate to the radical base of his party that he believes is the majority. i believe he is incorrect and i believe they are the minority but i'm wondering the kind of justice that he would nominate. now again i'm sure it would be, as guy said, a black woman. we saw how well that worked out with kamala harris but here's to hoping he had a better choice in mind for this position. but i would just hope that he could choose somebody that is not only qualified but also somebody that's not so far on the radical left. i think the american people are making it pretty clear that the woke is that's going on right now in the democratic party is not for them but i think we need to take a step back and see how we are all projecting politics on the court. maybe we shouldn't do that so much, especially the media. last week we had npr riding a story about the so-called controversy and the buckle between the masking of neil gorsuch with sonia sotomayor or and they came out and said that wasn't true. so why are people trying to have so much fighting and so much divided? we should have a moment of unity. i know the court will be a contentious issue but we need to do a better job of making up less political where we can. >> harris: emily, in terms of what the court could be looking at, what do we know about maybe what justice breyer and his judicial history have looked like, and what tomi is suggesting, maybe you find someone farther to the left? democrats -- if the ideology of democrats don't make up the majority on the court anyway, would it matter so much if there were somebody who were even further left than say sonia sotomayor or? >> tomi: that is interesting and it dovetails into what guy was saying earlier, there are rumors floating around already, the short-list potentially includes one of the judges that i mentioned earlier, and also, that was judge khatami brown jackson and also california supreme court justice leandra kruger. but yes, they are progressive, one appointed by obama and to your point, ideologically, yes, they are further to the left than breyer. however breyer's jurisprudence was incredibly progressive frankly, he was in no way a swing but vote by any means and i think filling that position would definitely be a square with a square, if you chose someone in that ideological event. we call as well that as we let up to this moment there was a respectful distance frankly that many in the democratic party, including and especially the president, were giving justice breyer. however we know that we are calling people to retire and fear and concern that they would miss that vote, however this president maintained a distance and he committed to, he said, filling the federal court vacancies in the lower systems. he has filled over 70 positions among them, now justice jackson of the d.c. circuit court. so i think what was interesting is this president played at safety by letting justice breyer make this call on his own and sort of set this a deep bench at the lower circuit and appellate level so that now, he can draw. yes he has voiced commitment to african american judges in the past and it looks like that short-list does include kruger and jackson as i mentioned. the hearings back in may, some thought that was a test case for the potential scotus nomination process for justice jackson and so, that might have frankly laid the framework for her to be nominated coming up. >> harris: if that's really interesting. and you know what else? does anyone at that level ever make a decision on their own? do you think he woke up this morning and said, i'm leaving the core? everyone sees potentially what could happen. jen psaki, white house press secretary tweeted this. it has always been the decision of any supreme court justice if and when they decide to retire and how they want to announce it, and that remains the case today. we have no additional details or information to share from the white house. now. i put that they are because on the heels of the comments that i had just made, she already sees these questions coming. did the president talk to him? >> kayleigh: and that's a great point. that statement that you just read indicates yes, he chose to retire on his own but was ever a conversation between breyer and biden? there's been a lot of reporting that there was a conversation between justice kennedy who retired in president trump at the time and at that kennedy said, i would like for justice cavanaugh to be considered as my replacement. and as it turned out, that was what transpired. so was there any such similar discussions? it would not be improper but it would be interesting to know that if that changed, biden's eval to nominate a black female, he said consider this person and it could have change the calculus. i will say i don't think you can overstate how important this moment is for the white house. you think about everything happening, everything going wrong, biden's domestic agenda, build back better being dead in the water, ukraine, afghanistan, the southern border, economy and crime. this is his chance to have a reset, to have a political victory. to change the conversation ahead of the midterms. i think democrats would prefer to have a conversation on roe v. wade over a conversation on the current issues, top of mind of voters, the economy, political unity. according to our pop fox news poll, i'm a pro-life republican and want to 0v wade overturned but in the mind effect democrats i would rather switch to that kind of conversation. they want to use this moment to do that in the biden administration, desperate for a political win and this could be that for them. >> harris: wow. that's quite a look at this. i mean, kayleigh, you've been in the white house and dealing with communications and sometimes changing the subject. it's something that we know that every white house will do. i don't know if this turns a wheel or even the spoke of a wheel away from what's happening in eastern europe if russia now invades ukraine and those 8500 u.s. troops have to be in a nato country to get ready. i don't know if this changes anything, our attention away at all. americans can multitask. tomi? >> tomi: i think that kayleigh is right, the biden administration would love to have a win, but it's a virtual signal because it would not change much. but it would give them an opportunity to talk about something else. i don't think the american people are that easily distracted. it would be one thing if we didn't have empty shelves and gas prices and foreign policy debacles, but we have all those things. it would be great to say we put an african american on the supreme court, that's a great headline for a couple of weeks. but when you can't a afford to buy groceries and gas prices are going to the roof, i think you will still vote for those american first or hopefully republicans that will make sure that those things can be fixed. a great win for them optically but in practice, i don't think the american people are going to be so sold. >> harris: i want to bring in jonathan turley, george washington contributor. jonathan, we're just learning of the news and it's breaking now, supreme court justice stephen breyer set to retire and we would assume that the president would put up a liberal nominee for all of this. tell us about this day and how it plays the way that you see it. >> these days it's often an institution by simple mathematics. this is a justice who has left his mark on that court and he was appointed by bill clinton and replaced harry blackmun. he has been a quite reliable liberal void on the court, it's been one of those voices on the decision on some of the most important issues of our time, from abortion to the use of international law. he is considered to be quite brilliant legal mind, he taught at harvard law school and he is an extremely -- extremely erudite and how he approaches the law. obviously these moments have to be translated through a political left. we have it divided congress, a 50/50 division in the senate. the timing here is rather conspicuous. there have been groups on the left who have been pressuring breyer to resign. there were even billboards that were driven around washington, telling him to resign. >> harris: why? >> because the liberals want to put a younger person on the court. that type of thing isn't done, it wasn't necessary but is also incredibly disrespectful so this is not the way that this man should have retired with this sort of mob baying at his heels simply because they want a younger person. now what happens from here will get other interest. we know that president biden has already pledged that he will only consider an african american woman for the court. and when he made that pledge, i wrote a column at the time saying that's a curious pledge to make out a court that wouldn't allow that kind of approach for college admission. but when it comes to admission on the court, you're saying you won't consider anyone who is male or not african american. so that will come up again very quickly and at the irony is, the supreme court accepted two cases from the use of race preferences in college admissions. so this is basically going to come up if the president decides he has to attend to fulfill a pledge that the court would never allow, if he was actually admitting someone to a college. >> harris: jonathan turley, admitting discrimination." we'll see now is -- engage in a court if he would say no otherwise, and that's an important thing. race is at the heart of just about everything we see from the left right now, it's so much in the nomenclature of politics that are most divisive in america right now, not bringing us together with this further divide. so this person has to be a woman, she has to be black and she has to be younger. anyone thinking what i'm thinking? they don't know what to do with kamala harris in the white house right now. i can't be the only person seeing this. and i've read it, and that you have, too, kayleigh, because we chatted about it. the vice president runs again it at someone else. i prefer to drink my tea rather than read the tea leaves, but when jonathan turley puts how the information of a young, black and female, it's hard not to see, at least she makes the list. >> kayleigh: i'm glad you said that, harris, because i was playing in my mind from the moment that we heard about this retirement. politically speaking, if you are not -- covered here on this show, people are not quite happy with kamala harris, both in the west wing and outside the west wing and democratic off operatives. it's a possibility, and it's a position she will readily consider or accept given the comments and the challenges of the vice presidency, given the frustration she has incurred, i think it's a theory that could be credible. >> harris: or at the very least it's an opportunity for her to stand up and on the job that she has come up that we may find out she actually relishes and would love to be able to do. i like to give people the benefit of the doubt of doing something great because it's never too late to do something great. we don't know. reporting that we .2 is just about the dissension and drama behind-the-scenes and her low poll numbers and the recent lavishing of love from the president, these things trying to lift her up. would she even be in the running? we don't know. but which she then turned and embraced the job she has? it might be interesting to see as well. i want to get to david spunt who's at the u.s. supreme court. you were learning new details such as, may be by summer or the end of the current term? >> yes, at the end of the current term appears that's when justice breyer will officially step down, they could be the end of june or early july, it depends on when the high court finishes its docket. but we just found out this news in the last 15 minutes or so about the 83-year-old justice to retire, and already, u.s. senators are sending out press releases into inboxes. i'm reading one from patty murray, the democratic senator from washington state, calling on president biden to move forward to appointing the a black woman to the high court. some of the other names as kaylee atomic kayleigh mentioned, we've not heard any mention of vice president, irs or any official appointment but some other names mentions, judge cuts cut tonja brown jackson, also lee andre kruger. >> harris: they have put out notices from lawmakers, are those letters on the record or are these just being talked about? >> they are just press releases at this point, we haven't seen any official letter is or what not, but patty murray is the first one that i've seen from washington state. i didn't take long to get out there. >> harris: can you give us just a line from it? >> absolutely. she says, there is no shortage of exceptional nominees which serve at the judgment qualifications and ethical standards each supreme court justice showed in body and black women in america should be able to look at the highest court in the land and finally see themselves represented. >> harris: while, we have a vice president, that's a high in the land type of job, too. that's really interesting. emily, what are your thoughts? >> emily: it is interesting, i think, as we have discussed to call for a specific box to be checked. patty murray did say with excellent qualifications and experience, of course, but it's not withstanding. but i think it calls to mind in this moment sort of an interesting conversation and focus on an immutable characteristic that tends to make the focus super myopic. and all of a sudden everyone is calling for this instead of honoring justice breyer's legacy, or it may be something more unifying for her, like can't wait to see the nominations. then, they then celebrate. great, this person represents our this judge represent such an amazing glass ceiling that has been shattered but frankly i think it's been premature. and that justice is blind concept and it's a little out of touch at this moment. or a little out of place i should say. just to touch on david's comments, i keep bringing up judge jackson who is seen as a front runner, but she clerked for justice breyer so she has a lineage, but direct recipient and she grew from working with them and her experience included a great deal of white-collar defense, she was of counsel and focused in part and she has a deep and wide breadth in the criminal jurisprudence and i think in the national conversation and in the way that crime reform in such has been developing, her voice might be one that carries heavy weight during these times and it that the president might be interested in appointing to the court one with a holistic experience and viewpoint that might serve well on the moderating front, frankly. she worked at what we called morrison and forrester there, then perhaps some nominee. >> harris: it's jonathan turley, as the story continues to unfold with the u.s. supreme court justice retiring today, stephen breyer, what else do you think that we should be watching for us americans are looking forward? we do have a lot on the plate of justices right now. do they hold a certain amount of power until they leave or, what is there? >> they hold the most important power which is the hold of nine votes. this docket is filled with potentially momentous decisions. we have a court that has decided to reenter the fray on issues such as abortion, and now to racial preference and the college admission. i wrote a column yesterday saying how it seems to me the conservative majority has decided to go into these areas and i think justice breyer is likely to be on the other side of that. we really should celebrate but when justices retire we immediately looked down the road. because the president pledged to only consider african american women, that will occupy a lot of the attention. obviously, the president can do that. the president can nominate people for any reason he wants, but that is going to focus on a smaller pool of potential nominees and will raise this question, as to whether that was necessary. he didn't have to say he would refuse other races, he would simply do what other presidents do and would consider in terms of what the court is called sort of diversity element to admissions. in this case, rather than college, it's to the court. but putting that aside, justice breyer will really have a legacy of someone who thought quite profoundly about the law. many people tend to be of these justices as legal activists because they vote in groups. i had this discussion when i was testifying in favor of judge of courses each nomination. one senator said how can you justify five conservatives voting together and they forget that there were justices voting together on the other side. but neither side were active and buyer has talked about that. they really do try to get it right. and breyer really did try to get it right. but they have a clear judicial philosophy and he was consistent about it. and he was very coherent and how he wrote about it. that's the reason he will have a lasting legacy because there is depth to his opinion and i think that will be valued for years to come. >> harris: i want to bring in now bret baier, inc. of special reports from washington, d.c., today and david spunt was on moments ago and i asked him to read from one of the lawmakers reactions, just in terms of what they would like to see coming down the pike. and with all the great merits and everything else, can we see a black female. president biden, what are you hearing? >> harris, good afternoon. i think you all have hit a lot of the points directly, and pledge not once and not twice but multiple times on debate stages and elsewhere that, if he was president and if a vacancy on the supreme court came open, he would nominate a black woman to be on the court. he said it's time to have that representation to the court. i think jonathan turley makes an excellent point about those questions, especially since the cases that are coming before the supreme court on racial issues, especially when it comes to admissions and colleges and how that all factors in. but that's what he said and i think you will see some shows like patty murray tweeting out that they are hoping that that's what he does. this doesn't change the political environment and whenever there's a retirement or an opening in the supreme court, it changes the dynamic. to guide benson's point earlier, it's not just one site that changes but it's both sides because suddenly the issues that become -- that surround a nomination process bring up different things that we are not talking about day-to-day that the supreme court has to deal with in cases that come before it. how it falls out and who they nominate is a big decision for this president. >> harris: we have seen something that we are all in the middle of and that is mask mandates. there are some things that will come onto the spectrum of the u.s. supreme court that nobody saw coming, and who is on it certainly matters. but i'm curious because there has been talk in the past of court packing on both sides of the political aisle. where does that put us win that, on campaign trail, presidential candidates make promises about that court? and look, they all do. >> when it comes to court packing technically the definition is to add justices of the supreme court and the president has this commission and i think he just did that as a hat tip to the progressive side. that's an important point to say to the progressives, i hear you and this is a young person that will fill the seat. ridley set on your panel earlier, this does not change the dynamic ideologically of the supreme court but it does at the table for if there is another opening in this administration, or, more importantly, as you get into 2024, how important this issue becomes in this presidential race. >> harris: i don't know if you were able to hear it earlier, and we were couching this as delicately as we could. i said i'd rather drink the tea then read the tea leaves. and the idea that the president is having to proffer up with his words in recent days, she hasn't had that real dynamic moment, and she's had multiple staff leave, leave, to the point where it was taking of headlines, so i an end so forth. i know people say just on fox but that's not true if you read to. but having said all that, she is black. she's a woman and she is younger than justice breyer and when you see the president already having filled a job, hers, with certain categories checked off, i wonder what is talked about in washington, d.c., a place where it's supposed to only be about your merits, where the american people check their own boxes and make their own decisions and make their own vote? >> i have this tough to get to to have, or is replace a vice president in the supreme court, but i think that jurisprudence when it comes to liberal cases, that's probably where this has gone ahead in a nomination perspective. there is a list of possibilities that has already been floated out there by candidate biden and by the early stages of this administration. i think it's interesting to talk about, although there are multiple factors here as far as the reelection prospects. >> harris: one of the things i said is it's a beautiful moment and let the process play out and do my job. >> hey brett, this is emily. one question, there is a date that weighs on my mind, and that date is september 17, 2020. i was in washington at the time and that was the date we learned the passing of justice ginsburg. and you were right to say that when a moment like this happens whether it's the passing of a justice or in this case the retirement of justice, the whole dynamic changes in washington. it shifted from the campaign trail two months before the election to the confirmation of amy coney barrett. i'm wondering though if there was that pressure campaign on ginsberg to retire. she chose not to, but a more conservative justice and in this case not let that play out again. the president was kind of waiting on the mind here with justice breyer. >> that's a really interesting question. i think he talked about that in a couple of interviews on "fox news sunday" in which he said he heard all of the uproar but he was going to finish out this term. which essentially we should point out is what he's doing. in announcing and telling people that he's going to retire after this. the political dynamic does change but especially for those seats that obviously shift to the court that rbg moment and the nomination that followed was a earth-shattering far as the implications for the supreme court and for the country. so after the brett kavanaugh hearings and these hearings with amy coney barrett, i think you saw a lot of people focus on that. i think you will see focus on this, but ideologically not a shift. >> emily: and so during justice breyer's jurisprudence on the court, he was in the majority for the majority of the time. so in a way he actually left more of the moderate stamp there then ideologically is super progressive it when you look at especially these recent terms. what i found interesting was his agreement rate with certain other justices so for example in this last term, he agreed with for example justice amy coney barrett 34% of time and with brett kavanaugh 73% of the time. i bring this up to say and task you about optics, which we continually discuss here and particularly that of joe biden. now we know that the president came out and sort of adamantly maintained that, he was the president that would unify the country. however we have seen him align himself with frankly incredibly progressive and at times of radical policies. do you see his nomination filling that same slice of the pie that justice breyer has an truth occupied a little bit more moderate than i think was sort of known for her or you see joe biden marking this as a line in the sand and potentially nominating someone that really, really could pull the shift to the left ultimately as you point out, notwithstanding the numbers game that has yet to come? >> i think it's more towards the left, at least judging by what we are hearing so far. i think that they have the numbers in the senate, because when it comes to nominees, all you need is 50 plus one. traditionally, sinema and manchin, who have been a thorn in the side when it comes to build back better and filibuster rules have voted for democratic nominees across the board, even ones that are pretty liberal. so if you look at the voting records they are they pretty much have the numbers and this is the time if they are going to try to push the court in any way, it would be to nominate somebody a little bit more left who fits that bill. >> harris: bret, i'm happy went over the numbers here. i'm writing something, chad pergram is supporting us from the hill, we get some emails from him and one thing he just sent me is in the spring of 2017, then senate majority leader mitch mcconnell then detonated the nuclear option to lower the bar to confirm a supreme court justice. mcconnell and senate republicans dropped a bar to end the filibuster from 16 yeas to a simple majority, otherwise the nomination of neil gorsuch would have faced a filibuster. quick thoughts on where we are and all that? >> that whole process started with senator harry reid, late senator reed, from nevada. and that's what held the door to that nuclear option. and that could change the dynamic. that's the fight that would try to change it for voting rights and it did not pass because as i mentioned, and the number is 50 plus one. so they have the numbers, but in this case they expect them to go pretty bold but as far as ideologically, i think you would see someone a little bit more to the left. >> harris: bret baier, thank you so much. let's light in with shannon bream. jonathan turley i was mentioning because he was here this afternoon with breaking news were outnumbered. people who lead sometimes get lost in the fray and we are so focused on the people who potentially could be on the short-list coming in immediately, we kind of glossed over the person who is leaving. what can you tell us about stephen breyer? the u.s. supreme court justice, a man, and how he has fit into this court. and what footprints he leaves behind. >> i can tell you personally he's a very congenial guy and he does this thing every year at least pre-covid aware we all go to this dive chinese restaurant that he loves and sit around, and he loves to tell stories. he's one of those folks who likes to spin a yarn and he's very entertaining. he takes the law and his job very seriously, but he likes to laugh and to tell a joke and to tell these funny stories. as a person, he's a very warm human being and he has all kinds of deep interest in art and architecture and has written books on those kinds of things on the law as well. he is a multidimensional guy just like any human being, but a very friendly one. i always say when i'm in court and watching him, he starts with these hypotheticals where he sets up the scenarios and he wants the attorneys to come with him, where he starts a very long story and wants you to give him an answer. i tell him, he's laying a trap here but, he's a brilliant guy who, through storytelling and a whimsical look at life, it's just a different kind of justice and as a person, that's a kind of guy he is. you are talking about this political side of it and trying to look at the fact of trying to get someone confirmed, things have changed so much like bret said. justice breyer was confirmed 87-9. we don't have those kinds of votes anymore. it's just a totally different situation and to court for many people has become a very partisan situation, so whoever his predecessor is or a successor is it's not going to get anywhere near that kind of vote, not in this current environment. >> harris: and that's true of so many things. we just aren't where we were politically where people would go to a delicious dive restaurant and hang out whether it was with reporters or, and that sounds like fun. what he's done as a justice, and what we know that he could potentially could do before june. >> they have so many cases that are pending right now, the affirmative action case they agreed to take up involving universities, we think that will probably get kicked onto the fall calendar so we won't be dealing with that one but we know right now they are writing and trading opinions back and forth and drafts back and forth on the dobby case, a landmark case on abortion that could impact roe vs. wade. the boston bomber, is death penalty, there are cases that are still percolating which makes sense, he will stay through the end of the term and through june and early july when they typically wrap up. then of course that's what's the summer of confirmation battle and that of course feeds into the midterms which you guys have probably discussed a bit, how there are a lot of people who felt the pressure on justice breyer and, that's not something he responds to. he's 83 and he this is is the time for him to go and is comfortable with the legacy he leaves behind. we got to hold onto the senate, this battle proves exactly how difficult it is when we have these openings but i think it's wise, to, and he wants some one who is a centrist and believes the rule of law and that's the kind of person he can vote for, you have to be thinking about his vote when you nominate someone. and we have some ideas of who is probably on the short-list for the president. >> kayleigh: shannon, kayleigh here. it seems simplistic to say it's 50/50 for the vice president with a tie-breaking vote, and i say that because he is politically unpopular and it joe manchin and kyrsten sinema have shown that they have their own voice. when you look at the president, things can go wrong in confirmation hearings. president trump had a 51-49 majority and yet it was not a big deal, can you walk us through some of those things that can go wrong in a supreme court confirmation process even when you have the majority in the senate? >> i think about the years shortly before i was actually covering the court here at myers, what is a good example of this. someone who is nominated by the president and as the fighting began, there were lots of critics and people who didn't feel like she has the right qualifications and she wasn't the right person for the job and eventually that nomination is withdrawn and you move on. just putting a name on there it doesn't guarantee that person will make it. there's a very critical vetting process and you have to know that it's someone who can withstand, being in the court is equipping you in one way to have the intellect and have the skills to work with others and have the brilliance to decide these difficult things, but it's the first hurdle of getting through the confirmation process, meeting with senators and trying to win them over, watching her family and friends and everything you've ever done to drive through the mud. that whole process is, you have to pick someone who has a gumption to go through that which is going to be the toughest part in the weeks and months ahead as that comes to fruition. there are many stumbling blocks throughout the way and there are people and concerns that may never have been raised, even if you've been nominated to earlier courts and lower courts that will show up when you are nominated to the u.s. supreme court. we seen it again and again and again so whether you've been vetted at five or ten times further government positions and places on the judicial branch, this is a different level. so the election process involves picking someone who will be faithful to her ideals but someone you know can get through the gauntlet, as well. >> harris: the many issues blocking president joe biden spending legislation, that might not be something if they weren't there that this political party would try so hard to do. but they cannot ignore because a majority means, they have to get the majority. and a are going to need that vote. it sounds like a bumper sticker. if you thought joe manchin and kyrsten sinema were powerful yesterday, just look at wednesday. shannon bream, thank you so much for stopping by "outnumbered" and bringing us so much. you we did not know about this process but also about the man who is leaving the u.s. supreme court. i want to bring in leo terrel, civil rights attorney at fox news contributor. i heard a voice in the distance that i haven't heard for a while, so before you talk i want to go to guy benson and give guidance on the first question to you. guy, are you with me? >> guy: yes, i appreciate that. as i've been listening to all of our experts on the air talking about this, i start to wonder if, in fact, this could end up being a relatively low octane supreme court fight? because as i've said, this would not change the of the court. i think this would be an easy base when joe biden. he promised to -- this would be a w for him and i know we are focused on joe manchin and kyrsten sinema, and there are some republicans who would be so inclined to vote in favor of the confirmation of whoever this is going to be. susan collins for example is one of every democrat nominated justice in her tenant. like the ceiling over the floor might not be 50, it might be 51 or 52 as this process began and i just wonder, how republicans might want to play this battle, is it worth going to the maps particularly if the map looks favorable for the nominee, or does it depend on who the nominee is? >> thanks for the question, i think it's a combination of both. let's be very clear, it's an election year and republicans no basically that if democrats stand firm they will get the nominee approved. the key here is this. you will have a black woman nominated, and it would be tough for some republicans to vote against a black woman because of the race card. so, there is that racial component, and republicans will look at it and say, you know what? it would not be in my best interest because of the attacks that they can anticipate being made against them, totally baseless but don't be naive. the race card is going to be played if you vote against this particular nominee. you hear that joe manchin, you hear that kyrsten sinema? i would submit to you that there will be certain people that will hold their fire based on the likely outcome and they don't want to be attacked by the left. >> and the stakes are relatively low, i agree. >> harris: leo, is that fair? >> no, harris. this is why we have a very, very incompetent vice president. joe biden played the race card and locked in joe manchin and kamala harris. and that race card will be played again here. the back-and-forth media, the left-wing media, they will play up the race card. a black female be nominated, all those things, but the race card should not be played at all. you should pick the most qualified candidate and i'll tell you right now, i've already put my name in. i got great references, kayleigh mcenany, emily compagno, -- i have 30 years of civil rights experience. >> harris: but you are not a woman. you are younger though, you're younger than 83. i know we just about this and keep it lighthearted, but at the end of the day, we just want people who are competent to do their jobs. that's the only way the whole country moves forward. no matter what race or ethnicity you are. if we are choosing people at this juncture -- and by the way, are we going to choose based on diversity of thought? conservatives will still have the majority no matter who the democrats put up. and two guys point compass it even worth the fight for republicans to get in the free? >> absolutely, i agree. you don't want to fight this battle because the outcome is very predictable but what you said is so important. but when we talk about where we come from, we are the most advanced society ever. if you have the left playing the race card and people are not -- and and there is no systemic racism in this country. there is no need to give one person left france over another but the democrats use that card to divide this country. that's why joe biden is going to play the race and gender card in this nomination. >> harris: anyone else with a quick question for leo terrel as we head to the top of the hour? >> hi, leo. just a quick final thought on one of justice breyer's most recent cases that had to do with a vaccine mandate where he declines to issue an injunction, where they are in maine, it was about the health care workers and the mandate for them to be vaccinated. justice breyer, he agreed, he affirmed with a lower court's ruling that it did not infringe on religious rights because those workers could choose to leave their jobs. that not providing a religious exemption for the mandate was not equal to leaving their jobs, which i found fascinating, leo. that instead of ensuring a sort of reaffirming that your religious right to worship should be included with your right to work, he really parsed that out and refused to touch it. >> i agree with you 100%. you're talking about a constitutional right being downgraded and it's shocking that briar took that approach and i agree with you 100% on that. >> harris: leo come up before we let you go, one of the things that has been kind of put out there this hour is how quickly this process could go now. if justice breyer stays in his seat until the end of the term and our reporting is, that's going to happen, it should be june or july based on shannon bream and bret baier and it david spunt who brought us information this hour, that doesn't leave us a whole lot of time. so the gist of what i'm hearing you and guy saying is, they are not going to make this hard. the president will likely not go out and find a candidate who will be impossible to nominate. so where does this put us on the issues? it can briar pond and say i'm not going to weigh in on a whole lot? let the next guy or woman do it? >> i think briar is going to go out and do his job. i've been watching the program, he's basically been constructively forced to resign. but i think you are going to have him complete his term, i think there will be a nominee already in waiting, and once this term ends i guarantee you will see a very swift process of getting this anticipated nominee confirmed by the senate. and they will use the midterm elections to basically schedule this, to give it the most oxygen for the democratic candidates that are running and facing that in midterm. >> emily: paris, if i could make one point to you, you brought up the name kamala harris. i've seen an article based on three dozen sources. when kamala harris' office is depressed as a bat down the aaron sorkin style rumor that biden might try to replace her by nominating her to a scotus vacancy, that chatter has reached the top levels of the bite in orbit according to one person who has heard it. >> it's not really a theory, i like to talk about everything and she fits the categories that some pressure is being put on by lawmakers putting out their statements about what they want biden to do right now. woman, black and younger. thank you for watching the breaking news. "america reports" now. >> take it from there as we kick off with this fox news alert, fox confirming long time supreme court justice stephen breyer will retire. a critical moment for the court, giving president joe biden the opportunity to fill breyer's seat. i'm sandra smith in new, i don't. a lot of breaking news this afternoon. trace, great to be with you. >> breyer has served on the supreme court since 1994 after nominated by president bill clinton. 83-year-old breyer is the oldest justice on the