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the senior liberal justice followed by sotomayor and kagan. gives biden the first supreme court opening of his presidency. they have urged him to retire ahead of the fall's midterm elections. >> sandra: shannon bream, big questions whether or not he's choosing to retire now or forced to. >> well, we all remember over the last few years what happened with justice ginsburg, there was enormous pressure on her, op-eds, legal pundits, professors, law schools, people calling on her to resign so that her seat could be filled by somebody who was like-minded. she resisted the pressure. if anything, we thought it made her more resistant. i think justice breyer has much the same attitude. he's 83, leaves a legacy to be proud of on the court. many other interests, and he gets it. this is a smart, smart individual who is aware of the political climate. i think if he felt he was being forced into it he would not do it. if it feels like his own decision, and yes happens to be political pressure, too, i suspect with him, it's going to feel like the right time being with him. very pragmatic, he's not a flame thrower, he likes to try to build coalitions where he is, where he can, but clearly he is a stalwart legal liberal when it comes to the court. so, he can see the writing on the wall, what the atmosphere is. but i think he was probably much more resistant to pressure, if anything, that probably made him hesitate last year and think deeply about it this year. at 83 and 1 of the most senior members of the court, he is somebody who has a lot of other interests. he writes, he travels, he speaks, he enjoys all of that. and bringing some humor to the court and i think taking it to people so they can get an inside view. i think he'll keep continuing doing those things even once he leaves the bench and this is a term to go out on. it has to have big decisions on guns, abortion, on all kinds of hot topics, so he's going to have a final voice in all of those things. the fight over filling his seat is going to be a big political one. as i mentioned last hour, just for example, he was confirmed to the bench 87-9 during the clinton years. that is not going to be anywhere near the kind of vote we are going to see this time around. the president has talked about, vowed that he would appoint an african american female to the bench. we have a pretty small list of who we think his top contenders are, but has to pick the nominee to appeal to joe manchin sinema. >> and the end of the term, late june, early july, the president would have until october 3rd to announce a nominee. do you think it will be faster than that? they want to clearly get it done before the midterm elections. what do you think we are looking at time-wise here? >> you know, i think that obviously they are going to start vetting, they have been vetting people but will do that in earnest with 4, 5, 6 people they are very serious about. by the time justice breyer retires, late june, early july, committed to the end of the term, we'll have a name quickly. all the considerations have already been going on. you also have to remember there are some out there who have posited, it could be a good midterm issue saying we have to hold on to the senate and the seat, it's open now, you have to give us, democrats maintaining control, maybe even increasing control in the senate so we can have somebody that is the president's pick, like-minded to the jurisprudence of a stephen breyer. so i don't know how long it drags out. i think it very much depends on the nominee, if it's somebody that like i said that joe manchin can get along, the moderates, say i can vote for this person without hesitation and does not turn into vice president kamala harris being the tie vote. if she's not the nominee. >> all right, shannon. joining us on the breaking news, shannon, obviously a lot more to learn about the timing of this. there is not a statement by the way, we have not received a formal statement from justice breyer's office yet, have we? >> we have not. i continue to check my email here, but i think a lot of that goes to he's talking and notifying the people closest to him, obviously, the other justices, clerks, former clerks, and the white house eventually and i think once that letter goes out to the white house we'll get that formal statement from the courts, but of course these justices do things on their timeline when they are ready and he is working through that process right now, apparently. >> president biden has said he would nominate a black female justice, shannon. what do you make of that, and who do you think right now the leading candidate would be? i know you mentioned kamala harris there, but who do you think the leading candidate is right now? >> i think also we have to look at federal judge brown jackson. she's on the d.c. circuit court of appeals, considered aaa, before you get to the supreme court. numerous justices on the bench now came through the court. she's viewed as highly intelligent, very qualified, and sitting on that court has given her even more of addition to her resume, that's where you go before you end up at the supreme court for many justices. i think justice krueger from the california supreme court, another woman of intellect, and often seen as a swing vote, who does build compromise. again, she's clearly, the president is only going to pick someone who he thinks lines up with his judicial philosophy, but might have more appeal to those concerned who call themselves moderates, give me somebody who is a consensus builder, potential swing vote, and so i think i would keep my eye on those two in the coming days. i don't think there is any way the president can back off the pledge to the voters that he would select an african american woman so it gives us a more narrow focus on who the nominees might be. >> shannon bream joining us on the breaking news. thank you very much. joining us by phone is garrett ventry, a former media advisor to justice neil gorsuch, and chuck grassley as well. you held a lot of roles in washington. as an advisor to justice gorsuch, inside look at the court in a way many of us have not. what can you add to the developing story as we note we have not gotten an official statement from justice breyer as of yet, or an exact date as to when this retirement will begin. >> yeah, sandra, thanks for having me on. and yeah, any time there is a supreme court justice who retires and sets up a massive political battle, especially in the midterm, it's a 50/50 senate and things could get dicey, obviously, between now and then. so i think what you will see here is the court at some point will have to release a statement as shannon said earlier, probably notifying people close to him prior to doing that. but i think what you are going to see here is this is a long grueling process, you'll have republicans who have to figure out who the nominee is, but figuring out who is the nominee is and what those attacks are on that nominee and trying to stone wall it, because this nominee, whoever it is, when they get confirmed could be on the bench for 2, 3 decades, ruling on some of the big issues of the day, from the second amendment, all the way down to abortion. so this certainly is going to set up a big battle going into midterms. >> sandra: garrett, what can you add -- obviously a lot of speculation as to whether or not justice breyer is choosing to retire or if he is being forced out by the left as they have the white house at this moment. >> i think the idea that justice breyer is forced out by the left, pressure from left leaning groups and some members of congress calling on him to step aside to give president biden an opportunity to pick a new nominee, especially with the midterm elections coming up, and in favor of the republicans, it could have been held up even longer. the idea a supreme court justice would be pressured by billboards and some tweets i think is kind of ridiculous. he served on the court now for about three decades and the oldest serving justice. i think he obviously would retire in his own time. i don't believe that supreme court justice would give in to pressure from tweets or billboards. >> sandra: garrett, final question to you. always curiosity about the relationships on the court, and having sat down with justice gorsuch myself i remember asking him about those relationships and he joked about the light heartedness of this justice, breyer, and he's a joke teller. knock knock jokes, a lot of knock knock jokes and tests them out on the other justices. a final thought on his role on the court and sort of his legacy on the court. >> absolutely. you know, there's been a lot of reporting justices don't get along with each other, that's simply not true. also i mean, justice breyer, served three decades, ruled on major issues, he, you know, i think his legacy will be a good one, especially more viewing the court in the left leaning loss. >> sandra: thank you very much for calling in. >> thanks, sandra. >> andy mccarthy, former federal prosecutor, fox news contributor, i was dipping into sandra's conversation there because jen psaki tweeted the following, she says "always 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 at the white house" but there has been a lot of pressure, andy, on justice breyer to retire. you talk about this group demand justice launching the campaign, breyer retire, what do you think about that? the last guest says no, you don't really pressure a supreme court justice to step down. do you buy into that, andy? >> well, you do pressure them, but i agree, trace, with what garrett ventry told sandra, which is there's a big difference between pressure and force, right? the way our system is designed, nobody can force a supreme justice to do nothing. basically they are, you know, they are life tenured, once they are appointed and on the court they can't be forced. now, being i think with respect to justice breyer he is a person of very good will, he's also a committed progressive legal theoryist, and how he gets replaced and anybody who is thoughtful and of that ventive mind would have to look at the way the board is teed up. if the republicans take over congress -- take over the senate in 2022, which is entirely possible, it's going to be harder for the biden administration to get the nominee they want on the court, because they will have to deal with the republicans in a way that they won't have between now and the next congress. so he's got to be taking that into account. and he probably doesn't, also doesn't want to be in the same situation and you do at 83 have to think about your mortality and your ability to carry on. he doesn't want to see the ginsburg situation arise again, i'm sure, where the opposite party in the senate has the with hand and can delay confirmation until after, say, the 2024 election when a republican would get potentially to replace him. so, i think he thinks about all these things and probably the pressure he puts on himself is more important than the pressure he gets from leftist groups. >> sandra: just going through the list of possible nominees under president biden as we noted earlier, he promised repeatedly to nominate a black woman is the supreme court when a position came available, so now of course going through the list of those possibilities, including judge michelle child's of the u.s. district court in south carolina, justice leondra krueger of the california supreme court. as i read down the list, i bring this point up from jonathan turley, he made it earlier, timing of the breyer retirement is telling. assuming he remains on the court until june or july, just enough time for president biden to secure a new confirmation. awaiting a formal statement from his office, andy. we've in on the possible replacement, some of those names i mentioned and some we put on the screen. >> well, i'm going to do the smart thing here, sandra, and go with shannon, which is that i think brown jackson is certainly the favorite here. >> sandra: u.s. court of appeals. >> yeah, at the d.c. circuit, which is obviously very important court and often a stepping stone to the supreme court. the other thing i throw into the mix about her, i have not heard too much up until now, she's a breyer clerk. she clerked for justice breyer on the supreme court. and i throw that -- >> sandra: adding one thing to that, interesting note from our chad pergram on capitol hill, that brown jackson is the sister-in-law of former house speaker paul ryan. >> yeah, i still think -- i think that's an interesting connection but i think the breyer connection is even more interesting and the reason, sandra, is remember when they were, the trump administration was reportedly trying to pressure justice kennedy to step aside so he would get an appointment, and who knows what those discussions were, but the next two appointments were kennedy clerks. neil gorsuch and bret kavanaugh, and foolish to think those kind of like gee, i wonder who would replace me conversations don't go on, and i think the up side for judge jackson, she's already recently been confirmed by the senate, so you know, it would be very difficult to make a case that she's too radical to take the next step up because they just basically put her on a very important court. >> i want to put that list back up on the screen if i can, andy, the send spot, that is leondra kruger, california supreme court justice, born in 1976. a former obama justice department member, argued 12 cases before the supreme court. she clerked, you talk about someone, you know, how brown jackson clerked for justice breyer, she clerked for justice john paul stevens, sterling resume and apparently according to colleagues, a very strong favorite for a supreme court seat if biden holds on to his campaign promise of nominating a black woman. do you know anything about her, and is the california supreme court, any state supreme court as big a stepping stone to the supreme court as an appellate court, appeals court, one of the district courts, andy? >> trace, it doesn't happen as often but that's a stellar credential, and what i know about that particular judge is pretty much the resume you just outlined, which is a sterling resume, and it has the advantage of i think she's about six years or so younger than judge jackson. so one of the things that is a consideration here is if you can get a judge of your liking on to the supreme court, the younger the better as far as they are concerned, right. because you know, she could be on for a very long time. >> i just, if i can, sandra, quickly, what andy was saying there, the last time it happened, the last u.s. supreme court justice that was taken from the state level back in 1981, justice sandra day o'connor, andy, to your point there. >> sandra: i was going to get this in. the reaction pouring in is really something, it goes a lot of different directions, i'll read from newt gingrinch. republicans should establish two simple tests for justice breyer's successor. first, competent, second, liberal but not radical. legitimate for president biden to nominate a solid liberal to the supreme court. perhaps it's obvious but he said it. >> well, i think that's right. i mean, the main rule here, you are going to be dealing with very stellar people, so the rule, probably the big qualification here is 50 plus 1 equals 51, they can get him confirmed. on that basis, the only thing i would add, i don't think there's a prayer that vice president harris will be nominated to the supreme court because you couldn't put her on the court without biden effectively losing control of the senate, because what would happen is you would have to get a new vice president confirmed which means it would be up to mitch mcconnell when that happened, you know, when you would vote for a new vice president, and why would mcconnell help biden get back to 51 in the senate? doesn't make any sense to me. >> sandra: andy mccarthy, appreciate you joining us on the breaking news. >> ultimate catch 22. jacqui heinrich, jacqui, give us an idea what you are hearing from the white house right now. >> here at the white house, press, the press secretary, jen psaki said we are not going to have much to say about this. the president has always said if he had a chance to nominate someone to the supreme court he would. it would be the first supreme court pick of his presidency, potentially the only one, and we have been talking about all hour, he pledged on the campaign trail that he would nominate a black woman. now, jonathan turley pointed out interestingly enough last hour that that would tee up sort of an interesting decision for biden on whether he wanted to follow through with the pledge he made in the spirit of representation for a court that would not accept that kind of exclusion for something like college admissions, excluding everyone who is not black and female. but the president has made pretty clear his objective. full representation to get a black woman on to the supreme court and a short list you have been talking about, some names circulated, including his first judicial nominees, widely expected to be at the top of the list, brown jackson, u.s. court of appeals for the d.c. circuit. the senate can confirm the nominee with only a simple majority. back in 2017, republicans lowered the threshold from the 60 vote threshold with the filibuster to a simple majority, and now the democrats will have their very first chance to nominate or confirm someone on that basis. but to the discussion about vice presidential kamala harris being the nominee, chad pointed out we have a 50/50 senate, the vice president is the only person to break a tie. so if in this wild world where she is the nominee and 50/50 senate, there is a chance i suppose in theory, anyway, she would have to break the tie in her own confirmation. but we are leagues away from something like that, guys. >> sandra: jacqui, the president is weighing in now on the news of justice breyer. let's listen. >> we are going to -- i'll be happy to talk about this later, i'm going to get into this issue, ok. we'll -- we are going to start by asking tom, tom to offer your thoughts, please. >> yeah, thank you. mr. president, it's an honor to be here. i'm just going to -- it's an honor to be here, thank you for inviting me to this event, and i just want to say -- >> guys, let's -- >> i just wanted to say that -- >> the audio is kind of bad, we will monitor the meeting with the president. jacqui, the white house, breaking news from the wall street journal, reporting that president biden is to travel to new york next thursday, february 3rd, to meet with new york city mayor eric adams and discuss efforts to combat gun crime and this is according to the white house via the wall street journal just now. >> yeah, we saw that schedule come out, wonder if he's going to be discussing crime, why he wouldn't have shown up for the officer's funeral on friday, we know he's going to be in pittsburgh on friday, this is part of the, you know, travel around the country the president said he was going to be doing more. in the year-end press conference, an issue with messaging, tough for the americans to see the achievements of his administration, he's going to be out in country touting what has been accomplished here in his administration, that's what he's doing on friday, and then this event next thursday in new york city will address the crime situation. his department of justice has been working to bolster sort of a federal response to things like ghost guns, sending out task forces to big cities like new york to crack down on gun crime, i imagine some of what they will discuss there, sandra. >> big news all around, we'll continue to monitor the president and bring the news to our viewers as it comes in, trace. what a day so far. >> yeah, what a day, and it's interesting, we should note that the president we kind of pulled out, audio was bad, the president at the very top of that event was not talking about justice breyer, the retirement of justice breyer, he was talking about build back better, so it seems like he's not really going to address this until he's briefed on it and has a little bit more knowledge on exactly what's going down and how they want to play this, jen psaki was saying no pressure at all on justice breyer to step down here, of course over the past several months there has been tremendous pressure from the left for him to retire, and now he is, and the next point of interest is what happens now. >> sandra: and i believe that he was asked a question or at least weighed in on it for a brief moment when we were dipping in, we did in the capitol hill 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(excited yell) woo-hoo! ensure max protein. with thirty grams of protein, one gram of sugar, and nutrients to support immune health. . ♪ ♪making your way in the world today♪ ♪takes everything you've got♪ ♪ ♪taking a break from all your worries ♪ ♪sure would help a lot ♪ ♪wouldn't you like to get away? ♪ ♪ ♪ sometimes you want to go ♪ ♪where everybody knows your name ♪ ♪ ♪and they're always glad you came ♪ hello, for the last few years, i've been a little obsessed ♪ with chasing the big idaho potato truck. but it's not like that's my only interest. i also love cooking with heart-healthy, idaho potatoes. always look for the grown in idaho seal. >> sandra: fox news alert, bring you the breaking news that we have confirmed that the intention of supreme court justice breyer to announce his retirement. he has not formally done so himself, but we have confirmed that news. senator lindsey graham among the latest to weigh in, i appreciate his service to the nation, scholar and gentleman and record in the liberal camp. president biden was speaking just a few moments ago in the meeting at the white house, we tried to get in, when a reporter asked him about justice breyer's retirement, and reuters is reporting that what he said when asked was that there has been no announcement from the u.s. supreme court justice breyer, and that is true. his office has not put out a formal statement. we'll see what more comes from the white house and the president as we get to jonathan turley now, george washington university law professor and fox news contributor. jonathan, what can you add in the moment as we are digesting this news? >> well, first, i think it's important to note that the retirement of justice breyer brings to the close a really remarkable career. one can disagree with his jurisprudence, but he wrote profoundly on the depth and breadth of american law, and it is, in fact, his sort of penetrating analysis on areas ranging from all of the major issues we face today, from the death penalty to abortion, that is going to leave a lasting mark on the court. that's the reason many of us objected to how he was being treated by liberal groups and commentators. he deserves better than how he's been treated for the last few months with billboards and others demanding that he retire. i don't think that forced him off the court. i think that he definitely wanted to guaranteed that his seat would be filled with another liberal jurist. you know, it's interesting when ruth bader ginsburg decided not to retire during president obama's term, i wrote a column saying you are taking quite the risk. but that was considered no one really felt comfortable telling this icon you should leave the court. not the case with brian. the liberal commentators went after him and demanded he leave the court. i think that he reached this conclusion because he felt it was time, but he also reached this conclusion with a real sense of timing. you know, if he leaves the court in june or july, that will give just enough time to replace him, even if there are glitches and delays. and so he is really timing this we'll from that perspective. >> trace: and professor, more on the make-up of the court and so forth but the sound bite from sandra was alluding to president biden talking about the retirement of justice stephen breyer, we want to play that right now. >> thank you, thank you. thank you. >> justice breyer's retirement? >> thank you, guys, let's go, let's go, thank you. >> every justice -- right and opportunity to decide what he or she is going to do and announce it on their own. there have been no announcement from justice breyer. let him make whatever statement he's going to make and i'll be happy to talk about it later. thank you so much. >> bottom line, justices can do as they please. professor, back to your conversation. breyer's retirement would not change the make-up of the court, 6-3, conservative majority. you talked about an article you wrote earlier, you also a few months ago argued the court is not as rigidly ideological as democratic activists and members suggest. but that does not mean this is not going to be a knock down drag out battle, true? >> yeah, that's right. and you know, breyer really earned the ire of a lot of people from the left when he actually rejected the view that this was a "conservative court." he publicly said it's not, that these justices really try to get these questions right and for that he was called on msnbc naive, and calls increased for his retirement. he really did, i think, stand for the institution itself. he was a strong opponent of packing the court, which also drew a lot of criticism from the left in last year or so. >> sandra: so jonathan, as we take in all of this breaking news, a lot of speculation just looking at some of the statements coming out from some of the members of congress, of course, that are predicting this is going to be an all-out battle, senator josh holly saying expect a major battle in the senate if biden nominates woke activists. it would seem as we look out to when this actually happens there could be a very serious battle royale for his replacement. >> well, that's the thing with judicial confirmation fights. they are very unpredictable, you know. harriet meiers was effectively blocked in her effort, robert bork in his effort, and controversy with bret kavanaugh. these things can take unexpected turns and we are living in an age of rage and where reasonable people tend to be shouted down. but having said that, the votes are there, you know. the filibuster was rolled back as it applies to judicial nominations, including the supreme court. so they can get this through on a majority vote. but it will be a nomination that will be unnecessarily clouded in controversy. i was very critical when president biden pledged that he would not consider anyone other than an african american woman. it was entirely unnecessary, you could have made that diversity aspect an important one in your selection, but he said that he would only consider nominees who were african american and women. that's going to place a controversy with regard to this nomination that really didn't have to happen. i mean, that was something that he was using politically but i think that he damaged the process when he did that. >> trace: going back and reading some interviews justice breyer has done over the past year or so, back in june, two months before he turned 83, 82 years old back in june and said he was not ready to retire. he had no plans to retire, and you bounce ahead seven months, and clear there is pressure and now says you know what, i'm going to retire. does the timing there surprise you? is that a change of will in a matter of just a few months? >> well, the only thing that is not surprising in my view is that he's retiring at this point. the midterm elections really was a hard stop date for breyer, if you wanted to guarantee that his seat stays with the liberal jurist. what happened with ruth bader ginsburg really was fairly catastrophic for the left. that was a true flipped seat, and i don't think breyer wanted to be blamed for that. he's intellectually as sharp as he has ever been, and that's saying a lot, because he's quite brilliant, and he has not diminished at all. and so he's not leaving the bench because he's lost a step. he's leaving the bench to stay ahead of the midterm elections and to guarantee that the court does not flip another seat in terms of the ideological balance of the court. >> sandra: jonathan, just looking at the ages of the justices, i'll ask you the question, do you believe that there will be pressure put on any of the other justices, obviously noting justice breyer is the oldest currently sitting on the court, could there possibly be any pressure put on other justices to retire that might be getting up there? >> well, i don't know how successful demand justice is going to be by pleading with justice thomas to retire. my expectation is he's probably not going to find that particularly compelling. you know, the fact is, these justices have shown that they are all doing just fine in terms of their intellectual ability and their productivity. in fact, one of the benefits of having these arguments played at least with audio is to show how really i think these justices are impressive in how they approach these issues and both the left and the right. i think it has done a lot to show that we have a very strong bench on the court. and i think as you go forward, we are obviously going to be more focussed on who is coming next as opposed to what this jurist means for american law. but this is the end of an era, he's one of the, i guess you could call it old liberal guard. we are moving into a new type of court. you know, but breyer really did capture what many of us liked most about the court. he was a person of just impecable civility and professionalism. in oral arguments, he was always decent with counsel. he was very consistent in a liberal jurisprudence, but he was always substantive, and profound in what he said about the law. >> sandra: really interesting, jonathan. news from jennifer griffin who confirmed it from fox, he does indeed intend to retire. she's now saying per her source, who is very close with the justice, that this was an authentic decision for him, and done on his own terms, yet with a pragmatic understanding of the world as it is. i'll let you respond. >> well, i think that puts it perfectly. that pragmatism is looking at the calendar. midterm election would dramatically change the trajectory of any possible nomination. he did not want to be in the same position as ruth bader ginsburg when that seat flipped. and so i think that is clearly the most important motivating factor. i don't think these groups had an impact on him. i think that they were insulting and i think they were disrespectful but i believe he made this decision on his own. and as we move forward i expect that he's going to finish out the term. the thing to keep in mind is some of the most important opinions of his long career may be in the next few weeks. you know, if he retires in june or july he's going to vote on what could be the most impactful decisions on roe vs. wade, second amendment, race preferences in admissions that the court has dealt with in decades. and so it will be quite the finishing act for breyer. but he's likely to be on the dissent on most of those cases. it's his opportunity to have a final word. keep in mind if he's the most senior member on the dissenting side, he can select who will write the opinion, including himself. >> sandra: remarkable statement, remarkable moment and i also also finish with that quote from jennifer griffin per the source close to breyer, noting that he's the 23rd longest serving justice and has had a great opportunity to serve his country for the good. jonathan turley, thank you very much. i'm told we also have a new statement just in, trace. from? >> trace: from hillary clinton who says the following "thank you to justice breyer for 30 years of distinguished service on the bench and for his admirable decision to retire now. we are grateful for your career dedication to fairness and justice for all." >> sandra: ok. let's bring in mike davis, a former law clerk for justice neil gorsuch. mike, thank you for jumping on the breaking news with us. these are people that you have intimate relationships with and you have spent a lot of time with those on the court. give us your thoughts in this moment as i go back to jennifer griffin's reporting about it seems that the justice wants to get it out there, although we are still waiting on a formal statement, that he was not forced out, and that this is a decision that he made on his own. what can you add to this? >> justice breyer is a good man. he was very good to my former boss, justice gorsuch and law clerks including me when we joined the courts. he has shown independence as a justice, he has been very outspoken about the democrats pushing to pack the supreme court. justice has come out and said it's a bad idea. there's no way demand justice or the left wing groups forced him off the bench. i would note it is surprising that the white house, the biden white house let this announcement leak and they let it get out there before justice breyer had the chance to make the announcement. i think it was bad form, very bad form. >> sandra: do you know that to be the case, mike? >> well, he has not put out a statement yet, you have to wonder where the leak came from. it would not have come from the supreme court. >> trace: and president biden earlier said justice breyer has not made the statement. let's let him make the statement before we make the statement. a lot of people are making statements, including dick durbin says he will move biden's nominee expeditiously through committee. these things normally take months, a lot of pressure on this, mike, these kinds of things usually take months to get going. >> yeah, i mean, i was the chief counsel for nominations to former chairman chuck grassley for former president trump's nominations. here is the trick for the biden people. if you nominate someone and they are not prepared for their hearing, that could be disastrous for them. so you want to make sure whoever they pick is fully prepared for the hearing. you saw justice amy coney barrett had her hearing within about a month but she was fully prepared. let's see if these leading contenders for president biden will be as prepared as someone like justice amy coney barrett. >> sandra: going through the transcript of the last time justice breyer joined us on this network on fox news sunday and i look back at his words as trace did as well earlier, and he gave absolutely no indication in that interview that he was considering retirement. in fact, seems he only pushed back on the idea that he would retire. i think, mike, that's why there's been so much speculation that he has been forced out under the presidency. >> i don't think that's true. you've had president biden who campaigned on the fact he's only going to pick a black woman. the field on the left, there are a couple top contenders. judge jackson, recently a year ago elevated to the d.c. circuit, second highest in the land. i assume she'll be the pick. and a year ago she would not have been ready and now we'll see if she's ready, but at least plausible she's a supreme court nominee after being on the d.c. circuit a year. >> trace: you talked about letting this leak, and support that justice breyer may have told the white house as early as a week ago, that there might be a ceremony tomorrow where he will officially announce this. a week is a long time, a week is a long time to keep the lid on something like this. are you now even more surprised that this was inevitably going to get out, are you surprised the white house did not move the whole ceremony up a bit? >> yeah, i don't know what the white house is thinking here. i just think it is very bad form to get out in front of a supreme court justice on their announcement for their retirement, especially a supreme court justice who has been on the court for 26 years and has been a solid justice for the liberals. >> sandra: one last final question to you on possible replacements, you were talking about judge brown jackson. what about justice leondra kruger, what can you tell us from the california supreme court, 45 years old, former obama justice department, argued 12 cases before the supreme court. she also is seen as a top contender, mike. >> solid pick for the democrats. clerked for justice john paul stevens, she was the number -- she was one of the top supreme court attorneys for president obama, on the california supreme court many years. judge jackson was recently confirmed through the senate, and judge kruger turned down president obama's offer to be the solicitor general, at least that was the report. so, it's interesting, you know, maybe she doesn't want to move to d.c., who knows. judge jackson seems like the leading contender, just went through the process. >> sandra: a question on timing. unusual we have not gotten a statement yet. do you have any idea what we might get a statement from breyer's office? >> i do not. and you know, that's going to be up to him, and i can assure you that justice breyer is an independent man and there was no one who pressured justice breyer to leave the supreme court. >> sandra: got it. appreciate you joining us. thank you very much. >> trace: one thing that's interesting, sandra, you can bet there are some lawyers' phones ringing, researchers' phones ringing, vetting process is now in full swing and both parties want to make sure that they are prepared because the democrats are now saying they are going to get this process going and move it through, and i think that's kind of their mantra, get it done as quickly as possible and of course the republicans may want to slow it down a bit in the way they slow it down is with information, to make sure that these potential candidates are prepared for their potential hearings in the future and so the back and forth game is clearly underway. >> sandra: going back to jonathan turley's comment as well about the big job justice breyer has ahead of him with the decisions to be made on the court and implications. more on justice breyer's requirement coming up with carrie severino. big implications to discuss. ca. his girlfriend just caught the bouquet, so he's checking in on that ring fund. oh, that photographer? 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>> oh, wow. that's a big question for a short period of time. i think one of the things we are going to see is you know, obviously without the filibuster, there was a much quicker opportunity to move, but one thing we have seen very regularly is that there is a very consistent pattern where liberals like to put people on the court that are kind of apparent black boxes, don't have as long a record but on the court they are very consistent votes and i think that's what we will probably see from a nominee in this case. >> sandra: reading off the wire here, senate democrats aim to confirm any biden supreme court nominee in time frame similar to one-month process republicans used for justice barrett. this is out there on the wire, a source familiar with the planning on that. carrie, real quick, final, a few seconds. >> that would be really stunning, especially because the supreme court term is not scheduled to end 'til june, i think that could throw some things into chaos. >> sandra: thanks very much. >> confirmed before he's retired. >> sandra: i'm sure we will hear back. new at 2:00, russia issues a brand-new warning. top of the hour, u.s. and nato, tensions over ukraine. we'll be right back. that's a nice truck. yeah, it's the chevy silverado. check out this multi-flex tailgate. multi-flex, huh? 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>> thank you, let's go, let's go, thank you. >> every justice has the right and opportunity to decide when he or she is going to do and announce it on their own. there have been no announcement from justice breyer, let him make whatever statement he is going to make, i'll be happy to talk about it later. thank you so much. >> and the sure fire way to tell the white house is not planning on the president giving formal remarks about the supreme court retirement is that they had a white house communications staffer standing in front of the camera blocking the president. but luckily she moved out of the way, and we did get a clear shot and some audio, he obviously does not want to go there, though, yet. he has promised during the democratic primaries to nominate a black woman but he is signalling right now he's very respectful of the process that breyer is going through, and remember it was joe biden in charge of the senate judiciary committee as a senator from delaware when stephen breyer was going through his confirmation hearings. so, biden was there at the beginning, biden will be there at the end, according to these reports. but he wants the word i am going to retire could come out of breyer's mouth before he starts taking questions about a possible short-lived and replacement. >> trace: confirmed in 1994. >> sandra: jen psaki is expected to brief, a lot of big questions she will be asked today and now the other breaking news. threat of what sources tell our pentagon team could resemble a bloody blitzkrieg in ukraine. admiral, a busy time for you, the country, what happens next on the border, we know secretary blinken just spoke, he said "the ball is in russia's court." so, what does putin do next? >> well, we hope that what mr. putin does next is move some troops away from ukraine and out of belarus and deescalate the tensions. that's causing the tensions right now, the very, very big build-up of forces, combat credible forces along the border with ukraine and belarus. obviously we think diplomacy has a role to play, heard secretary blinken talk about that, we think there is time and space for that and don't believe at this point that mr. putin has made a final decision what he's going to do. >> sandra: i heard you say your hope, your hope, do you have any further knowledge putin would intend to back off the border? >> we have seen nothing, and i said recently at the pentagon, nothing that makes it clear that mr. putin is willing to deescalate and move the troops away. so defend our national security interests and those of our allies and nato, so we have to assume we have to be ready in case he does intend to further destabilize the region by moving into ukraine again. >> trace: seems like, john, the narrative has shifted. now you are talking about time and space and monday seemed like this invasion was inevitable and now it appears the tension has dropped a bit, even the ukrainian president says he does not believe that an invasion is imminent. what has changed over the past 48 hours? >> i think what you are seeing is a constant desire to work inside the time and space that we still believe is there for diplomacy and dialogue to work. again, you know, the pentagon's job is to be ready for all contingencies, that's what we are doing. we certainly would like to see there be a diplomatic path forward that does not resolve into any conflict in ukraine or any where else in europe, we have to be ready in case. >> sandra: k.t. mcfarland was on the program and she questioned the severe sanctions that would be put on russia if putin were to invade. she said what severe sanctions? what significant -- what would that be? what would really cripple russia if they were to invade and we were to respond as president biden has promised to, and would that further harm europe and its economy if you were to cripple russia? >> i think you can understand i would not get into negotiating here on live television and certainly not from the pentagon. i would refer to my state department colleagues to speak to that. i would point you to what the president himself has said, is that when it comes to economic consequences we are thinking about and considering more severe economic consequences than even those we considered in 2014, so there are much more severe consequences being considered. again, i'll let diplomats speak to that. our job at the pentagon is to be ready in case diplomacy fails. >> trace: admiral, stand by if you would, we want to go live to our team on the ground at kyiv, 9:00 p.m., families are settling in for another sleepless night. steve is live in the capital city with more. steve. >> trace, two things going on. another shipment of arms from the u.s. has arrived over the past 24 hours, part of the $200 million shipment of weapons and ammunitions for the front line fighters in ukraine, including several hundred javelin tank missiles, and nato supplying man power to europe. and five western embassies are pulling out part of their staff, warnings from the u.s. about an imminent attack in ukraine, and ukrainian officials giving a strange different message. the defense messenger saying don't panic, don't pack your bags, it could be weeks away. russia does not have enough forces on the border to attack. puzzling to people, different messages, one from the u.s. and the west, and the other from their own officials. >> admiral kirby, back in. steve stand by, steve has a question for the admiral, important to cover from every side. steve. >> admiral, what do you make of the fact you have a defense minister telling the ukrainians with 120,000 russian troops on the border don't pack your back. the foreign minister saying it could be weeks away, they don't have enough troops massed on the border. do they have the proper sense of urgency about an impending invasion? >> we are in constant touch with our ukrainian colleagues, steve and we are sharing our perspectives, context and what we are seeing both sides and sort of making sure that we all are looking at the same set of facts here. what i would tell you is from our perspective, mr. putin has a lot of combat credible capability there around the border with ukraine and in belarus, and he continues to add to it, steve. in just the recent days, he's added more and more troops to it. so, it's concerning to us and we are sharing our information with our ukrainian counterparts and we understand that they are in the neighborhood, and they are going to have a view and we respect that. we have to make sure that we are ready to bolster our nato allies in case a need to do that, and that's what we are focussed on here. >> admiral, thank you. steve back to you as the news breaks. back to the admiral and sandra. >> sandra: admiral, we have been showing the oil statistics on this program a lot because it's worth pointing out that we are buying more oil from russia today, significantly more than we were just four years ago in 2017 in the first year of donald trump's presidency, and the first year of president biden's presidency about 218,000 barrel, 18,000 i believe in the year 2017, we have the graph, we'll put it up there. buying a significant amount more oil from russia today than we were just several years ago. does that put us in a compromising situation today, also looking at the dependency of, say, germany on russia's oil? >> well, look, as far as we are concerned, no, i don't believe it puts us in a compromising position, sandra. obviously again without getting ahead of economic consequences that have not been enacted, we are certainly willing to do that, to be, to have more severe economic consequences on russia should they conduct another incursion into ukraine. and as for germany, we are in constant consultations with our german counterparts as well. i'll let them speak to of course their economy and what they are doing in terms of oil and gas, but we all know that russia would like to have as many levers inside the european continent as they can have. but i think, and i think we believe, that if there's another incursion, one of the outcomes of that aside from the economic consequences is going to be the further isolation of russia on the continent and frankly in the international community and something you would hope mr. putin is thinking about. >> trace: i want to put this on the screen, we have sanctioned many nations. we have strict sanctions on many nations. you can see them right there, kind of rolling. cuba, iran, syria, iraq, crimea region, north korea. the list goes on and my question to you, sir, would be the list goes on, the sanctions are in place, and the bad behavior keeps coming. what is the remedy in your mind? >> look, sanctions are a tool in the toolbox, trace, does not have to be the only one and you have lots of levers and power here. we are talking about the potential for economic consequences that are much more severe than what we have looked at before, particularly back in 2014 with russia, and look, russia's economy is not booming. yeah, it's doing a little better than last year but still fragile and still vulnerable to further or more strict economic consequences and sanctions. we hope it does not have to happen. there's no reason why this has to evolve into conflict or even to severe economic consequences if mr. p utin makes the right decision. >> trace: admiral, why not happen as a preventive, right, preemptive. why not, the president of ukraine is saying look, these need to be in place now, a deterrent, we should not use sanctions to punish, but as a deterrent. >> and sometimes they are used. i'm not going to make decisions for the president of the united states and how he wants to prepare the ground here. we still think, this gets back to secretary blinken, trace, we think there is room and time for diplomacy to work, and we have another set of dialogues here going we think with the russians soon. we want to give time and space for that to occur, and then look, if there's a decision after that, about making moves, whether it's bolstering nato allies on the ground with additional american forces or about using some of the economic levers available to us, you know, then there will be a time for that decision. but i think right now we still believe there's time and space for diplomacy. >> sandra: surely as our military has to plan for all contingencies, and if putin were to decide to invade or perhaps already decided to, you and the pentagon must be planning for the timing of that, and how and when he would move in. we have had general jack keane make predictions, keith kellogg as well, talking about the temperature of the ground, frozen ground needed to make the invasion happen or the likelihood of one, and general jack keane talking about the olympics and that he perhaps may wait until after the olympics. what is the contingency plan should putin decide to invade, when is it you predict he would? >> i'm going to stay away from predictions on live tv. i think you can understand that. what we have said, he has a lot of combat power already in place, means he has options available to him right now. and without getting into any predictions, we have to be ready in case this happens very, very soon, and that's why, frankly, secretary austin put on prepare to deploy orders a certain amount of american troops in case we need to get them over as part of the nato response force. we don't get to activate that, but here at the pentagon, you are right, sandra, we are planning for a range of contingencies. our job is to give the president options and that's what we are working on right now. as for a specific timeline, i think that's up to mr. putin. we still believe here today that he has not made a final decision. that means we think there is time and space to effect that decision calculus and that's what secretary blinken was trying to talk about today. >> trace: as you say, predictions and assessments can be tricky things. 2012, this sound bite, between former president barack obama and his then, his then contender, mitt romney in a debate. >> a few months ago when asked what's the biggest geopolitical threat, russia, not al-qaeda, but russia: >> that administration never put russia's feet to the fire, this is part of that administration, including the president, including you. what do you say to critics who say we don't believe this administration will actually put russia's feet to the fire. >> well, i would say look no further than the comments that president biden has made as recently as yesterday, in terms of the economic consequences that were prepared to enact should there by an incursion. and preparations to bolster nato allies and make sure they are ready and the video you have been showing regularly over the last couple of days of additional security assistance going to the ukrainian armed forces to include lethal assistance and weapon systems like javelin anti-tank missiles. we are putting a lot of effort into this, to make it clear it would be a big mistake for mr. putin to make. >> sandra: the wall street journal is asking is germany a reliable american ally, nine, it says, and spending only one and a half of gdp, and campaigns like the ones that affected alex i navalny and a british agent. a third it is estimated of natural gas imports from russia, and almost half, i'm sorry, a third of its oil imports, half estimated of its natural gas. it is cold in germany, they need energy, that is not a question. so they are dependent on russia. is germany on board for fight should it happen? >> with all respect to the wall street journal, i beg to differ. they are a strong ally and good friend and partner and host to thousands of american troops who are permanently deployed and based there in germany. when you think about all the things they have done. the wars in iraq and afghanistan, using the medical facilities there on base in germany to host and to take care of our wounded, for hosting additional u.s. troops you have now inked an agreement a few months ago for another few hundred american troops on german soil, they are a reliable ally. >> sandra: admiral, you acknowledge they could face severe economic consequences should they join the fight. >> well, look, that's really a decision for german lawmakers and the german government to make, not the united states, and we respect that you know, they are in the neighborhood and they have domestic concerns they have to deal with. i think we have been very honest and candid about our concerns with nord stream 2, you don't have to look further than the thousands of americans that they host right now and are still hosting and would continue to host should we have to bolster our support to nato allies in case of another incursion. >> trace: you talk about germans domestic concerns, one concern is that half of their natural gas comes from russia, that is a major concern as we say, there is no pentagon briefing today. the information coming from the pentagon is coming right here, admiral, appreciate you coming on. point out of the 8500 troops committed to the region, you know, we are being told that when you say putin will be sorry if he crosses that line, we are being told those troops can't do anything without nato's approval, has nato penned you in a bit on this? >> no, no, no, quite the contrary. these 8500, just a slice, we have tens of thousands of troops already in europe, permanently and rotation nally. the 8500 are on heightened alert for a possible deployment, the american contribution to the nato response force, which actually totals 40,000 multi-national troops, we want to make sure if the alliance calls on us we are ready to go. we put the troops on the shorter tether to make sure they are more ready. >> sandra: that is a lot, this as we continue to face our own foreign threats at our own southern border. final thought on that, admiral kirby? >> as you know, we have national guardsmen and other troops down at the border taking some of the work load off of our immigration and border patrol officers. we are not involved in actual immigration, we would not do that, but we understand that there's a lot going on and we continue to pitch in to take some of the logistics, some of the sustainment, you know, some of the reconnaissance tasks so they can focus on appropriately their immigration duties. we understand that well and in constant contact with our colleagues at d.h.s. about the future of it going forward. >> sandra: admiral kirby, appreciate the time you have given us and audience, appreciate the transparency, the questions, the answers, we really appreciate your time. thank you so much for joining us on the program. >> happy to be here. >> trace: a lot of talk about justice stephen breyer's three decades on the nation's highest court. now the focus shifting to what comes next. mitch mcconnell blocked president obama's nominee, can they do something similar this election year. that's next. living with diabetes? 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be proactive about managing your symptoms by talking to your doctor about twice-daily xiidra. like i did. i prefer you didn't. xiidra. not today, dry eye. it's your home. i prefer you didn't. and there's no place like wayfair to make the morning chaos, organized chaos. however you make it, make your home a place like no other. i lost 26 pounds and i feel incredible. with the new personalpoints program, i answer questions about my goals and the foods i love. i like that the ww personalpoints plan is built just for me. download the ww app today for a 14-day free trial. i have moderate to severe ulcerative colitis. so i'm taking zeposia, a once-daily pill. because i won't let uc stop me from being me. zeposia can help people with uc achieve and maintain remission. and it's the first and only s1p receptor modulator approved for uc. don't take zeposia if you've had a heart attack, chest pain, stroke or mini-stroke, heart failure in the last 6 months, irregular or abnormal heartbeat not corrected by a pacemaker, if you have untreated severe breathing problems during your sleep, or if you take medicines called maois. zeposia may cause serious side effects including infections that can be life-threatening and cause death, slow heart rate, liver or breathing problems, increased blood pressure, macular edema, and swelling and narrowing of the brain's blood vessels. though unlikely, a risk of pml--a rare, serious, potentially fatal brain infection--cannot be ruled out. tell your doctor about all your medical conditions, medications, or if you are or plan to become pregnant. if you can become pregnant, use birth control during treatment and for 3 months after you stop taking zeposia. don't let uc stop you from doing you. ask your doctor about once-daily zeposia. >> sandra: fox news alert, federal reserve made announcement that the markets seem to have been waiting for with quite a rally happening as it just got word the fed is setting the stage for interest rates to begin going up in march. the decision, i should say the indication, not yet a decision, after a two-day meeting, all this as the markets bounce back from what has been a wild week on wall street so far. 333 point gain. the federal reserve was widely expected to give a hint as to when it would start raising interest rates, it did just that, and appears it will happen as soon as march. with the central bank saying with inflation well above 2%, well, well, well above 2%, right, and strong labor market the committee expects it will soon be appropriate to raise the target range for the federal funds rate, and the markets have been anticipating that, that's why there is a lot of volatility, some single day selloffs we have seen, a lot of uncertainty when it would happen and appears it would sort of, i don't know, by the news, they saw this was coming and so it's nearly an indication at this point that the fed might start raising rates come march. >> trace: and that's the concern a lot of people have, inflation up here and the fed maybe ticking rates up a little bit, a couple, three times this year, people are concerned they are going to pay a lot for the stuff they need every day and a lot for the money they need for the big ticket items. other breaking news if you have been following us, we clearly have the huge news of the day, that man right there, 83-year-old justice stephen breyer will retire, the word is it will happen at the end of this term, meaning he would step down in either late june or early july and the president would have until october 3rd, the beginning of next term t nominate a replacement. i want to read this, we'll have chad come in and talk about mitch mcconnell's next move on this. dick durbin, the chair of the senate judiciary committee, said with this supreme court vacancy, president biden has the opportunity to nominate someone who will bring diversity, experience and even-handed approach to the administration of justice. i look forward to moving the president's nominee expeditiously through the committee, and chad pergram, clearly the democrats want to move this as fast as they possibly can. the question is, do mitch mcconnell and republicans want to slow this process down? >> good afternoon, trace. confirmation of a supreme court justice is going to hinge on one thing, the math. democrats have never had the opportunity to confirm a justice with the bar lowered to a simple majority over a filibuster, mcconnell in 2017, he dropped the threshold to end the filibuster from supreme court justices from 60 votes to a simple majority, nuclear option two, and then gorsuch, kavanaugh, and amy coney barrett. all democrats must stick together along with the vote of vice president harris or democrats need to poach the votes of a few democrats, and manchin and sinema. manchin would like a centrist nominated to the court. >> and i'm curious, chad, just quickly before we go on to more of shannon bream. curious as to this whole notion that you know, the tie breaking vote in the senate would be kamala harris. the whole idea that kamala harris potentially could be a supreme court nominee. just chatter, pretty much, have you heard that at all where you are, chad? >> we have heard the chatter. only the vice president may break a tie in the senate. never been a filibuster against a supreme court nominee in modern times. justice fortis was on the court when he faced a filibuster to be a chief justice and then he resigned. a question how soon they could nominate someone. they could start the confirmation process before justice breyer leaves the court. the goal here is to always confirm the justice by the first monday in october. that is when the high court begins its fall term. we saw with amy coney barrett, she went from nomination to confirmation in about 30 days. usually takes 60 some, 70 some days for most nominees here, and also don't forget about the midterm elections. they confirmed brett kavanaugh a month before the midterms in 2018, you can see the senate with the competitive senate race in georgia, and warnock in his senate bid there and cuts two ways. it could be a problem for mark kelly, a moderate centrist in arizona, and moderate someone too liberal, it could be tough for him, trace. >> trace: chad pergram, thank you. sandra. >> sandra: nobody like chad. we minder, we are waiting on the white house press briefing, we'll see what jen psaki has to say when she takes questions and what president biden may know and did the justice tell the white house ahead of this. shannon bream is live, she's joining us now. great to see you on this breaking news, all sort of still taking this in and trying to predict what this means and what will happen next. real quickly, when mike davis joined us last hour, he seemed to make a suggestion about how this went down, listen. >> it is surprising that the white house, the biden white house let this announcement leak and they let it get out there before justice breyer had the chance to make the announcement, i think it was bad form. >> sandra: i followed up right away and said do you know that to be the case? and he said he has not put out a statement yet. you have to wonder where the leak came from. would not have come from the supreme court. so in the speculation phase, we have not received the formal statement from justice breyer's office yet. >> yeah, and that's, that could be telling, potentially. i have multiple sources telling me that justice breyer was not planning to announce it today. and the longer we wait, seems that is a possibility. i'm told he is "upset" the way this is being handled, not the timeline he had planned. we have reached to him and the courts to get clarification, and maybe in the statement we will learn more. we know there is pressure for months as there was on justice ginsburg to step down while the democrats have control of the senate, narrow though it is, but i think it makes sense that he was probably going to retire this term anyway, and we are told and what jennifer griffin has been told by a good source, this is not his timing or his plan and that he was going to step down. the timing of the announcement, i do think causes a lot of questions for many of us, especially i have the sources saying it was not planned for today. hopefully we'll have clarity on that soon. he knows the make-up of the senate, knows his legacy and wanting to have the best shot having someone who shares his judicial philosophy to fill his seat after he leaves. any justice as a human being will think about that. and a note on the front-runner a lot of people are looking to judge ketanji brown jackson, she served as a district federal judge and now the d.c. circuit and that was less than a year ago confirmed to the bench and got republican votes in the senator that. she would be a very smart picked based on her background, match to the biden administration. certainly front-runner as we wait and watch still for this official announcement from the courts. >> we should notice at the bottom of the screen, a few seconds ago, the two-minute warning for the white house briefing, probably down to a minute now, shannon. i want to see if i can go you one better, your source is telling you breyer was not going to make the announcement today. what do you make of these reports that the white house was notified maybe as early as last week that justice breyer was going to step down. these things just can't be held. nothing gets held. have you surprised maybe there was not an effort to kind of bump this whole thing up a bit? >> i don't know. because you think about it. that's pretty -- that's considered pretty sacred when a justice is going to deliver this to the white house and say i'm thinking about this. he may have had a conversation saying later in the term, something i'm thinking about, planning for, announce it later. i doubt the formal paper from him, the letter of, you know, i'm going to retire has been sitting at the white house. maybe it has but he could not expect it to stay under wraps if he did send it. my sense is he had a conversation with the white house or those in the know that he was moving toward this decision but my sense again from the sources i've talked to today is that he felt this was pushed before he was ready to make it official. >> sandra: so i guess we are left wondering when a possible announcement could come and i will ask you a question i asked jonathan turley last hour, top of the hour, they are running together now, not a lot of commercial breaks during the breaking news. do you believe shannon, or have any knowledge that some of the other justices, based on their age, might start to be pressured to move out? >> well, again, i mean, the most senior member is justice thomas, he's not pressured out by the left, there's no way. i think he will stay on the bench absolutely as long as he feels he is mentally and physically able to be there. he's very robust. seems in the last year or two, especially, he's come into his own with the very strong voice in a way he was not doing before the pandemic, put it on the phone lines and not in the courtroom for many arguments. i think he has sort of gotten a second wind on the court. he seems very inspired. so he's not going anywhere, i don't think, at least 3 groups that have pressured justice breyer and he says again he's acting without that pressure, but it comes in hey, it won't work on clarence thomas, i don't think. >> trace: it doesn't really change the make-up of the court, shannon, talking about if the democrats get the nominee in the 6-3 majority for conservatives there, and talking with chad pergram earlier and the acrimony with kavanaugh, we don't anticipate or do we to see that kind of atmosphere surrounding this supreme court nominee or am i just hopeful? >> i do think it depends on the nominee. i think there are several who are on the list that people like joe manchin, a key vote can look at and say this person is completely qualified. i think they maybe have a shorter paper trail but confident they are a qualified person who shares the president's philosophy. elections have consequences. you will hear from g.o.p. lindsey graham, among those who voted for judge brown jackson, if she is the nominee. multiple republicans said if they are qualified, it's their purview and the right they have as a president and not the only one, senator collins, senator murkowski. so if judge brown jackson is the nominee, they can stick and vote against they are, i don't think they peel off manchin or sinema. >> sandra: manchin in 2018, i would like to see someone who is a centrist, speaking to the west virginia metro news in july, someone who is a centrist, constitutionallist that believes in the word of law, and lengthy experience, says they should have an extensive career in law, record of upholding the constitution in the rulings and judicial philosophy and appropriate temperament, said senator manchin when interviewed about that a couple years ago. we are still waiting on jen psaki at the white house, shannon, and very interesting when she starts taking questions on this. obviously a lot will be on the timing of this, what president biden knew and when he knew it, and whether they'll confirm this from the white house. but then obviously questions over the future and what president biden's intentions would be with that retirement and vacant seat. >> yeah, and i think finding that right nominee is going to be the key for them. but i think many of the people on the short list out there, they have been recently vetted, these are people that are well known, respected jurists, the senators have time to think about this. part of the whole process, one of the charm that you have as the supreme court nominee to meet with every senator who will see you. sit you down, probe you where you are going to be, not specific issue, not how you will rule on something specific but probe your judicial philosophy and ideology, and it's got to be somebody not only a valuable member of the court -- >> jen psaki, first question. >> hypothetically, supreme court justice was to retire and announce it on his or her own terms, does president biden plan to honor his pledge to nominate a black woman to the court? >> i have commented on this previously. president has stated and reiterated his commitment to nominating a black woman to the supreme court and certainly stands by that. for today, again, i'm just not going to be able to say anything about any specifics until of course justice breyer makes any announcement should he decide to make an announcement. >> secondly, on ukraine. is the white house publicizing the troop build-up of the russians in hopes of deterring moscow and does the white house think the strategy is working and are you prepared to release more details what you say russia has been doing? >> yes on the last one. as we have it, and i think you have all experienced that in here, also at the state department, and defense department briefings, and certainly from briefings delivered which national security officials, senior national security officials as well. i will say josh that we are much more cognizant of the russian disinformation machine than we were in 2014 and many of you covered, of course, the invasion of ukraine in 2014, and we have made a decision, strategic decision to call it disinformation when we see it and all across the federal government, various agencies are working together to fight disinformation and correct it. and part we know the part because we know russia's disinformation operation is highly developed. we are more wiser, we are wiser, the world is wiser than they were in 2021 and russia has a boundless capacity to misrepresent troops and what it's doing and some tactic from their end is intended to set the predicate for them invading and we need to be clear with the global community and the u.s. public what they are trying to do and why. so there's a lot of effort underway to do exactly that. in terms of whether it will have a deterrent effect, i think our biggest effort on that regard is laying out the clear potential consequences but it is also important and we think strategically important to be very clear that what they are trying to convey publicly out there, a lot of that is misinformation and people need to understand and digest that. go ahead. >> jen, what preparations is the white house engaged in broadly in the case of a supreme court vacancy? >> i'm not going to detail any of that from here. >> unrelated to this -- doesn't every white house like to get ahead of it, in the sudden passing, and like ruth bader ginsburg. >> i'm not going to talk about that from here, no. >> any scenario the president would select his vice president kamala harris for the supreme court? >> again, i'm not going to speak to any considerations, preparations, lists, and as we have stated earlier and you heard the president say there's a long history of supreme court justices determining when they may retire, if they retire and announcing that, and that remains to be here today. >> you are more wiser than to take those questions. i'll ask you about a different topic, vladimir putin. the president saying yes he would very much consider personally sanctioning him in the case of a russian invasion. can you give us a sense, russia has dismissed or poo-poohed that idea. >> does russia have a role in determining our sanctions? >> no, what impact would sanctioning vladimir putin have and what would that look like? >> important to know broadly, we have said it will be far beyond any sanctions package, far beyond what was done in 2014, and that includes impacting business and economic interests of president putin and the leadership of the russian government. and while it has been our policy that we are not going to take options off the table from here and we haven't, we also have not detailed what isn't in an initial package, that does not mean everything out there that's being talked about is not in an initial package. >> thank you. >> thank you. >> when you are asked about the vice president possibly being selected as a supreme court nominee you said you are not going to speak to any consideration. does that mean she is being considered? >> again, peter, i'm not going to speak to the reports of a supreme court justice retirement that has not been announced. >> so, in theory -- >> i do like that you pr he face that. >> would someone attorney general of a large state and who served with many key senate votes be an attractive candidate to the president for an open supreme court seat? >> i see what you did there, peter. but the president has every intention as he's said before of running for re-election, and for running for re-election with vice president harris on the ticket as his partner. but again, i will just reiterate that i have nothing more to offer in terms of specifics or information on the reports this morning. >> would you have another question? go ahead, i know other things on your mind, your list over there. >> now that you guys have submitted written responses to russia's demands, saying if we do not receive a constructive answer from the west on our security demands, moscow will take appropriate measures. is that a threat? appropriate measures? >> well, let me first say that the aggressor here as maybe you are echoing in some ways or raising is russia. russia has tens of thousands of troops at the border. they have the ability also to make the decision to deescalate, to bring troops back from the border, to participate in good faith in a diplomatic conversation and that would certainly be our preference. so them making threats i think secretary blinken had a very good quote, or made me laugh that he gave a couple days ago where he said it was like the fox threatening to attack the hens in the hen house because they were feeling threatened by the hens. but our objective is to give them pass and to take part in a diplomatic conversation in good faith. >> the russians talk about appropriate measures, if one of those winds up being a russian cyber attack like they are warning about, have you considered that an act of war? >> well, peter, we have talked many times before, first of all, there's no information we have at this point about any imminent threat against the u.s. homeland. we are always prepared for cyber threats from a range of sources, and we have a range of tools at our disposal to use in reaction, and the president reserves the right to do that. i'm not going to get into an hypothetical. >> on covid origins, you have been talking a lot about sanctions for russia if they dare to invade ukraine. what about sanctions for china at any point for misleading the world about the early days of the global pandemic? >> we have used sanctions as a tool, as it relates to our concerns about the behavior of a range of countries, including officials in china, but i have nothing to preview for you at this point. >> is it possible down the line, though, that they, that sanctions would be considered some other form of punishment for their actions in the early stages of the pandemic? >> you know we strongly believe and the president is clear and directly clear about the importance of them being transparent and providing data and information relating to the origins of the pandemic. i don't have anything to predict in terms of additional actions. >> the president said for months he had not spoken directly to xi about the covid origin investigation. now he says he did talk to xi about it but nobody else was there. if the president had that conversation, did it work, and is xi now playing ball? >> what are you getting at there? suggesting the president was not honest about his own conversation with xi? >> no, but the story did change for months, he was asked about it and said he had not directly asked him about the covid origins. >> we don't share every detail of every diplomatic conversation, you know that. the president answered a direct question a week ago or i think it was a week ago, yes, and provided that information. >> ok. >> go ahead. >> thank you. >> sandra: all right, so, i guess you could say a bit of news there, she was specifically asked right at the top from a reporter about justice breyer's retirement, she backed up what we heard from the president earlier saying until he makes it official we are not going to have additional details. and then asked, biden stand by the promise to nominate a black woman to the supreme court, said yes, trace, and he certainly stands by that. interesting moment then when she was asked is there any scenario where biden would nominate vice president kamala harris to fill the seat, she did not say no. she reiterated she is going to wait to further comment until justice breyer makes it official. >> she would not answer any of the questions on the supreme court except if he still committed to nominating a black woman and she said yes. i want to bring in andy mccarthy, and peter doocy was saying on the kamala harris question, back to december, a little more than a month ago, she was asked on "face the nation," kamala harris, do you have the aspiration to sit on the supreme court. i have not, i have not, she responded, and she went on to say i'm much more active i think in terms of not that the supreme court justices don't have a huge impact, but right now i like what i'm doing. the ability to travel around the country to talk with folks, push policy that has impact more in a very direct way. so, she said no, and i guess the question that aside, andy, if the white house did know about this, the white house is not talking bit, jen psaki is not talking about it, is the white house embarrassed this got out? >> well, i would think so if it turns out that the white house is somehow responsible for it getting out. i heard your report with shannon before, and she seemed to indicate that what she's hearing is that justice breyer is upset, that this was not the way he wanted it to roll out. obviously the court is very good at keeping secrets and he has a very small staff so the chances are if something leaked out before it was supposed to it's probably on the white house end of it. i'm just -- speculating, i don't have any inside news about it. and the only thing i would say about that, trace, at this point, i think you know, it would be water under the bridge at a certain point, but you know, breyer was on the court for 27 years, i don't agree with him legally or, you know, philosophically, but he did good service to the country, an american patriot, i should be able to go out the way he wanted to choreograph it. >> sandra: and assumption that this was leaked by someone possibly a staffer at the white house, because he said there's no way that breyer or the court would have leaked it. but to your point about water on the bridge, moving on, about a possible replacement, that was a remarkable moment when she did not offer a no when asked about kamala harris. but now the speculation does indeed move on to how this seat would eventually be replaced, andy. where are you with your thinking on this as we can probably put back up the list of possible replacements. >> it just seems to me it makes too much sense, sandra, for it to be judge ketanji brown, or brown jackson, rather, on the d.c. circuit. repeatedly confirmed with some republican support over the last couple of years. credentials are stellar, clerked for justice breyer. i just think it lines up right in a time when what they really need is a confirmation that's as low end controversial a supreme court nomination can be to get somebody on the court of their liking for the beginning of october at a time when the democrats can still get to 51. >> trace: reuters is citing a source familiar says the following, democrats who control the u.s. senate plans to move the upcoming nomination for retirement of stephen breyer on a quick timetable similar for the ones republicans used for judge amy coney barrett. anything you see in the republican's arsenal to do to slow this down, andy? >> no, not really. i think it won't go -- it will be hard for them to slow it down because they got barrett done in, as chad said, in 30 days. so hardly position to go four corners here. it's not going to help them, because they are not going to have the votes to stop it. what they may want to do is make the overall issue of the judiciary and who do you want putting people on the courts, you know, constitutional conservatives or progressives who want to take the constitution and the country in a much different direction. i think that's a good issue for them and has historically been in the midterm elections and leading up to 2024 as well, but i don't see them being able to block this nominee, barring biden doing something a lot crazier than i think he would do. >> and chuck schumer vowing to confirm with all deliberate speed. andy, a couple hours to take in the news, not that long ago when in d.c., big trucks were driving around with billboards campaigning to get justice breyer to retire. mike davis, former law clerk of gorsuch and he was pretty insistent that he believes justice breyer is retiring on his own, made this decision, you know, wholly, his own decision and that he was not pressured to do so. but it was really something, i remember a source at the supreme court at the time saying go to work and see this campaign to have you retire on the side of a truck. did this surprise you, andy, did you see this coming at this point? >> i really thought that maybe at the end of the term. i'm surprised to hear it today, but you know, look, they have a small window to get this done at a time the democrats, do, before, if the republicans take over the senate they have to really negotiate over who the nominee is, and i don't think justice breyer felt pressure because the way our system is, the supreme court justices are insulated from political pressure. but i think he is motivated by the same thing the progressives who wanted him to retire, and he understands they did not want him to retire because they thought he did a bad job, but they want him to retire to get someone like him for the next 30, 40 years. >> sandra: interesting analysis as always. andy, thank you. >> trace: thank you. you heard china come up at the white house briefing as peter doocy grilled jen psaki on the abuses and cover-up as the winter olympics are to begin in beijing. we were going to talk to indiana republican todd young about the awareness of china's bad behavior, but breaking news from the supreme court, senator, i want to get your reaction and what you think the republicans' response and actions will be to this. >> well, thanks for having me, trace. i think we first need to see who the president nominates to this position. republicans have demonstrated in recent years that we support faithful constitutionallists, people who do not regard federal court positions as one in which they can legislate but just apply the laws as written. when you had republicans in control, we demonstrated that that is -- that's our litmus test, if you were, so standing by to see what the democratic president presents to democratic senate. i would also add, this is a reminder to my constituents and other conservatives out there that elections, particularly senate elections where we have to confirm these nominees have very serious consequences and i expect this will fire up a number of our people as we approach november. >> sandra: a quick question raising questions of the nbc coverage of the olympics and china's coverage on it, where do you stand, i believe we are just ten days before the games begin? >> thank you. you know, i'm obviously very excited like so many americans are for our athletes and for the olympic games, but we cannot allow this event to pass and overlooking the gross human rights violations of the chinese communist party. that's why i've launched a social media campaign, #beijing behaving badly that will point out some of these things, whether it's the oppression of uyghur muslims or citizens of hong kong or as recently as this week, the top internet regulator in china decide they are going to clean up the internet and come up with a happier, healthier, safer version. that is orwellean and the athletes need to be aware of it before they turn on the cell phones. >> trace: nbc news is covering the olympics and the question is how much influence does china have on the coverage. the president of the nba olympic production said quoting here, the coverage will provide prospective on china's place in the world, athletes do remain the centerpiece of our coverage. perspective on their place in the world. senator, what does that mean to you? >> i would hope that they provide some hard-hitting coverage. of course, we want to see track and field and boxing and the sorts of things that occur during olympic games, but we also need to know that this is a slave-holder regime, the butchers in baghdad are on a daily basis monitoring, pressing people, disspoiling the earth and cannot normalize them from holding the oly games. >> sandra: senator todd young, thank you. and by the way, trace, sitting in for neil at 4:00, we have congressman mike mccall, from texas, ranking member of the foreign affairs committee, we'll talk to him of other news of the day, and the retirement of justice breyer. >> trace: i don't think i'm going to come back, every time i see you the place catches fire. >> sandra: there you go, lots of news. great to cover it with you. great to have you today. >> trace: >> thank you very much. good afternoon, everybody, i'm martha maccallum. a lot breaking this afternoon and moments ago word from the white house as they say president biden stands by his pledge to nominate a black woman as the next supreme court justice of the united states. justice steven briar reportedly retiring. that would give president biden a chance that every president wants to have. and that would be to fam mate a supreme court justice.

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