Lets begin with lori rothman at new york stock exchange. And closing numbers. Who is being hit the hardest, lori . Reporter financials are having a tough day. Goldman sachs, jpmorgan, caterpillar in there as well as dows whackest performers. Financials as well. Some other names, you can see on the screen some of the smaller ones. Regions be citizens financial, morgan stanley, look at that 5 and 4 . This is the worst day of the markets all year in fact. Tech had a tough day today. Facebook hit alltime high, 131. 99 but it faded off that level. It is down 1 . Its a situation where people here on wall street were so concerned about the market coming so far and so fast it took a break today. I said earlier it is painful but it is healthy. The word on the street looking at some big etfs and qqqs that followed. The dow jones industri avera very, very l volume and that is really a signal that a lot of people are thinking hmmm, maybe were he seeing a top here especially if you consider what the Political Climate is here right now especially with the president s policies. Back to you. Connell a lot of politics, lori thanks. Worst day of the year. Gerri . Gerri Jonathan Hoenig capitalist pig hedge fund, Fox News Contributor joins me now. Jonathan, president threatening Republican House members, i dont know if you heard this, 10 25 a. M. , the market started tanking, he said if you dont pass the Health Care Bill on thursday you will lose your election. One gop lawmaker mark meadows says he is still a no. Is that what you blame for this stock market plummet . Well, no question, gerri, one of many factors. Lori rothman talked about a pause that perhaps refreshes but as you pointed out there is no question this consternation over the Health Care Bill, which way it will go. Will republicans actually pass it is a major factor wearing on markets. We have the retail weakness. We have a black swan. We have potential weak volume so there is a lot of factors here but what is going on capitol hill can not be underestimated in terms of its weighting on the market today. Gerri another thing happening here. We assume obamacare is happening first. That will be repeal and replace. What the president said over an over again. Tough get through that and tax reform. Is that what the market is worried about . There was a honeymoon after the election where people were already counting infrastructure dollars that would spend and counting taxes as you point out would be cut. From a lot of insts perspective looks Like Health Care will be a real big hurdle. We know from the democrats it is enormousurdle. Often times a very messy one, investors who planned on tax cuts first it, caused pause putting new money in the market more than already have after the election. Gerri a lot of investors look at this, a clock resetting to a Time Congress can get absolutely nothing done. They say its the same movie all over again. Do you think some of the reaction is to that . From investors perspective, often Time Congress getting nothing done is good time to be in. Gerri good point. There are big factors here. Look at retail stocks. Jcpenney, urban outfitters, target all at 52week lows. Despite the trump bump, there are structural elements of the economy even beyond health care at least for me would give me some pause putting new money to work in this market. Gerri do you think the fundamentals though, weve seen earnings boost, improvement in that arena, do you think fundamentals go away if we dont get Health Care Bill done right away, dont get tax reform done right away . So much of the fundamentals are predicated on what the new president and administration is going to do. Especially tax and regulatory reform. Weve seen that take place, already specific in the financial sector. That is bullish. As you said if the tax cuts long promised are not enacted i think a lot of investor essentially throw their hands up, what else is on the table . Get me out and get me out fast. Gerri right, right. Health care taking it on the chin and banks and financials and retailers r there other sectors youre concerned about Going Forward here . Without a question i mentioned the retailers and ancillary to that terri, excuse me, ancillary to that, gerri, Real Estate Investment trusts, Simon Property group, which house mall retailers, developers who house the mall retailers i think there is something brewing here with all stocks at 52week lows and still not a lot of fear on the streets. Gerri jonathan. Thanks for that. Well go back to the neil gorsuch confirmmation hearing on capitol hill. Go with frozen brakes on to the interstate, frozen brakes on my long trailer. He is in the cab, he calls in, moves over to the side calls in for repair. Get as dispatcher. Dispatcher says, wait, hang on there. Well wait for you. Couple hours goes by. The heater is not working in his cab. It is 14 below zero. 14 below zero. He calls in and he says, my feet, i cant feel. I cant feel my feet. My torso, beginning not to be able to feel my torso. They say hang on. Hang on, wait for us. Okay. Now he actually falls asleep. And at 1 18 a. M. His cousin, i think cousin calls him an wakes him up. His cousin says he is slurring his speech. And he doesnt make much sense. Mayo clinic in minnesota says that is hypothermia. And, he had fallen asleep. If you fall asleep waiting in 14 below zero weather, you can freeze to death. You can die. He calls him back. And supervisor says, wait. You got to wait. So he has a couple choices here. Wait, or, take the trailer out, with frozen brakes on to the interstate. Now, when those brakes are locked, and youre pulling that load on a trail are with brakes locked, you can go maybe what, 10, 15 miles an hour. What is that like on interstate . Say youre going 75 miles an hour. Someone going 75 miles an hour an hour, come over the hill an slam into that trailer. Also he has hypothermia. He is a little woozy. Probably figures thats not too safe. I dont think you would want to be on the road with him, judge . Senator you would or not, real easy yes or no. Would you want to be on the road with him. With the hitched trailer or unhitched trailer, senator . But either, especially with the hitched trailer with a locked brakes . No, i dont think that is good option. I wouldnt want to be there either. What he does, he unhitches it and goes off in the cab. Then i believe he comes back 15 minutes later. He comes back, after he is warm. So that he can be there when it gets repaired. Right. Okay. Gets fired. He gets fired. And the rest of the judges all go thats ridiculous. He shouldnt, you cant fire a guy for doing that. It was, there were two safety issues here. One, the possibility of freezing to death. Or driving with that rig in a very, very dangerous way. Which would you have chosen . Which would you have done, judge . Senator, i dont know what i would have done in his shoes and i dont blame him for a moment for doing what he did do. I empathize with him entire are. Okay. Just, weve been talking about this case. You havent decided what you would have done . You hadnt thought about for a second what you would have done in this case . I have thought a lot about this case. What would you have done. Im answer you a question. Please answer the questions. Senator, i dont know i wasnt in the mans shoes. You dont know what you would have done. I tell you what i would have done. I would have done exactly what he did. I understand. I think everybody here would have done exactly what he did. And i think that is an easy answer, frankly, i dont know why you had difficulty answering that. Okay. So, you decide to write a thing in dissent. If you read your dissent, you dont say it was like subzero. You say it was cold out. The facts that you describe in your dissent are very minimal, but, heres the, heres the law that, and you go to the language of the law. You talk about that i go to the law. A person may not discharge an employee who refuses to operate a vehicle because the employee has reasonable apprehension of serious injury to the employee or the public because of the vehicles hazard does safety or security condition. Thats the law. And you decided that they had the right to fire him even though the law says you may not discharge an employee who refuses to operate a vehicle because he did operate the vehicle. Is that right . That is how you decided, right . That is the guess gist of it. Senator, how you decided . There are lot of words in the opinion both by my colleagues and my dissent. I happen to agree with you, that is the gist of it. Right. That is what you have said. And, look im not a lawyer but i have been on this committee for about eight years, and i paid some attention. So i know that what youre talking about here is the plain meaning rule. Heres what the plain meaning is. Statute is clear on its face, its meaning is obvious, courts have no business looking beyond the meaning to the statutes purpose. That is what you use, right . That was arced to us by both sides, senator. That is what you used . Yep, both sides argue that the plain meaning support their you use i had it to come to your conclusion. But both sides but the plain meaning rule has an exception. When using the plain meaning rule would create an absurd result courts should depart from the plain meaning. It is absurd to say this company is in its rights to fire him because he made the choice, of possibly dying from freezing to death, or causing other people to die, possibly by driving an unsafe vehicle. Thats aurd. Noi had a career in identifying absurdity. [laughter]. And i know it when i see it. And it makes me, you know, it makes me question your judgment. You stopped by my office a few weeks ago. I asked you about Merrick Garland. I read somewhere, after you accepted the nomination one of the first calls youd was to chief judge garland, and you said to me, i think the world of Merrick Garland. I asked you a couple times, if you are bothered by the way the senate treated Merrick Garland, who you clearly have a great deal of respect for. You said something to the effect of senator, i try to stay away from politics. Now you had been on the bench for 10 years, so that sounded fair to me are and i decided to leave well enough alone. I moved on to another topic but your relationship with politics came up again yesterday. My good colleague senator lee, lamented the extent to which the confirmation process has become political and suggested that you and other nominees are not equipped to navigate that process because confirmmation politics are in his words, quote, still a little foreign to you. Or still quite unfamiliar to you turns out that is not really entirely accurate. After you were nominated this committee made a formal request for documents relating to your previous nomination and to your time at the department of justice. This is standard procedure. Those documents include emails back and forth between former Bush Administration officials and you in 2004, back before you joined that administration and the neil gorsuch, in those emails seems to be very, very familiar with politics. The neil gorsuch in those emails was looking for a job. Heres a message you sent to matt schlapp, president bushs political director. This was in november of 2004, after president bush won reelection. Quote, i spent time in ohio working on election, this is you. What a magnificent result for the country. For me personally the experience was invigorating and a great deal of fun. Now that doesnt like someone who steers clear of politics to me. You went on to right, quote, while i have spent considerable time trying to help the cause on volunteer basis in various roles i included that i would really like to be a fulltime member of the team. You attach your resume, which describes in detail your work in support of political campaigns and candidates. Basically you worked on republican political campaigns since 1976. You worked for reagan, bush one, bush two. You were cited for distinguished service to the United States senate for work in support of president bushs judicial nominees. By Senate Republican conference. Which suggests that even the police call aspects of confirming judicial nominees is something that you are not unfamiliar with. Now, when we met earlier i asked you what you thought of the way Senate Republicans treated Merrick Garland. Rather than answer the question, you replied i try to avoid politics. Here you are in 2004, pledging your allegiance to the cause and shopping around a reme touting your wk on political campaigns dating back to 1976. These messages establish that for a good deal of your prior career you didnt avoid politics quite the contrary. You were very politicallyactive in light of that i would like to ask my question again. Do you think Merrick Garland was treated fairly by the United States senate . Senator, couple of things and in response to that if i might. Going back, the doctrinal argument was never presented to court. Usually applies in cases where there is scribners error, not when we disagree with the policy of the statute. I appreciate the opportunity to respond there. When there is a scribner there . Scribners error. Error, sorry. Not when we just disagree with the policy. With respect to the well, if i read my statutory interpretation, from, lets see, this is from the Notre Dame Law SchoolNational Institute for trial advocacy, this is a pretty wellknown exception to the plain meaning rule. I think you can apply it without it i mean, dont you think it is absurd that this man was put, given that choice and then fired for it . Dont you think that was absurd. Senator, my heart goes out to him. Never mind. My heart goes out to him. That is not my job how do you think Merrick Garland was treated . The. Senator, since i became a judge 10 years ago i have a cannon of ethics preclude me getting involved in any way, shape or form in politics. The reason why judges dont clap at the state of the union and why i cant even attend a political caucus in my home state to register a vote in the equivalent of a primary. But i dont think this is a, you have to state your political views. That is not what this is about, how a Supreme Court justice who is nominated by the president of the United States, this is like in the constitution. I think youre allowed to talk about what happened to the last guy who was nominated in your position. Youre allowed to Say Something, without getting involved in politics. You can comment on this. I appreciate the invitation. The other said has their views of it. Your side has your views of it. That by definition is politics. Okay. Senator, judges have to stay outside of politics. I think the world of Merrick Garland. I think he is an outstanding judge. I understand. I told you what i think. I understand. Thank you, thank you. I dont mean to cut you off, but you know we have time. I think it is really important for us to understand how your political work and political views might inform the views of the law and i know this, i dont hold it against you that you did political work. A lot of people did. 1976, i was walking with the district with my mom when she ran for statehouse. Looking again at the email five or so months after your message to mr. Schlapp, you emailed ken mehlman. Mr. Mehlman was your law schoolroom mate. At time you emailed him. He was chairman of the Republican National committee. You just interviewed for a job at the department of justice. You wanted him to put in a good word so he did. Mr. Mehlman emailed the white house and he wrote, neil is a wonderful guy. Was my law schoolroom mate. Did 72hour effort in ohio for us and was part of lawyers for bush. Mr. He mehlman wrote, quote, he is a true loyalist. Now, again, being politically active or a loyal republican are not disqualifying characteristics for Supreme Court nominee, not in my book anyway. Lets look back at 2004 election. Look at ohio where you volunteered. Ohio was one of 11 states in 2004 republicans working to support the campaign worked to put antigay marriage amendments on ballot. These constitutional ballots all passed. All 11 of them. They vary state by state but they define marriage between a man and woman. That sent a clear message to gay couples that their marriages were not equal in the eyes of the law. Lawyers for bushcheney. And as lawyer and student ever constitution how did you feel about the right to marry put to a popular vote . Senator, i dont recall any involvement in that issue during that campaign. I remember going to ohio. Were you aware of that issue at all . Certainly i was aware of it. How did you feel about it . Senator, my personal views, any revelation my personal views about this matter would indicate how i might rule as a judge, mistakenly, it might. I have to be concerned about that. These discriminatory amendments were part of deliberate effort to drive up the turnout, and we know that because, we know thabecause yourriend, ken mehlman said so, mr. Mehlman was inteiewed by the atlantic in 2010 and said that the Bush Campaign had quote, working with the republicans to make sure antigay initiatives and referenda would appear on november ballots in 2004 and 2006 to help republicans. To be clear there is nothing to suggest you were involved in crafting that strategy but at the time the tactic received a lot of attention including in ohio where you worked on the campaign. It was profound impact on peoples lives. But, a lot has changed since 2004. Mr. Mehlman, announced publicly that he is gay for one. He also voiced regret about what happened. He apologized, he said, at a personal level i wish i had spoken out against the effort. As i have been involved in the fight for Marriage Equality, one of the things i have learned is how many people were harmed by the campaigns which i was involved. I apologize