our thoughts and prayers by the way tonight are with the entire ginsberg family, her colleagues at the supreme court and everybody that knew and loved justice ginsberg. sources on the ground have said that the president has not been informed of her death prior to going on stage. interestingly, why they did have a deep philosophical divide, justice ginsberg was known to have a great friendship with antonin scalia. they were close friends. by the way, my own father died from pancreatic cancer in a short period of time. she battled this cancer with incredible and inspiring courage beyond heroic. she will be missed by many. with just 46 days until the presidential election, we're about to experience a political hurricane, the likes of which we probably never have seen. although she spokes softly, justice ginsberg was a giant on the supreme court. her legacy will live on. breaking just moments ago, senate majority leader mitch mcconnell mourned the loss of justice ginsberg and announced "president trump's supreme court nominee will receive a vote on the floor of the united states senate." we have john roberts from the white house. john? >> sean, it is interesting to note that the president was about ten minutes in the speech there in bemidji, minnesota up there in the iron range when news of ruth bader ginsberg death came. so the president does probably not yet know what has happened. just moments ago, just as part of his standard speech, the president started talking about the issue of the supreme court in terms of the election. saying that he will nominate justices and judges that interpret the constitution as written. says the supreme court is so important the next president will get maybe up to four justices that will be appointed for a long, long time. so the president now has a decision to make. does he as president obama did in 2016 after antonin scalia's passing nominate someone to succeed ruth bader ginsberg or does he hold back? the betting is that the problem will probably make a nomination sometime in the not too distant future because obviously tonight is a night to pay tribute to the legacy of ruth bader ginsberg a giant on the supreme court. but then will begin the process of replacing her. as you pointed out at the top of this, sean, that will be a battle royale between now and election day. ruth bader ginsberg said that it was her fondest wish that if she were to pass or if she were to leave the court, that she not be replaced until a new president is installed. so the president has this decision to make. i would be -- if i were a betting man, sean, i'd bet the decision will be make to make a nomination. mitch mcconnell, as you pointed out here has said that will bring that nominee to the floor. the clock will be running. do you get it done before the election or do you get it done before the end of the year, do you get it done before the end of the term depending on how the election goes. don't forget the senate will turn over at the beginning of january. so there's a finite period of time to get the nominee through should the president decide to make a nomination. we have not heard anything yet from the white house. i'm told we won't hear anything until the president is on hi ways back. the closest we have is kellyanne conway that recently left the white house. she said that justice ginsberg worked with a passion and conviction and offered hope to other cancer survivors. prayers to her loved ones. may she rest in peace. ruth bader ginsberg may rest in peace but america won't be peaceful, sean. this will be on top of everything else that we've got going in this election of a battle through to november 3. probably likely also force joe biden to come out with a list of nominees as well. that's something that he's been resisting. sean? >> sean: i want to go back. my sources on the ground confirmed that his speech had all right started about ten minutes in. other news outlets reported the opposite. we're right in our reporting, right? >> i talked to somebody on the ground there a couple minutes before i came out here. i was told the speech was underway when the news came down. i talked to somebody from the white house immediately after i heard the news myself, as soon as the bulletin went out here at fox news. the president was speaking when i spoke with that person. so it's likely that he does not know. you would think, sean, if he knew, he would have said something. >> sean: i was told specifically he did not know. he already started his speech before the news had passed. stay with us throughout the hour, john roberts. we'll be going back to you. thank you. joining us now with more on how tonight's sad news is being received on capitol hill, chad pergram is with us. all things hitchhikers guide to the supreme court right now. chad? >> hey, sean. here's what we have to look at here. mitch mcconnell, the senate majority leader, came out here within a matter of a few minutes after it was announced that justice ginsberg had died. this is similar to what he did in 2016 after justice antonin scalia passed away. mitch mcconnell unilaterally in 2016 announced they would not consider merrick garland or whoever president obama was putting forth. what he announced this evening, he says "president trump's nominee will receive a vote on the floor of the united states senate." there's metrics here that we need to pay attention to. the average supreme court nominees once they're nominated until they get to hearing is about 40 days, 40 to 45 days. it's 67 days from their nomination until they are confirmed. other metrics here with brett kavanaugh, 57 days from his nomination till his hearing and 89 to confirmation. so you can see we're on the with uswhether or not they can properly vet the supreme court nominee, get a confirmation hearing through and put it on the floor. probably putting it on the floor before the election is impossibility based on the metric used for brett kavanaugh and neil gorsuch. you have lindsey graham, who has an increasingly competitive senate race in south carolina. he will be asked to shepherd through this nominee. kamala harris, democratic vice presidential nominee, she's on the judiciary committee as well. as i say, it's always about the math on capitol hill lisa murkowski has indicated we should wait till january. a new president, president biden or president trump to consider that nominee. and you wonder how the other republican senators in battleground states, how they will shape up. will they be on board here? mitch mcconnell needs 51 votes to overcome a filibuster. this is the precedent change that he initiated with neil gorsuch to confirm him in 2017. and then also at least 51 votes to confirm the nominee. so look at susan collins in maine, tom tillis in north carolina, joni ernst in iowa, cory gardner in colorado. probably a couple of others and mitch mcconnell. don't forget he's here, too. they need 51 votes. so you can lose two. right now there's 53 republicans in the senate. you can get to 51. if it's a 50/50 vote, the vice president has broken 13 ties. they have never had a vice president breaking the tie. mike pence confirmed the first executive nomination with betsy devos in 2017. as john roberts said, we're in for a roler costar. i want the direct everybody back to the time line. it would be hard to put the nominee on the floor to have a vote and the other senators, do they agree with mitch mcconnell that this should be pushed through as quickly as he is suggesting? >> sean: let's go to minnesota where the president is just wrapping up his speech. as our sources told us, the president did not -- has not been notified yet of what has happened tonight. the breaking news that supreme court justice ruth bader ginsberg had died. he's wrapping up his speech before a capacity crowd in minnesota. about 25,000 people i'm told on the ground there. john roberts also confirming with his sources with the trump team on the ground in minnesota that he was not made aware of the death before he was about ten minutes in the speech when the news crossed the wires about it. we'll keep the images up. she covered the supreme court for fox for many, many years. very friendly with and knows all of the justices. shannon bream is with us. shannon? >> yeah, sean. her colleagues are grieving tonight because what they know better than anyone else is that this is a family and a very unique position and nobody else could possibly understand unless they have served on the bench. we talked about the unorthodox friendship that she had with justice scalia. they didn't see the constitution and the way to interpret the same way but they were very close. the families socialized together. they both loved opera and cooking together. there were great friendships there. a great example that our country could use right now. she was a trail blazer. we talked about the fact when she came out of law school, one of nine women in her harvard law school class, she couldn't find a job. she had people tell you i can't hire you because you're a woman. she was married, had two children. she has four grandchildren. she was always devoted to her family. they were her number 1 priority. the court was clearly her life mission, her life's work. i've told the story about the day after her husband died. she was there in court. i showed up to court and saw her on the bench. i was shocked that she was so devoted to her work. she always said the numerous battles with cancer and other physical challenges that she would keep serving as long as she could. there were people, you'll remember, during the last election on the left that asked her to step down before the possibility of a republican president was elected. she said no to her critics. i have a position to do, work to do. she intimated that someone like her couldn't be nominated. she's right about that. so she left a trail behind her of showing working women had to be strong voices in the legal field and also have a family, to have friendships with people that you might disagree with. you know, just a few weeks ago, she's always been transparent about her house. she put out a statement saying she had a recurrence of her cancer but talking about the different treatments that she tried and the chemo was working and she was positive moving into the summer and the fall term. we know she officiated a wedding in the last few weeks. so we know that she had been feeling good and doing better. so this news does come as a shock tonight. we have to think about what comes next. as someone that has covered the court for years, i think about the fact that there's a number of election related disputes bubbling up for the supreme court. if we had another years like bush v. gore, there would be eight justices. there's so many things to think about tonight. most importantly, the legacy of this woman who has made history in so many ways and is now gone at the age of 87. sean? >> sean: it's interesting. i mentioned earlier, my dad had pancreatic cancer. took him quickly. a tough cancer. she was heroic in her fight about it. she talked about her mom who instilled in her education and dignity. taught me to be someone that holds fast to convictions. self-respect a good teacher. doesn't snap back in anger. recrimination dos her no good. her mom died of cancer the day before her high school graduation in 1948. how sad that is. tell us, give us a little insight. the friendship that everybody talks so often about justice ginsberg and somebody that i thought was an icon on the court, justin scalia. >> yeah, he talked about there were things that were more important thanslaying people to your vote on the court. he valued their friendship. it's hard to think of two that were more different than the two of them, but they were able to look past their positions and bond -- >> sean: hold on, shannon. let's listen to the president. he just -- re-rack that in new york. let's go back to -- shannon was -- we'll find out what the president said. shannon, go back to the story. because you know, i understand justice thomas, same thing, a great respect and friendship with justice thomas and justice scalia. >> yeah, the families spent time together, ate meals together, fellowshiped together. so they know sort of the secret society that the nine on the bench or those that have served before will really understand the pressures on their families, spouses and children. just what they all faced. i remember in particular one holiday party, which they were calling a christmas party at that point. there is a point of which they're in the court and one of the great halls, a piano and somebody leads carols. usually done by the chief. i remember this particular year that justin scalia was really very animated and he was sort of assigning people parts and singing at the top of his voice. i remember seeing her with this amused face and that's him. they were close. they seem to really stick up for each other, to have each other's backs. to genuinely enjoy each other's company. something that they wanted to do, to spend time together and support each other personally. >> sean: shannon bream, i know you'll cover this at 11:00 eastern. joining us with more reaction, he's the chief counsel, jay sekulow. jay? >> it's quite a day. you know, i thought back over the fact that i had the privilege and honor of presenting oral arguments before justice ginsberg since the day she was worn in and confirmed and became a justice 27 years ago. so i've had a long history with justice ginsberg. you know, all i can say is first of all, thoughts and prayers for her family. let me say this about justice ginsberg. whether you agreed with the legal position or not, she was a very, very smart brilliant lawyer, advocate and justice. even when she disagreed with me, which was frequent, but not always, i always remembered fondly that my mother went to the same high school as justice ginsberg, james madison in new york. while i made oral arguments in front of the supreme court with justice ginsberg, reminded me of the arguments i had with my mother growing up, a degreessive but not hostile. this is a day to reflect on the good things. that is that this is a woman that made some real history, she also -- whether you agreed with her legal position or disagreed with it, you knew where she stood. as someone that argued in front of her, you had to be very, very on your game when it was time for justice ginsberg to ask those questions. she always got right to the heart of it. as recently as may when we were on a series of three cases. so i want to think about that right this moment. but again, it's a historic moment for the country, a historic moment for really the united states senate now, of course the president and i think, sean, one of the things we have to remember is that the constitution lays out the frame work of how this works. president nominates with the advice of the united states senate. that's how it works. the constitution doesn't change when you're five months before, two weeks or after an election. it's up to the senate on the advice and consent portion. that is the debate that will take place. we have to realize this is also a monumental appointment if the president decides to go in that direction. this is not simply a liberal justice for a liberal justice for a conservative justice. both sides know that. i think that will make this all the more significant and of course it is before an election. so i suspect it will motivate both sides in that sense. >> sean: how many times total did you argue before the court with justice ginsberg and tell me about the type of questions she would throw at you? >> i think 12 if my memory is right. 12 or 13 times. i'll never forget one in particular. it was part of the campaign finance case. i was representing a grouped of minors that were prohibited in participating in political campaigns. we won it unanimously. she ruled in our favor. what is so interesting about that, when i knew she was going to ask the question regarding suffrage because women did not have the right to vote until a constitutional amendment. we had minors. so i became an expert in the suffrage movement. there was not much i didn't know about that. sure enough, i utilized that. i think it obviously was effective enough that she agreed with the other nine justices on our legal position. but there were other times that she was dead set against me especially on religion cases. you knew her question, not that you were going to sway her vote or necessarily get her vote, but you had to give an honest answer with integrity to a leigh a position that even she might disagree with it that she could respect. that was always -- and my colleagues that have done this -- >> sean: jay? i'll get back to you in a second. the president was asked as he was boarding air force one as i rightly reported and john roberts rightly reported at the top of the hour tonight, the president was told just before getting back on air force one that -- he said she just died while -- i didn't know that. telling me now for the first time. she led an amazing life and what else can you say about such an amazing woman. we'll turn that tape around in just a minute. i also have the statement, jay, from senate majority leader mitch mcconnell that the senate and the nation mourn the sudden passing of justice ruth bader ginsberg and the conclusion of her extraordinary american life. justice ginsberg overcame one personal challenge and professional barrier after another. she climbed from a modest brooklyn upbringing to a seat on our nation's highest court and into the pages of american history. justice ginsberg was thoroughly dedicated to all the legal profession and to her 27 years of service on the u.s. supreme court. her intelligence and determination earned her respect and admiration throughout the legal world and indeed throughout the entire nation, which now grieves alongside with her family, friends and colleagues. i'd add this. apparently her family was around her at the time of her death. and then senator mcconnell said in the last mid-term election, americans elected a republican senate. we kept our promise since 1880s. no senate has confirmed an opposite party president's supreme court nominee in a presidential election year. by contrast, americans re-elected our majority in 2016 and expanded it in 2018 because we pledged to work with president trump in support his agenda, particularly his outstanding appointments to the federal judiciary. once again, we will keep our promise and the president's nominee will receive a vote on the floor of the united states senate. with this being the election year, obviously i would assume tonight people mourning the death of justice ginsberg by probably tuesday of next week, the latest, this battle will begin, jay sekulow. >> yeah, normally, you know, within 24 hours, but this is a didn't year. so probably will be monday. i think what mitch mcconnell said is actually where the battle will be fought. merrick garland was nominated by president obama. never made it to the senate floor. why? that's what mitch mcconnell was talking about. that will be an issue for the senate to decide. whether or not there have votes to have a nominee. the president has a constitutional authority or not. nobody questions that. it's whether the senate will move forward. let me say this. i don't think it goes -- should not go without mentioning that justice ginsberg that fought valiantly, i don't think anybody can deny that. she asked me questions on may 12 from a hospital to some of my colleagues. she was out of the hospital by the time she got to my case. so she was fighting until the end here. that's the take away of this historic life. the battle will be pitched on monday. i don't think there's a doubt about it, this is one of these moments in u.s. history where you'll be 5 1/2 weeks out from an election, the president still serves until the ex-president is sworn in. if he wins re-election, it's his nominee. if he's confirmed before the election, he's confirmed as a justice. there's no rolling that back. that will be the job monday. you'll hear a lot about that. obviously they're going to draw this, what mitch mcconnell is talking about, this parallel to merrick garland and what happened here. difference is, you didn't have the same party controlling the presidency and the senate. that is of course a significant issue. >> sean: jay, just as a side note, a dear friend for so long, my own personal attorney, how many times have you argued before the court? >> 13 times. i was calculating. all but one she was on. maybe two. >> sean: how many cases were you involved? over 20, right? >> yeah, about 23. a lot of cases get -- >> sean: how many did you win, jay? >> about 90%. justice ginsberg ruled with me 60% of the time. if it was baseball, i'd be badding .600. she was a tough, tough justice on questioning. she was just -- by the way, there's no doubt why justice scalia were so close. that write similar personalities. both asked brilliant questions and not -- they didn't want -- there was no answer in front of justice ginsberg or justice scalia that was this -- i don't know. it was yes or no and explain yourself. there was never i don't know. that is one thing that you learned practicing in front of them. this is going to be a big battle come monday. right now you honor the memory. monday is when the attention turns to the nominee and if there's a nominee and how that moves forward and that's the president's determination under the constitution. >> sean: we asked shannon bream about this relationship. it was such a judicial philosophical divide bust justice scalia and justice thomas had court yeah relationships with justice ginsberg. idealogical opposites in terms of the court. by the way, did you say that she ruled with you 40% of the time? a good batting average. >> it was -- i don't think it ended up 67%. somewhere along the way, 67%. i think -- >> i agree. >> maybe less than that. >> sean: those that never heard oral arguments and always the question of whether or not we should have cameras in the court, just listening is phenomenal. the way the justices have the unique style, i mean, justice scalia, you get two words out, he's throwing questions at you. very quiet. takes in. >> because of covid, we had the argue the cases by telephone. i had a podium. i stood up, wore a suit. we called the case and we presented the argument. they did it in a different way. two minutes uninterrupted. i don't think i went 37 seconds under interrupted before covid. each justice could ask a couple of questions. let me tell you this story. they basically got two questions each. justice ginsberg asked me one. i answered it. she asked me two. i answered it. she was starting another question. the chief justice came in, going to the next justice. she talked over them. you're really not supposed to respond unless the chief justice gives you permission. i answered the question anyways. i figured she was in a hospital before answering questions, this justice deserves that honor and respect. i was going to answer a question. she might not have liked my answer and evidently not because she ruled against me. but i answered with honesty. she respected that even when she disagreed. >> sean: amazing. it's a very small group of people that ever make it to that top position. checks and balances, co-equal branches of government. very different judicial philosophies. jay sekulow, thanks for being with us. >> thank you. >> sean: here we reaction from the trump administration, kayleigh mcenany . kayleigh, i had contact with people on the ground in minnesota. they were clear, also confirmed with john roberts, hefls not -- he was not aware of it. the president was told about it as he was getting on air force one and the conversation went like this. he said, he heard one of the reporters, she just died. wow. i didn't know that. telling me that for the first time. what else can you say about an amazing woman. >> he was saddened to hear the news. i've heard president trump in private quarters saying he admired her tenacity. how can you not? she had a history of overcoming. you heard shannon talk about that. she lost her older sister, lost her mom before graduating high school. went on to go to harvard law where she began her legal studies. nine women out of 500. her husband got cancer in law school. she was raising a 3-year-old daughter, taking care of her husband, on the law review and worked to the top. she was a trail blazer for women. i had the same privilege of attending the same university. tonight we honor her legacy. this is the white house. we lowered the flag to half staff. the president said how much he admired her career. >> sean: i didn't know your story until you gave an incredible speech at the rnc convention. a very difficult decision. because of dna and genetics, you determined the odds that you would get breast cancer at 84%, which had to be frightening. you know,so many tough decisions. you explained your decision and how you made it and why you wendt through it. what your mom had gone through. i learned about justice ginsberg, which was incredible. she was inspired by her own mom and her mother had died from cancer literally just the day before she graduated high school. >> that's right. her mother died of cancer, her husband, marty, plagued by cancer. overcame it. she was 9 out of 500 in her class. we're praying for her, holding her family close to our hearts at this time. if you could sum up this woman, she was an overcomer. that's what she was. she will have a place in american history. >> sean: she battled by the way bravely two forms of cancer. my father passed away from pancreatic cancer. underwent a pulmonary heart operation that was malignant apparently at one point. and in july, 2019, missed oral arguments for the first time since she joined the court appointed by bill clinton in 1993. apparently wanted to be an opera singer. born in brooklyn. 1933. at the time she was 60 years old. known for her soft-spoken quiet manner. kayleigh mcenany , thank you for sharing your personal story, too. appreciate you being with us. >> thank you, sean. >> sean: we go now to texas senator ted cruz with us. senator, thank you for joining us late notice on a friday night. >> sean, good to be with you tonight. we and the entire nation mourn the passing of a historic justice. she was only the second woman to serve on the court. she served 27 years before she was on the court. she's a court of appeals judge. before that, a legendary advocate. she was one of the most accomplished supreme court advocates to have ever lived. i argued before her nine times. she was brilliant. she was a very careful lawyer and she was a trail blazer. she leaves a large legacy. heidi and i are lifting up her family in prayer as they mourn her loss. but she led an extraordinary life. >> sean: senator, we're mourning her life and legacy tonight. there will be a big political fight monday or tuesday probably. at least by tuesday of next week. i know how washington works. we all do. it raises -- i mentioned earlier, mitch mcconnell's segment -- hang on. okay. hang on, senator. the president was asked very briefly, my sources and john roberts confirming as well had told me the president was not aware of the justice's death prior to going on stage in minnesota for his rally tonight. but as he was walking back to air force one as he makes his way back to washington, he was informed by the media that we have that exchange. >> ruth bader ginsberg has passed away. >> just now? >> sean: the president was surprised he didn't know before he went up. he said wow, i didn't know that. i'm just hearing this now for the first time. she led an amazing life. what else can you say about an amazing woman? there's this cordiality -- these cordial relationships that emerge on the court. i'd say you and i are in sync on the judicial philosophy. i believe in the constitution. i want to say i'm an originalist. that would be an accurate statement as are you, justice thomas and alito and was justice scalia. then you have this other judicial philosophy, one of activism from the court. very, very different. it is a big campaign issue. your thoughts on what is the right course moving forward? >> i think the court, we're one vote away from losing our fundamental constitutional liberties. i believe the president should next week nominate a successor to the court. i think it is critical that the senate takes up and confirms that successor before election day. there's going to be enormous pressure from the media, enormous pressure from democrats to delay filling this vacancy. but this election, this nomination is why donald trump was elected. this confirmation is why the voters voted for a republican majority in the senate. i'll tell you one reason in particular, sean, why it's important that not only does the nomination happen next woke and the confirmation before election day, joe biden and the democrats have made it clear that they intend to challenge this election, fight the legitimacy of the election. hillary clinton has told joe biden under no circumstances should you concede. you should challenge this election and we cannot have election day come and go with a 4-4 court. a 4-4 court equally divided cannot decide anything. and i think we risk a constitutional crisis if we do not have a nine justice supreme court particularly when there's such a risk of a contested litigation and contested election. 20 years ago, i was part of the legal team that litigated bush v. gore and went to the supreme court. 37 days the country did not know who the president was going to be. if we had a 4-4 court, could have dragged on for weeks and months. so we have a responsibility a responsibility to do our job. the president should nominate a principaled constitutionalist with a proven record and the senate is going to take a lot of work to get it done before election day but we should do our job and protect the country from the constitutional crisis that could result otherwise. >> sean: well-argued as usual. so yes argued before the supreme court how many times, senator? >> nine times. >> sean: how much times did you win? >> depends on how you count it. five times. >> sean: one of the most interesting stories, alan dershowitz said, ted cruz was one of my best students ever of all time. obviously you guys have political disagreements. senator, thank you for your time on this breaking news friday night. we appreciate you being with us. justice ginsberg's death creates an opening on the court. have to remind everyone what senator mitch mcconnell said about a potential vacancy in february. >> if a supreme court seat were to open up before the november election, would you hold that seat open like you did for merrick garland to let voters decide which president call candidate should pick the next justice. >> let me remind you what i said in 2016. i said you'd have to go back to the 1880s the last time a vacancy on the supreme court occurring during a presidential election year was confirmed by a senate of a different party than the president. that was the situation in 2016. that would not be the situation in 2020. i'm not aware of any vacancy. but if you're asking me a hypothetical about whether this republican senate would confirm a member of the supreme court to a vacancy that created this year -- >> before november. >> yeah, we would fill it. >> sean: as we previously reported, senator mcconnell leading a statement praising justice ginsberg saying president trump's nominee will receive a vote on the united states senate. here on the phone is chief political anchor, bret baier himself. a good question at the time. now quite relevant. i heard you earlier, brett and your comments were dead on. this is going to play a major role in this election 46 days from now. >> it will, sean. let me say, i never argued before the supreme court. >> sean: we still like having you on. a big title at fox news and a successful show, "special report." >> i did actually just to say word about justice ginsberg, i saw her around time. one event i went up the justice scalia. said how does this work? you're diametrically opposed on the court? he said you know, bret, she's a lot of fun. ginsberg was doing an interview with scalia. she explained why he is saw him asleep during the state of the union. she said she was going to stay away from the wine. the dinner came and she said it was so delicious, it needed wine to accompany it. scalia pipes up and says, that's the first intelligent thing you've done. so they had the relationship where they went back and forth at each other. >> sean: sounds like antagonistic colleagues. like at fox. >> there you go. little tweaks here and there. it was fun. we need more of that in this country. this will be a huge, huge issue. you know this. could get ugly in this battle to, you know -- mcconnell saying he's moving forward. there's going to be tough, tough fights here. democrats are already quoting what was quoted justice ginsberg saying on her death bed. she wished that they -- >> sean: let's go to joe biden. excuse me for interrupting. he's about to make a statement. >> she's not only a giant in the legal profession but a beloved figure. my heart goes out to all of those that cared for her and care about her. she practiced the highest american ideals as a justice. quality and justice under the law. ruth bader ginsberg stood for all of us. as i said, she was a beloved figure. as a young attorney, you know the story, she persisted overcoming a lot of obstacles for a woman who practiced law in those days. as well as she continued until she moved herself in a position where she could end up changing the law of the land, leading the effort to provide equality for women and every field. she led in the advance of equal rights for women. it's hard to believe that as my honor to preside over her confirmation hearing. i got to meet her at the time. she and her ascension to the supreme court. the decades since, she's been absolutely consistent and reliable in her voice for freedom and opportunity for everyone. you know, she never failed. she was fierce, unflinching in her pursuit of civil and legal rights of -- civil rights of everyone. her opinions and her dissent will continue to shape the basis for law for generations. you know, tonight and in the coming days, we should focus on the loss of the justice and her enduring legacy. but there is no doubt, let me be clear, that the voters should pick the president and the president should pick the justice for the senate to consider. this was the position of republican senate took in 2016 when there were almost ten months to go before the election. that's the position the united states senate must take today. and the election is only 46 days off. i think the fastest justice ever confirmed was 47 days. and the average is closer to 70 days. so we should do with this full consideration. that is my hope and expectation what will happen. thank you all and i'm sorry we had to learn it on a plane ride. thank you very much. >> sean: joe biden just getting off a plane. making a case -- going back to brett braier. now focusing on the enduring legacy of ruth bader ginsberg. no doubt the president picks the justice and the people pick the president. saying this election should be about this issue. but the voters actually have picked the president and he's called president donald trump. contradicts obviously with what mitch mcconnell told you back when and also where mitch mcconnell when he mentioned it in his statement tonight, the senate will have a confirmation hearing after the mourning of the loss of justice ginsberg. >> this will be the battle. now you're seeing the quotes being pulled up from 2016 and the republican senators saying the american people need a voice. mcconnell saying that's because the party in the white house and the party controlling the senate were two different parties. that's the distinguishing factor that he's making. i'm already seeing a lot of conservative use the argument that senator cruz used moments ago, that the court must be al its full compliment for any election disputes like bush v gore. it's very possible this time if we look at the different -- >> sean: it was dimpled, swinging and dented and it was perforated and -- you know. i thought ted cruz made a very good point on that. you know, we've been reading an awful lot. hillary clinton's comments were somewhat chilling to everybody when she said under no circumstances should joe biden concede the election of donald trump. that was frightening. at least from my perspective. so if you have 4-4 on a supreme court and you found yourself in a position like 2000, both of us covered that night after night after night that would then become mission impossible. >> what will happen politically, focused on the life of ruth bader ginsberg, there's a lot of pressure on moderate democrats like susan collins of maine who is up for -- >> sean: republicans, yeah. >> and she will feel a lot of pressure and has said if it got to october, it might be a little too close for her. look for those moderates like murkowski and collins to really see -- read between the tea leaves about what they're going to do. >> sean: all right. bret baier, host "special report." joining us now outside the supreme court, kevin corke. i can see a crowd gathering, kevin. >> you're right, sean. we've been here two hours now. there's more than 1,000 people here. what really strikes me, this may be the first time in my life where's been surrounded by 1,000 people and not a word. we heard an occasion where the folks at the top of the stairs will break into applause. obviously people speaking about the life and legacy of the late justice ginsberg. by and large, people considering not just her great legacy and her impact on the court but fair to say, sean, that they're wondering what her passing will mean for the future of the court and for the country. i'm going to step over here just a second. kerry, this is something else that struck me. we've seen flowers and candles. that aroma, the sweet aroma has been lofting down the stairs here. again, this is a moment unlike any other. we've seen other justices pass, r.b.g., perhaps unique among them in my lifetime. so it sets up for what should be an interesting -- putting it mildly -- 46 days, sean. >> sean: thanks for reporting live so quickly. we go back to our colleague at the white house, john roberts. we have confirmed rightly so, other networks got it wrong, the president was out there ten minutes before the news broke and he was about to aboard air force one, she was an amazing woman and surprised to hear the news. >> the one point that we should make, too. one of my colleagues under the wing of air force one as the president began to walk away said, are you going to put a nominee forward? the president ignored the question and kept going. this is clearly a night and will be a weekend as well to honor the legacy of one of the true giants of the juris prudence here in the united states. not just behind the scenes but public people are laying down positions. you have to wonder what the conversation is aboard air force one right now on the way back from minnesota. obviously involved in discussions about the way forward here. mitch mcconnell has said, he will put the nominee on the floor. if you were the president of the united states and you were facing the possibility of what ted cruz was laying out for you, why would you not put forward a nominee? if you do, there's going to be a political conflict that consumes this country that adds on top of the problems we've been dealing with here since the beginning of this year. you heard ted cruz say the president should put up a nominee next week. dianne feinstein said under no circumstances should a nominee be put forward. joe biden said voters should pick the president and the president should pick the nominee. then it gets down to the political action committees as well, which are funding a lot of the politics on the periphery. the center for american progress saying that we must honor ruth bader ginsberg -- >> sean: john podesta's group. as if we're shocked by that. >> i'm just saying, sean, these are the arguments we'll be hearing. from democracy for america, the progressive group saying tomorrow and for every day until january 20th, we're committed to fighting like hell to ensure that senate republicans don't destroy justice ruth bader ginsberg's legacy. these are the arguments we'll be hearing. spinal tap said, my amplifier goes to 11, which is better than 11. all of these voices will be on 11 between now and november 3 making the case why and why the president should not put forward a nominee for justice ruth bader ginsberg's replacement. if he does make that nominee, all bets are off. this is -- if we haven't already seen vitreal across america since the 1800s when people beat each other in canes in congress, we'll see something that we haven't seen for decades. >> sean: thanks, john, for staying up late with us. joining us with more, fox news contributor, jason chaffetz, steve scalise. congressman, we have heard so much chatter that is unsettling. i mentioned hillary clinton. that's one part of the equation. under no circumstances should joe biden ever concede the race. reading about these armies of attorneys that have been now sent to every swing state in the country. beyond alarming which creates a set of circumstances that would be beyond chilling if we don't have a nine-member supreme court at some time, i don't want to get to deep into that tonight because it's a night to honor the life and legacy of ruth bader ginsberg. but there are -- i thought ted cruz articulately pointed out that that could be a serious concern. >> sean, first, good to be with you. my thoughts and prayers of what the family ruth bader ginsberg, everybody has made the poignant comments about her life and her legacy. she left a dramatic impact on the court. she played a powerful role on the court. we know that. she was also a tough lady. very tough. battling cancer, multiple times. not just recently with pancreatic cancer. multiple bouts. she could have chemo and still go back to the court to serving a a jurist. so we have a lot of tribute to pay to her as you mentioned. and then unfortunately, this has been a year of so much chaos from what we've seen with covid of shut down of our country, our economy, deaths from this disease across the globe to civil unrest to riots in the streets to now with what you're seeing in so many states, lawsuits being filled with people with their own agenda, trying to get judges to change voting laws that have been debated for years which could create chaos in a number of swing states. then yes, you don't want the backdrop of a 4-4 court with an uncertain election at the same time. there's a lot on our plate. we first put our prayers with ruth bader ginsberg and her family. then obviously the president made i thought some warm remarks as well. but then of course, ultimately he will have an obligation under article 2 and section 2 of the constitution does require that he fill vacancies on the court. that is something that every president has done and this president won't be any different. >> sean: jason, mentioned her mom. first in her class at cornell undergrad. law school, one of nine women at harvard law. one professor asked the nine women of the class of 1959 how it felt to take the spots that should have gone to more qualified men, ouch! that seems in today's day and age like a vicious comment. >> god bless her and her family. she led a lifetime of service appointed by president carter to serve on the d.c. court of appeals, i believe. appointed by president clinton to serve on the supreme court. while i may disagree with her judicial philosophy, she fought for america. she's an iconic american and should be thanked for all of her service and prayers and blessings upon her family. but i do want to also add, sean, that donald trump was elected to serve for four years until january 20th. the senate ires were elected to serve until january. i do concur with ted cruz in saying that we need this court to be at its full strength by the time the election rolls around because the becomes have foreshadowed that they would contest any election. there needs to be nine justices sitting on that court to deal with whatever might come. >> sean: yeah, you make a very good point. fascinating analysis. congressman, thanks for staying up late. jason good to have you. joining us, jeanine pirro. let's stay focused. one of nine women in harvard law. law review of columbia. transferred. first in cornell. grew up in brooklyn. humble begins. she wanted to be an opera singer. her relationship with scalia and thomas, well-known. affable despite feast differences in judicial philosophy. >> you know, that gives us hope that in society we can have different ideologies and different opinions and get along. but you know, ruth bader ginsberg was a cult figure. she was known among young people as a notorious rbg. gender equality, women's rights as well as equal pay. one of her biggest decisions, united states versus virginia. involved a single sex admission military academy that became open to both sexes. this was a powerful woman. in spite of her size and height, i have been to work out where she was present as well in some of the spots that i went to, she was always determined. we must give her credit and her family our sympathies for the great figure she was. whether we agreed with her or not, she believed in political activism on the bench and benefitted so many women and so many people. at the same time, she was someone that was very, very strident about her political views. you know, i hope that this country will not be split even further because of her death and the appointment of another supreme court justice. >> sean: i'd like to say that is a possibility, perhaps the realist in sean hannity that sees it differently. again, mourning her loss. best to her family. i can't stand when people pass away and immediately people forget the human side of this. she has a family and served her country and gets along so well with justice scalia, justice thomas. tammy, your thoughts. >> look, she's a perfect example of what is possible in this country. we talk about what she accomplished. only possible in this nation. her own commitment to her work tells us that she court is important, that she would not want the court to be split 4-4. even yes, her relationship with scalia indicates clearly that she believed and lived a life where you get along with the people you disagree with, where you negotiate with them. where you deal with them in a human way without being aggressive or ugly or looking to burn things down or to hurt them so if we're going to really hon honor ruth bader ginsberg's legacy, to handle this how she would want us to handle. this entire discussion has been fabulous, touched on all of those issues. but for woman as a role model, separate from ideology but as an indication for every american about what the individual can do, what we can accomplish as individual people. donald trump shows us that and from a very different life growing up to ruth bader ginsberg moving up out of some level of poverty and also in new york. but showing us that no matter who you are, you can make the rest of what your future is. it's in your own hands. we have her as an excellent example of that. >> sean: all right. judge, thank you. we'll watch you tomorrow night. that's all the time we have left this evening. our thoughts and prayers with justice ginsberg's family. let your heart not be troubled. here's laura. >> laura: i'm laura ingraham. this is "the ingraham angle." after a long battle with cancer, associate justice ruth bader ginsberg, the leader of the liberal wick of the supreme court died at home tonight at the age of 87. she was surrounded by her family. justice ginsberg was a legal pioneer and the second woman to have been nominated to the court. a graduate of cornell, columbia law school and a proud brooklyn native, she had a sharp wit and attention for speaking her mind. for her votes and hard

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