By the alleged rape of a 14yearold girl by two illegal alien teenagers. We will have a comprehensive report on that. I have Great Respect for peoples right to believe what they want to believe. Bill also, ahead, Colin Kaepernick, who would not stand for the national anthem, is now having trouble finding a job. Gutfeld and mcguirk havehe thoughts. Caution, you are about to enter the no spin zone. The factor begins right now. Bill hi, i am bill oreilly. Thanks for watching us tonight. The most important political story of the year. That is the subject of this evening talking points memo. Many americans voted for donald trump because they feared a democrat winning the white house would appoint yet another liberal judge to the Supreme Court. M in recent times, the courtou has ruled on politics, not the law. Many americans fear that. Mr. Trump nominated neil gorsuch from colorado, a very solid judicial record. Serves on the tenth circuit t u. S. Court of appeals. Today, they were hearings of the senate because they must approve judge gorsuch. Predictably, some liberal politicians do not like the judge simply because he is not a liberal. Even though his record is stellar and his philosophy independent, some Democratic Senators will not vote for him. Judge gorsuch has also stated that he believes judges should look to the original public meaning of the constitution when they decide what a provision of the constitution means. This is personal, but i find this originalist judicial philosophy to be really troubling. I firmly believe the american constitution is a living document intended to evolve as our country evolves. Bill senator feinstein should know better. If judges are free to rule on judicial evolution, that means they become politicians. All judges in america should have just one rule. What was the intent of the original constitution . If they reject that and make their decisions based upon their own political beliefs, what do we have . Si another extension of congress, not a Supreme Court. Heres the best example. There is no question the constitution gives the president the power to stop some foreign nationals from coming to the usa. There is no question about it. But activist judges have blocked President Trumps travel order, saying in essence, it is antimuslim. Well, if that were the case, muslims from egypt, saudi arabia, pakistan, and other regions, would be included. But theyre not. So, everybody knows, every fairminded person, that politics, not the law, is involved here. Eventually, the president will win in federal court, take it to the bank. The activist judges dontre car. They have temporarily blocked the order and are liberal heroes. As for judge gorsuch, i looked like he is a traditional man who believes the intent of the constitution should reign. Again, that seems to be unacceptable to senator feinstein and others because they want a judge to bed political. They want a liberal judge. Finally, the best example oft constitutional debate is that the second amendment, the right to bear arms. It is clear the foundingng faths wanted americans to have the a ability to protect themselves. Back then, militias were the mechanism. Private citizens with guns organizing against threats. Today, those threats are more personal. Terrorists and criminals, not frontier marauders. Americans have a constitutionall right to defend themselves against those who would harm them. Er that is why firearms cannot be banned. But they can be limited. Cant have a bazooka or a hand grenade. That is reasonable. Public safety is involved andaz individual states have the right to mandate gun laws based upon the wishes of their people. But the left rejects that. In some cases, wants to ban guns outright. So, at this point, that is constitutional but that can change if the Supreme Court. Becomes solely a political body dominated by the left. Summing up, intent, not evolution, should be the litmus test of constitutional law. That is why a traditional judge, like neil gorsuch, is a vital situation. He will likely sit for decades, presiding over a country in the middle of a social civil war. That is the memo. Now, for the top story reaction, joining us from washington, lisa boothe. Here in washington, Juan Williams. Would you vote against judge gorsuch . Jo if it was was a matter of qualifications, i would vote for judge gorsuch. I must tell you, bill, would you when you say the democrats want a liberal up there they oppose him, i think to myself, wait a second, what happened with Merrick Garland . If it is a matter of qualifications, judge garland, who was president obamas s nominee for the same seat, wasnt even granted a hearing. No hearing for him. Or bill what does that have to do with neil gorsuch . It has a tremendous amount. As we heard today from amy klobuchar, the democrat from minnesota, she said, you have to be aware of the moment we live in. He so if republicans think they can steal a seat and democrats dont respond, are democrats opposedn. To lay there, say, we got beat . Bill you are saying, you vote against gorsuch because you didnt like what happened to garland . You think that is good for the country . No. I think this whole political paralysis, you pointed out to me, i dont think it is good for the country. Bill i dont think payback is helping america. What do you say, lisa . I think that argument sounds petty and incorrect, as well. It was Vice President biden and senator Chuck Schumer has set the precedent for not nominating a Supreme CourtCourt Nominee in a president s final year. That being said, i think legislating from the bench is scary and problematic because there is no separation of powers. I think that is why democrats should support someone like neil gorsuch. This is someone that even president obamas former solicitor general, an independent thinker, he said of the president is going to give him a gavel, not a rubber stamp, who said that he will buck the president if need be. You will see it play out in the hearings. Bill he already blocked President Trump once. Do you agree that intent of the constitution should be paramount to make decisions and not an evolution, a squishyou political theory . Nothing squishy. We have 27 amendments. I wrote a book about this, the Founding Fathers wanted flexibility in the constitution. That is why we have a bill of rights. Bill flexibility is fine but they wanted the constitution to be one for the ages. Not to change by political you said that you have to adhere to intent. When you have Something Like the Founding Fathers didnt have phones, they dont know how to deal with wiretaps. Bill what was the intent of the Founding Fathers privacy dictums . You dont do it on politics. You got to say to a black person, three fifths of a person is what the Founding Fathers. Bill that would change. Now, we are dealing with the law based on a constitution not an opinion. You have to have thinking judges. Living in real time. Bill thinking is fine. Zealots are not. Real quick, the vote on the Republican Health care law is thursday. We will get into this tomorrow. I cant make a prediction now. There is a lot of stuff swirling around. President trump got involved today with the house. Lisa, do you think it will pass . Yes or no and why, quickly . Yes, i do. I think the margins are tight. Obviously, the House Freedom caucus is to watch. The house is not whipping their caucus. Bill the real conservative base doesnt like it. Do you think it will pass . I dont think at this moment they have the votes. Paul ryan says they have the votes. Bill Juan Williams says no . You are asking me . Bill you are Juan Williams i am saying it to bill oreilly. Im saying im surprised. Republicans are the problem, not the democrats. Bill i love this. Williams says no, lisa bootheic says yes. I will weigh in tomorrow. I appreciate it. Next on the rundown, will judge gorsuch get a break in the press . Bernie goldberg has some thoughts. Later, gutfeld and mcguirk on Colin Kaepernick, still out of work in the nfl. Is his protest hurting him . The factor is coming right back. Ng him . The factor is coming right by the time you head to the bank and wait to get approved for a home loan, that newly listed, midcentury ranch with the garden patio will be gone. Or you could push that button. [dong] [rocket launching] skip the bank, skip the waiting, and go completely online. Get the confidence that comes from a secure, qualified mortgage approval in minutes. Lift the burden of getting a home loan with Rocket Mortgage by quicken loans. [whisper rocket] a cockroach can survive submergede guy. Underwater for 30 minutes. Wow. Yeah, wow. Not getting in today. Not on my watch. 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Serving all your motorcycle insurance needs. Now, thats progressive. Bill impact segment tonight, one of the problems President Trump is having, not only is the Democratic Party trying to subvert him, but many in the media are doing that as well. The question tonight, will the press attack judge gorsuch . Joining us from miami, bernie goldberg. Seems like a nice guy. I looked at his record, he very rarely overturned, it is logic he applies to his decisions. The press, i havent seen the New York Times said he shouldnt go in, but of course they are going to say that. The Washington Post loads up on opeds against him. That is predictable. But generally speaking, it is only the real liberal zealots against him, or am i wrong . I think you are right. Let me report to you what the conservative Media Research center says because they monitor these things. Au they see a case of liberal bias in the coverage because yesterday, only fox news of the Cable News Networks and of the broadcast networks, only fox news ran the gorsuch hearing live while the others stayed for hours on the fbi hearing, which arguably made donald trump look bad. Therefore, in their eyes, a case of liberal bias. I disagree. The fbi hearings are far more important than the gorsuch opening statement. I dont think there was bias there. That is hard news. As for opinion journalism, yeah, the commentators at big city newspapers on the other Cable Networks mainly are liberal andh they are not going to like a conservative judge. I happen to disagree. I think if we were less partisan, he would win 1000, such as his qualification. I am not shocked by that. Bill i dont think he is a conservative judge. He is conservative on a few things, like religious liberty. He is seen as conservative. Bill he looks real independent to me. I looked at his rulings. Bill, based on his record, he ought to win 1000. Bill he is not antonin scalia, who was very, very adamant that the country should be run according to conservative principles. Your talking points were right on the money. You made a very interesting and important point. W you said that they some people who are against gorsuch are doing it for political reasons and want judges to be political. You are right. Heres the key. They want judges to be political but only when the judges politics are the same as their liberal politics. Bill you saw that with al franken tonight. How this guy ever got elected senator, i am sitting saying to myself, how could this possibly happen . He was giving gorsuch a hard time when some oblique ruling he made about some guy in a truck. [laughs] i am going, the guy has ruled on thousands of cases. Go ahead. That example is representative of a lot of the c criticism of judge gorsuch. That is, he doesnt have a enough empathy, in this case of the truck driver, who was stuck in the cold. Its a long story. He doesnt have enough empathy for the little guy. S the thin. Priests can care about the little guy and advocate for them, social workers can advocate for the little guy, politicians can, but judges cant. That is not their job. Sometimes, forgive me for saying this on national television, sometimes, the little guy is in the wrong. In that case, the judge has to rule against the little guy. Bill you have to rule on the basis of law. This is something that liberals in and out of the media dont quite seem to grasp. Bill i dont think that americans understand, we have a watters world coming up tomorrow on this, they dont i cant wait for that. Bill every time he goes out and talks to regular folks at random, remember, they are not selected, and they know nothing, which is going to be the case because we have already shot this thing, about the Supreme Court, which holds the power over our lives. It is not that the pin head politicians that are holding that power over our lives, not President Trump, he will be in for a while and then, hell be gone. The Supreme Court holds power over how we live. The American People, generally speaking, have very little knowledge of this. Last word. Youre right. Let me make one comment, one observation about the media and the judge combined. There is a motto and a lot of american newsrooms that say, our role as journalists are to afflict the comfortable and comfort the afflicted. That is a thousand percent wrong. That is not the role of journalists. And it is not the role of judges either. We are not in the business of comforting the afflicted. That is for other people, like i said, for priests and other people. Bill i want to comfort everyone. That is what i do. I am. I because im a commentator. You are doing a fine job. You are comforting me a lot, i will tell you. Bill 20 plus years. You have been along for the ride for eight or nine. Talk about comforting you and your family. You are. Bernie goldberg, everywhere. Directly ahead, did you know, a fox news analysts spent time in jail because every journalistic beat . We will talk to them. Later, horrific crime in a sanctuary town, a 14yearoldd girl allegedly raped by illegal aliens at a high school. The factor is coming right back. Raped by illegal aliens at a high school. The factor is coming safe drivers who switch to esurance could save money on car insurance. You know, the kind of driver who always buckles up. Comes to a complete stop. And looks both ways, no matter what. Because esurance believes thats the kind of driver who deserves to save money on car insurance. In fact, safe drivers who switch from geico to esurance could save hundreds. So if you switch to esurance, saving is a pretty safe bet. Auto and Home Insurance for the modern world. Esurance. An allstate company. Click or call. Hashtag stuffy nose. Hashtag no sleep. Hashtag mouthbreather. Just put on a breathe right strip. It instantly opens your nose up to 38 more than Cold Medicine alone. Shut your mouth and say goodnight mouthbreathers. Breathe right. Bill factor followup segment, journalists that deal with National Security secrets. 2005, the New York Times reporter Judith Miller spent 85 days in jail because she refused to divulge a source to a federal grant journey. The story centered on former cia agent Valerie Plame, whose identity was leaked, violating National Security laws. Judith miller joins us now. So, why, if you didnt write about her, and you didnt, correct . Not a word. Bill how did the grand jury subpoena you to appear . There was a special prosecutor in this case and they wanted to ask every one, who were your sources, who leaked the name, i knew i couldntke protect my sources, i couldnt get it. Bill you were on the National Security beat . The special prosecutor, who was it again . Patrick fitzgerald, james comeys good friend. Bill he was after Scooter Libby chief of staff for the Vice President of the time. E dick cheney. Now, you got caught up, even though you didnt write about it, and the grand jury said to you, okay, did anybody talk to you about Valerie Plame, that was the question . I couldnt appear before the grand jury, the judges said dobo you have to talk to the grand jury and i said i cant. Bill you didnt go in . You refused to sit before the grand jury. That is why you got sentenced to jail. Contempt of the process. Why didnt you just said before the grand jury and say, i cant tell you . . Why didnt you do that . C i didnt want to mislead them into thinking they were going to hear something. Bill