Producers' Pick | Jonathan Turley: Biden to Pick SCOTUS Nominee Based on Race and Gender

Live from the Fox News Radio Studios in New York City, fresh off the set of Fox & Friends, it's America's receptive voice, Brian Kilmeade. I mean, I'm just watching this now on Fox News and you just see all these illegal aliens being marched through San Antonio, Texas into the interior of our country on camera. Not only do we have it on tape, now we have it live. And they say males, thanks to Title 42, should be immediately turned around. That's the law.

But it doesn't seem like this administration cares. Hi everyone, welcome to the latest hour of the Brian Kilmeade Show. We have this hour joined by Geraldo.

He does not have a last name. Jonathan Turley does. He'll be with us shortly. Let's get to the Big Three.

Now with the stories you need to know, it's Brian's Big Three. Number three. We have seen nothing, and I've said this just recently here at the Pentagon, we've seen nothing that makes it clear that Mr. Putin is willing to de-escalate the tensions and to move those troops away. Right, tensions rise on the border of Russia and the Ukraine, despite the talks yesterday and promise of two weeks from today. What are we doing and not doing to lower the chances of an invasion and a European upheaval not seen in 70 years?

Number two. We need to understand what are we doing legislatively on the state level that are allowing dangerous people to return to our streets. We need to understand why the guns are continually flowing to the cities throughout this country.

That is Mayor Eric Adams. Crime run rampant. Even some Democratic leaders are seeing the need for punishment as the men and women in blue find themselves victimized by a society that has taken them for granted for way too long. They've been defamed and defunded way too much. I have hoped things will change.

Number one. They've lied to the American people. Southern border crisis. They're waving them in. They're putting on planes, sending them to airports closed at night like Westchester, putting them on buses and then released into cars into the community.

There you go. Former Westchester County executive Rob Astorino. The breaking point of the border between the secret fights of illegals, small town airports where they land, the busting of illegals into states around the nation without telling the governors or mayors. Fox's reporting is showing the Biden breach of immigration laws at a level we didn't think possible.

Will it change? I'm not sure unless there's going to be a change of leadership. With me right now to talk about predominantly the change of the Supreme Court, but I would like to get you on the record with this. Jonathan, is it okay for the president not to enforce our borders? Well, this has been a long controversy because if you remember, President Obama declared that immigration laws would not be enforced against whole groups, including the dreamers. And the courts have generally found that that's a matter of discretion. That presidents, particularly at the border, can prioritize different things. And so this has been a problem that the courts have really grappled with for years, but I think President Biden knows that they tend to defer to the administration as to how it prioritizes immigration.

It becomes a political issue as to who you want in the White House. But for example, Title 42 says single males without an excuse are turned around. They're not. We're watching it live on television. And then we see these secret fights in Westchester through a Freedom of Information Act, 55 minutes of audio. They have these contractors talking to cops saying, what is going on? And they say, well, we're in the air.

We're not even sure where we're going, even when we're in the air. And then they quickly tell us. So here's a contractor talking about these secret fights to a cop on the tarmac. Let's listen. Cut for it.

I get the whole secrecy and all this, but this is even about my life. The government. By letting them in. Can I add in? They're unvaccinated.

Can I add in? We know nothing about their background. And Bill Mnuchin is reporting it's not been denied by ICE. Some of them have records misdemeanors and they're still coming in.

They've been dumped into school districts, into schools, doubling the size of classrooms, using taxpayer monies through NGOs. This whole process seems to be a flashing five-alarm fire. Yeah, and I think it's going to obviously get worse. I think that the President is legitimately criticized for the debacle at the border, and he's lacked both transparency and, quite frankly, honesty with the American people. You know, these flights are a really good example of how hard the administration has worked to avoid the obvious, that it in fact is releasing thousands of people into the interior of the United States. And in court, the administration has really fought the Trump policies that would have required the return of these individuals. And as courts have ordered them to follow federal law, they've tended to slow walk it. And they cite progress in which they are implementing a change.

But in the meantime, they are getting thousands of releases out into the country. So let's talk about the news yesterday. Justice Breyer, through reporting on NBC, it's now confirmed that Justice Breyer is going to retire. How unusual is the way we learned about this and the fact that we have not got confirmation from the Justice himself?

It's really unusual. This is one of the most unfortunate things I've seen come out of the court in a long time. There is a protocol that we wait for the Justice to issue a letter announcing an immediate or forthcoming retirement. And then the President comments on it. And that's why the President Biden was correct yesterday when he refused to make a comment and said, I'm going to wait for Justice Breyer.

That was the right thing to do. But the wrong thing was whoever leaked this. I mean, this was really the culmination of a year in which Breyer has been treated in a shameful fashion. He's been hounded by liberal groups to retire. The billboards that call for him to retire.

And then at the end, they even leaked his plan to retire. This was his moment. He earned it. You can disagree with his rulings. I often have disagreements with him. But he was a consistent and profound jurist. He came from a very liberal view of the law. But he had deep-seated reasons for that. And he consistently applied them.

And his opinions will have a lasting impact because they have a depth to those decisions that will be cited for generations. This was a shameful way to treat him. And I feel really bad for him.

Yeah. I mean, it's disrespectful to your business. You know, there's a protocol and they blew it. I'm not sure how NBC got the link.

A lot of people think it's because they're forcing him out and this is part of it. And it might have come from the White House. Pretty clear, though.

And tell me how unusual this is, Jonathan. Instead of saying, well, it's going to be a man or woman, which is what's the, you know, okay, we got an indication. But now they tell us what color she will be ahead of time. So listen to CNN yesterday.

Cut 32. It is a history-making moment. It will change the way the court looks.

And I think we cannot understate that. For this particular president, where he is today, with a need to give something that is of great importance to his supporters, people who put him into office, especially black women, this is a really important moment. I never had the luxury of leaving any part of my identity at the door before I walked into a courtroom, walked into a boardroom, walked onto these very sets on CNN.

I brought with myself the entirety of being a black woman, the lived experience of what that's like in a country like this. I think it's incumbent upon our country to recognize that if we do not bring all of America and the holistic views of people, including black women, then we are doing a disservice to any objective evaluation of laws in this country. But are you using objective evaluation if you've narrowed, you've taken a gender out and every other, every other ethnicity out? Well, this is actually the subject of my column this morning in the Wall Street Journal in which I point out that this approach would be deemed unconstitutional or unlawful if it was applied by a school or a private business. This nominee will be sitting on a court that has repeatedly declared that these types of racial and gender criteria are unlawful or unconstitutional. And indeed, this nominee will sit for arguments on two new cases involving racial preferences in universities. And yet she will have been initially selected not just by a preference, but by an actual exclusion of other genders and races.

So what's really striking here is not just how unprecedented this is, but how unnecessary it was. You know, Ronald Reagan said he wanted to put a woman on the court. He didn't guarantee it. He said he wanted to use one of his vacancies to put a woman on the court. And he worked very hard to do that. Other presidents had made it clear that they wanted to have more diversity among nominees. But Joe Biden went further and said, I'm going to exclude any male or anyone who is not African American. And that was really quite shocking in the debate. I wrote a column at that time saying, really, that's going to be the criteria on the court that has struck down that criteria for private businesses. Precise, personal, powerful is America's weather team in the palm of your hands.

Get Fox weather updates throughout your busy day every day. Subscribe and listen now at Fox News podcast dot com or wherever you get your podcasts. I could add to that, as was published in a book, one of the Trump hit books during the debate. James Clyburn and watching Joe Biden in South Carolina, the primary hadn't happened yet, said he was going to the restroom. Instead, he went backstage in a break and he went to Joe Biden says, you have had many opportunities to guarantee that you will name a black woman as a Supreme Court justice. Do it.

And he says, you got it. And he does. It's almost like I know there's nothing illegal about it, but there's something unsavory about it. Well, it is. It's also grossly unfair to these nominees. You know, some of the women on these lists would be considered for a vacancy regardless of their race and gender. And what he's doing is he's creating an asterisk nomination. And that's not fair.

These women don't have to have this type of shorter list of consideration. And I think that it was done for Joe Biden's benefit. It was a political decision that he needed this for the primary.

But he I think he really undermined not just the court, but the future nominee herself. You know, I remember when those Hollywood stories came out and how these Hollywood stars were basically using athletic scholarships, paying those colleges. In other words, got into colleges they didn't deserve and they pretended to be athletes.

They weren't. And they use some of that scholarship money as rowers and track stars when they weren't. And they would get into these prestigious schools and everybody was arrested. And it's obviously going on.

Some of those cases still going on. And then some of the black students on these Ivy League campuses is now you know how we feel. Now, every celebrity walking on campus will wonder, did their parents pay for them to be there and pretend they were somebody they're not? And he said, that's how we feel, because a lot of people think that there is a quota to these Ivy League or these elite institutions. That's the only reason they're at Yale, they're at Harvard, they're at Dartmouth. And even though some of them or most of them have earned it with their GPAs, that's not how they're viewed because of affirmative action on college campuses. And they say, now you celebrities, now you know how we feel, that's how you're going to be viewed on campus from here on in, like it or not.

I think it's akin to this. Well, I really don't understand why people cannot support the idea of having an African American female on the court while saying, you know what? He went too far.

He shouldn't have done that. He should consider all candidates and do what the Supreme Court has done and said it can be a plus. You know, diversity can be a plus. It just can't be determinative.

It can't be the primary or only consideration. This isn't even a racial preference. This is a racial exclusion. And, you know, the court would never tolerate that for an educational institution, for example, and in fact has said in the past that this is raw discrimination. It's also key to note that the President's record on racial discrimination is not good. You know, the federal courts have struck down programs like the farm subsidies with the pandemic relief funds, which were given, where black farmers were given priority over white farmers. They said, well, that would be called raw racial discrimination. And they struck that down. And now the administration is arguing that treatments for COVID should in part be based on race.

You know, all of this is entirely unnecessary. Do you think this will ever come up in a case that such and such justice got their job because of their race and their gender? And maybe will she have to recuse herself?

No, I don't think so. I mean, the thing is, some people might argue on these school cases that this nominee had a controversy with regard to this admissions rule effectively for the court. I don't think it would be treated as credible. It's left up to the individual justice whether she will recuse herself. And I think the justice will say this is a different situation. You know, President's given great discretion on how or who or why he would nominate someone.

And we're talking about a school admissions policy that is subject to both the 14th Amendment and federal law. Jonathan's always in education. Jonathan Turley, thanks so much. Thanks.

All right. So listen, when we come back, the controversy over Minnie Mouse going from dress to pantsuit. I have a friend that's at Disney and wants to clarify what exactly is going on. So we've discussed it in a previous hour on the Thursday edition of The Brian Kilmeade Show, but I'm going to get to it now because we have breaking news, whether it's animated or fiction or nonfiction, we cover it all. Coming to you on a need-to-know basis because, man, do you need to know. It's Brian Kilmeade. Put the power of over 100 meteorologists and the worldwide resources of Fox in your hands with the Fox Weather Podcast. Precise. Personal. Powerful. Subscribe and listen now at Fox News podcast.com or wherever you get your podcasts.