Breaking: President Trump to Announce SCOTUS Pick This Week

Breaking news today on Jay Sekulow Live as President Trump announces this morning that he will announce the replacement for Justice Ruth Bader Ginsburg later this week. We'll talk about the politics of it, the U.S. Senate, and all of the inner workings today on Jay Sekulow Live. Live from Washington D.C., Jay Sekulow Live. You said you'll make the announcement this week.

Can you tell us more about that? Will it be the beginning of the week? What day? I think it'll be on Friday or Saturday, and we want to pay respect. It looks like we will have probably services on Thursday or Friday. As I understand it, I think in all due respect we should wait until the services are over for Justice Ginsburg. Phone lines are open for your questions right now.

Call 1-800-684-3110. We're looking for somebody who really understands the law and abides by the Constitution. And now, your host, Jordan Sekulow. Welcome to Jay Sekulow Live. This is Jordan Sekulow. Wow. I mean, since Friday when we talk to you how things can change in politics, on the Supreme Court, and even the focus back on Capitol Hill, especially with the U.S. Senate.

So you've got kind of two spotlights. You've got a spotlight on when President Trump will announce the replacement for Justice Ginsburg. And he has said that will likely happen Friday or Saturday.

Some of his staff said maybe even potentially Wednesday. There's a service for Justice Ginsburg on Thursday. There's also a lying in state on Friday.

These are more limited because of COVID. But I certainly wanted to let some of those activities go by before announcing Justice Ginsburg, the late Justice Ginsburg's replacement. So you've got the spotlight on the President, obviously, and a lot of attention there. We'll talk about some of the names, but I think we've got some time to really get into that throughout the week. I think the bigger issue to address today is the second spotlight on the U.S. Senate because there's going to be a lot of politics around this, obviously. Mitch McConnell has said we will have a vote on President Trump's nominee. And they said, well, you hypocrite, you wouldn't have a vote on Merrick Garland.

Why? Well, it's a pretty simple response back for everybody listening right now. Elections have consequences. When there is a Democrat President in a Republican Senate, the Republican Senate, do you really expect in an election year to go forward and just put on a lifetime appointment of a Democrat President who's not even up for reelection? Remember, Barack Obama's not even up for reelection. Do you really expect them to do that? Elections have consequences.

People put them there on purpose as a check. Now, fast forward to right now. It's a Republican Senate and a Republican President. The voters have chosen that.

They've chosen that makeup. Again, if you look back in history, when this happens, the Republican President nominates and the Republican Senate confirms. Now, it could be a very close confirmation vote. We've heard from a couple senators who may be against kind of like cloture on this vote. I don't know if they'll actually vote against the nominee, but it looks like it's right on the line. And that will be up to Mitch McConnell.

So you've got these two competing spotlights this week. One will be, of course, on whoever the President chooses. And there's names. There's names like Amy Barrett out of the Seventh Circuit, Barbara Legault out of the Eleventh Circuit, and more.

I mean, again, I think you could go through. Alison Rushing, she is on the Fourth Circuit. You could go through a list of names.

The President did say it would likely be a woman. There's also Kate Todd, who is a White House Deputy Assistant to the President, Deputy Counsel to the President, who served as, again, she was the Chief Counsel of Litigation for the U.S. Chamber Litigation Center. So there's a whole list of names. Most are circuit court judges right now that were put there by President Trump. Others who have not served on the judicial branch. And again, we can go through some of the names, but I think the politics of this is extremely important because if you're a conservative, you're going to be hearing constantly, you hypocrites, you hypocrites. No. If there was a Democrat President and Chuck Schumer was the leader of the U.S. Senate, do you think he wouldn't confirm a nominee?

Really? I don't because his first tweet that came out about after Justice Ginsburg passed away wasn't about her. It was about not confirming her replacement.

It was all about politics. We'll talk to you. 1-800-684-3110.

Give us your phone calls. The challenges facing Americans are substantial. At a time when our values, our freedoms, our constitutional rights are under attack, it's more important than ever to stand with the American Center for Law and Justice. For decades now, the ACLJ has been on the front lines protecting your freedoms, defending your rights, in courts, in Congress, and in the public arena.

And we have an exceptional track record of success. But here's the bottom line, we could not do our work without your support. We remain committed to protecting your religious and constitutional freedoms.

That remains our top priority, especially now during these challenging times. The American Center for Law and Justice is on your side. If you're already a member, thank you. And if you're not, well, this is the perfect time to stand with us at ACLJ.org where you can learn more about our life-changing work.

Become a member today. ACLJ.org. Only when a society can agree that the most vulnerable and voiceless deserve to be protected is there any hope for that culture to survive. And that's exactly what you are saying when you stand with the American Center for Law and Justice to defend the right to life. We've created a free, powerful publication offering a panoramic view of the ACLJ's battle for the unborn.

It's called Mission Life. It will show you how you are personally impacting the pro-life battle through your support. And the publication includes a look at all major ACLJ pro-life cases. How we're fighting for the rights of pro-life activists. The ramifications of Roe v. Wade 40 years later. Play on parenthood's role in the abortion industry. And what Obamacare means to the pro-life movement. Discover the many ways your membership with the ACLJ is empowering the right to life.

Request your free copy of Mission Life today online at ACLJ.org slash gift. I want you to listen to President Trump too. So in contrast that with Chuck Schumer. Chuck Schumer whose tweet came out immediately. Pull that forward guys. He pulled out this tweet immediately.

Maybe we could show that first. Do you have the tweet? Ok so we'll put up his tweet so that you can all see that who are watching on Facebook and Periscope and I'll read it for a radio audience. But just think about how Donald Trump responded. He was leaving a rally.

It was loud, it was raucous. But he was getting back on his airplane and he heard the news. And all of his aides confirmed.

He hit the stage about 10 minutes before the news had broken about this and wasn't notified earlier about this. So this was President Trump's immediate response. No questions asked. No preparation.

Had no prep from his aides. This is how he responded. She just died? Wow. I didn't know that.

You're telling me now for the first time. She led an amazing life. What else can you say? She was an amazing woman whether you agreed or not. She was an amazing woman who led an amazing life. I'm actually sad to hear that. I am sad to hear that.

Thank you very much. You know, that's a President. He didn't talk about replacing. He didn't talk about politics. He didn't say I disagree with her so much on her political philosophy or her legal philosophy and how she viewed the constitution or activist role as a judge.

He just responded as a human being. Chuck Schumer tweeted this one right after another. Tonight we mourn the passing of a giant American history, a champion for justice, a trailblazer for women.

But that wasn't it. So he could have left that there. He went on to tweet, she would want us all to fight as hard as we can to preserve her legacy. That means not allow a conservative nominee to fill her seat.

Then he sent a second tweet, again without much more about Justice Ginsburg. The American people should have a voice in the selection of their next Supreme Court justice. Therefore this vacancy should not be filled until we have a new President. Nancy Pelosi is also threatening. Now she was kind of set up by this by George Stephanopoulos.

Do we have the sound for this? Because Nancy Pelosi when asked by George Stephanopoulos, would you even impeach the President or maybe the attorney general of the United States right now to stop a nomination for moving forward? She didn't say no, that's absurd because we may disagree with the President, but he certainly has the constitutional right to nominate. We would fight hard that the Senate doesn't move forward.

Certainly the Senate plays a role there with advice and consent. So again, she could have put that away, but no, she said it's one of the quivers that she has. Again, one of the arrows she has.

Take a listen. Some have mentioned the possibility if they try to push through a nominee in a lame duck session that you and the House could move to impeach President Trump or Attorney General Barr as a way of stalling and preventing the Senate from acting on this nomination. Well, we have our options.

We have arrows and our quiver that I'm not about to discuss right now. Easily could have said, I'm not going to be absurd here and say that we're going to impeach a President who has a constitutional right, you know, Article 2 is to nominate, doesn't get a constitutional right that they could confirm, but certainly has a constitutional right to nominate. No one said they should impeach President Obama for nominating Merrick Garland. It was just like, this ain't going to go anywhere, buddy, because it's a Republican Senate.

And let me do a little history and then go to Thanh and Andy Cahneman who are both in Washington, D.C. There have been 29 vacancies on the Supreme Court in the election year. Presidents have made nominations in all 29 of those. That didn't mean they all got confirmed, but the Presidents follow their constitutional role to nominate in all 29 of those.

That's what they do. Now, what has the Senate done? Well, when it's the same party as the President, so 19 of the 29 times I just talked about where there's vacancies in the election year, the party that was the same as the President confirmed 17 justices to the Supreme Court. So only two were rejected when the same party was in charge of both the White House and the Senate. That goes for Republicans and Democrats, by the way. Now, on the opposite party of the President, 10 of the 29 times have been when the Senate has been at the opposite party of the President. Guess how many of those got through?

Two. So 17 out of 19 when it's the same party, President and Senate, 2 out of 10 when the President is a different party than the U.S. Senate. And Than, I think that just goes to elections having consequences. The American people know if you want this kind of battle of Washington, D.C., you would put in place senators in charge of the opposite party of the President so that you would get these more moves that were more similar to what we saw under Merrick Garland. And in history, where only 2 out of 10 of those nominated when it was in a situation like President Obama's made it through.

Or you could choose a situation like the 19 of 29 times where 17 out of 19 were confirmed when it was the same party. And Jordan, there's a very important reason for that. It's not just precedent. It's not just the opinions of the politicians who, by the way, politicians on both sides of this, Jordan, have flip flopped.

Absolutely they have. But the important reason, the reason it's set out this way by our founders is so that the American people have a regular opportunity to weigh in and either affirm the authority of the President or Article 2, Section 2 or provide a check on that President. Jordan, the seat doesn't belong to Justice Ginsburg as great as her life does. It doesn't belong to any President. It doesn't belong to any of those politicians across the street who have flip flopped on this issue.

It belongs to the American people. And just quickly, Jordan, I'll tell you, we're going to hear so many times about 2016 and Merrick Garland, but the American people were given an opportunity in 2014 to go to the polls and decide whether or not they wanted President Obama to have the ability to fill a seat in the final two years. They chose to send a Senate to Washington, D.C. to provide a check on President Obama. What did they decide in 2018? They decided to send a Senate to Washington, D.C. to affirm President Trump. He will absolutely nominate and the Senate is absolutely entitled to proceed or not proceed. And why, Jordan? It's because the seat belongs to the American people and they chose this Senate to be the one to make a decision on that nomination. You know, it's interesting.

I want to go to Andy Economou. Andy, we heard from the Senate Judiciary Chairman Lindsey Graham who had a position. They said, well, this now you're in contrast.

He said, you know what? All my previous positions went out the window, Andy, when I saw what they did to Brett Kavanaugh. And now that they're saying they're going to pack the courts, let me read to you what Lindsey Graham tweeted. Being lectured by Democrats about how to handle judicial nominations is like an arsonist advising the fire department. Democrats chose to set in motion rule changes to stack the court at the circuit level and they chose to try to destroy Brett Kavanaugh's life to keep the Supreme Court seat open.

You reap what you sow. That is Andy Senator Lindsey Graham saying all those rules, all those statements we made, they're out the window anyways after what you guys did. Well, I agree with Lindsey Graham entirely and his analogy to putting an arsonist in a position of advising the fire department is exactly right. We don't need the Democrats lecturing the United States Senate on how to fill a seat through the advice and consent process, nor do we need the Democrats telling the President of the United States what his constitutional duty is. And I look at this as a duty on the part of the President, not a right. As Stan said, we've got a President of the United States who was put in office by the people of the United States. You've got a Senate that is Republican. You've got a vacancy that was created by the death of Justice Ginsburg for all the amazingness of her life.

I disagreed with her most of the time, but nonetheless, she was a great public servant and I acknowledge that. But the reality is that there is a vacancy and he is the incumbent President of the United States. He has the right to fill it. He doesn't have to wait till he's reelected. If he is, he doesn't have to wait for an inauguration of a new President.

If that happens to be the case, there is a vacancy. He fills it and he goes to the United States Senate for its advice and consent. Period.

The end. We're not going to have another smear campaign and attack, I hope, like we saw with Brett Kavanaugh and we saw with others because he wasn't the only one that has been smeared by the Democrats. So I agree with what you said with regard to Lindsey Graham's comment on this, but this is a seat that, as we have all been saying here, belongs to the American people. They have a President. It should be filled.

The Senate should advise and consent. Let me tell you something, folks, too. All these dates, all these days, is it Fridays, it's Saturday. Kayleigh McEnany talking about Wednesday. It could be tomorrow. The President could announce it tomorrow. I mean, the truth is, I don't want anybody to get too focused in on what day of the week this is going to be.

I just want you focused in on to be ready for war. I wish what Andy said, Thanh, was not correct, but I believe this is going to be the war of all wars when it comes down to judicial nominations. First, even within the Republican party, because there's a few Republican senators that are not so solid on this, and then second, Republicans versus the Democrats.

And one thing it does take away attention a lot from is people like Joe Biden on the campaign trail, because that's not where people's focus is going to be, because the news is not going to focus there. Well, if you follow Joe Biden's position on this, the nomination should go forward and it should be confirmed. We've got every word out of his mouth. And quite frankly, we have rules inside the Judiciary Committee that are named after him.

He's flip-flopped more than anybody. But Jordan, again, I just want to draw this back to the American people. People like Susan Collins saying that she's not going to vote to consider this.

Let's see what the people of Maine who put her in office to do her job have to say with that. I don't think that story is written yet, Jordan. No.

And I also don't think the story about is it Friday or Saturday has been written yet either. So pay close attention these next few days. We'll be right back on JCEC Your Live. I want to take your phone calls, answer some questions about this as well.

I think there's got to be a lot of questions out there. 1-800-684-3110. Only when a society can agree that the most vulnerable and voiceless deserve to be protected is there any hope for that culture to survive. And that's exactly what you are saying when you stand with the American Center for Law and Justice to defend the right to life. We've created a free, powerful publication offering a panoramic view of the ACLJ's battle for the unborn.

It's called Mission Life. It will show you how you are personally impacting the pro-life battle through your support. And the publication includes a look at all major ACLJ pro-life cases, how we're fighting for the rights of pro-life activists, the ramifications of Roe v. Wade 40 years later, Planned Parenthood's role in the abortion industry, and what Obamacare means to the pro-life movement. Discover the many ways your membership with the ACLJ is empowering the right to life.

Request your free copy of Mission Life today online at ACLJ.org slash gift. The challenges facing Americans are substantial. At a time when our values, our freedoms, our constitutional rights are under attack, it's more important than ever to stand with the American Center for Law and Justice. For decades now, the ACLJ has been on the front lines protecting your freedoms, defending your rights, in courts, in Congress, and in the public arena. And we have an exceptional track record of success.

But here's the bottom line. We could not do our work without your support. We remain committed to protecting your religious and constitutional freedoms.

That remains our top priority, especially now during these challenging times. The American Center for Law and Justice is on your side. If you're already a member, thank you. And if you're not, well, this is the perfect time to stand with us at ACLJ.org, where you can learn more about our life-changing work.

Become a member today. ACLJ.org. It's interesting. In 2016, Justice Ginsburg was asked about proceeding on Garland and what should the Senate do, and she said, you know, it's their job. There's nothing the Constitution said the President stops being President in his final year, so you can make the appointment, but it's not like the Senate also stops working either. So the Senate still works, too. And if it's a Senate that would likely approve a nominee from their own party's President, they keep working, too. And if it's a Senate of the different party, they might not even approve that nominee. So, you know, going through the motions is kind of like, well, why even do that when you're not even going to allow that to necessarily move to a cloture vote?

You might even prevent that from moving forward. I mean, remember all those rules that were in place, things like that. So I just want to make clear to people this. A lot of people talk about, oh, it was endless.

I have great respect for Justice Ginsburg. We talked about that. My dad was on Sean Hannity's broadcast.

The President's talked about it. I think we've heard a lot from that. She's been on the court for as long as I can remember as a kid. I don't think she was there the first time. My dad argued her second time, but maybe the third. And she was there for the last time he argued. And you can respect that she became this cultural icon, and in some ways, good.

I will say, in some ways, having all those kids' books about RBG helped me with my younger daughter to kind of explain what we do at the ACLJ and the courts, because there's not a lot out there about Supreme Court justices. But on actual policy, though she was with us about 60% of the time when it came to free speech, she was not good when it came to the religious liberty issues, and she was not good, of course, on abortion. And I think it's fair to say, I mean, her legacy is being very pro-abortion. That's not a nasty thing to say about Justice Ginsburg. She wants to be remembered that way. So there was something that she did for women's rights I think were great. There were other things that I think were talked about as women's rights, but again, I think, you know, what about the babies?

And shouldn't be put into that category. But I want to address this, this statement from all these people who were very close to her saying she just wants whoever's elected who's the next President of the United States to make that nomination. Well, I'm not sure that Justice Ginsburg, we have no proof that she made that statement, but two, even if she did, we know she was at the very final stages of her life, if she really had thought about it, which she made a statement that said, as in Article 3, with the separation of powers, I'm going to demand what the President of the United States, a separate branch of government should do, or the legislative branch. She still cared about the Constitution. She certainly wasn't an originalist.

She wasn't a constitutional conservative, but she did care about the Constitution and separation of powers. And making a statement like that just doesn't make any sense. I know a lot of people don't want to be nasty.

I'm not trying to be nasty. But I actually think saying that was her final comment, people threw that out there without thinking, and saying, one, the next President could very well be President Trump. So this whole idea we keep hearing from Mazie Hirono and others, like it's a given the next President's going to be someone different than President Trump, and it's a given that the U.S. Senate is going to be Democrat controlled. We keep seeing that over and over again. Let's just be honest.

One, let me go to Than and Andy on this. Andy, first, the separation of powers, that statement just doesn't make sense that, you know, I just don't think the President should move forward until there's an election and a new President's chosen. Well, one is there might not be a new President chosen.

It may just be a President that gets re-elected. And second, separation of powers. She wouldn't want those Presidents and members of Congress telling her how to make her decisions on the court. Same goes for the other way. That's exactly right. She would not have wanted interference from the legislative branch in making decisions that she made in the judicial branch. The judicial branch said the reverse obtains as well.

But I think the important thing is this. The President does not stop being President of the United States on September 20 or 21. He is President until his successor is confirmed, the inauguration takes place. Why don't we say, well, after the first year, you shouldn't make any more nominations. It's too close to an election. Or maybe after the second year, you should stop because it's too close to an election two more years to go.

How ridiculous is that? The Constitution, you know, prescribes, Jordan, that when there's a vacancy, the President has the obligation to fill it and the Senate has the right to advise and consent. At any time, there happens to be one now. It happens to be close to an election. My response is, so what? I want to take Jerry's call from Rhode Island line too because I think this is a great point as well. Remember, right now, the Supreme Court has eight justices, a 4-4 split. In fact, a big Obamacare case that the left is worried about, if it remains a 4-4 split, guess what happens? The lower court ruling stands. And what does the lower court ruling stand?

Obamacare is unconstitutional. So, I mean, there's a lot of consequences when you have 4-4 splits, but even more so an election that could be very highly litigated. Jerry, you're on from line two from Rhode Island. Welcome to JCECO Live.

Hello, team. I know you already mentioned the dangling chads of Florida, which between mail-in ballots and that kind of situation could be looming in November, but don't we already have a looming thing when President asks DOJ Barr about defunding three anarchist cities of federal funds, which could easily get to a Supreme Court on a 4-4 split, so don't we already have a legitimate Presidential issue that he needs to address? There's always. I talked about the Affordable Care Act.

You just talked about that one out of Portland. Again, there could be a lot of issues involving the election that need to be litigated. What the Democrats are kind of hoping for is that there's going to be a lot of issues litigated.

They think that that's their best chance is that the election won't be decided on election night and that it'll have to be litigated and they keep telling everybody, you know, you're not going to have a President on, you won't know who's going to be the next President inaugurated that Tuesday on election day on November 3rd. And having a split like that on the Supreme Court is extremely dangerous. I mean, it just, it puts a lot of things into, because you, with ties and things like that, you're letting lower courts decide the presidency of the United States potentially. Yeah, there's a big reason that there's an odd number of justices on the court, Jordan, it's so that you don't have a 4-4 split in those kind of circumstances. And look, there's always cases pending before the court that are of significant significance.

But as you lead up to the election, of course, there are a disproportionate number of potential cases that we might not know about yet that would ultimately come. And I just wanted to follow up on Andy's comment for just a minute here, because look, our founding fathers could have easily done what he suggested and put a deadline on when the President would have this expiring authority. They chose not to do that. They did choose to put a check on the President and they chose to put a check on the President that belonged to the American people at the ballot box. Now, the American people are about to go to the ballot box again, but they already went for this term, Jordan, and they have the opportunity to send a Senate to affirm or provide a check to the President. They chose to affirm the President. As we lead up to a new election, they're going to again have another opportunity. But in the meantime, Jordan, that ninth seat on the Supreme Court, the American people have already spoken and the Senate has every right to proceed. We have a petition up at ACLJ.org.

We want you to sign. Remember, second half hour coming up. And Senator Cruz actually has a book coming out about how this one vote can change an election. He was part of the President Bush's legal team, and he talked about the dangers of this 4-4 issue and why it's that much more important to get a justice confirmed. Not because you know how they're going to come down on an issue of electoral law about different voting and how votes are counted, but because you want to have that odd number.

It's very important. You don't want to have circuit courts determining the outcome of a Presidential election. If it is any court at all, it's going to have influence on that. It should be the United States Supreme Court and justices who have gone through the process and been confirmed by the U.S. Senate to be Supreme Court justices.

We'll play that when we get back. We've also got a brand new petition about getting this nominee confirmed at ACLJ.org. Sign it today. Where you can learn more about our life-changing work. Become a member today.

ACLJ.org. We'll be right back. was on stage.

He didn't know about while he was speaking, and I think he gave off-the-cuff remarks that were the most honest, truthful, and human of any of these politicians who so many on the left went right to the politics of this. I don't want to go through that again. But you've got Congressman Kennedy out of Massachusetts who lost his primary challenge to get on the U.S. Senate, saying that if President Trump moves and if the Senate confirms, we're going to pack the court.

I tweeted back, please. Yeah, if Trump holds a vote in 2020, we pack the court in 2021. It's that simple. Or if McConnell does. Well, that's assuming that Mitch McConnell is up 15 points in his race in Kentucky. And by the way, assuming that the Senate is going to flip as well as, I guess, the White House.

Because, what are you saying, Congressman Kennedy, who will have no role in this whatsoever because you lost your primary challenge, but are you saying that you're going to give Donald Trump three or four more? Either way, they're not using their words very carefully. And they got a lot of lawyers looking at it. Be aware, members of Congress. Be aware.

We are attorneys. Words matter. And we're looking carefully at how you're writing your words, the threats that you're making. Because those threats will come back to haunt you. I guarantee it.

They will come back to haunt you. Because if you could do that, why wouldn't Republicans say, well, they're going to plan on doing that one day when they do get in power. If the Republicans still are in power after election day in the Senate and talking in January and President Trump is re-elected, maybe add three or four more. I mean, that was their plan. Let's take their plan and use it.

That's what they wanted to do to you, to us, to the American voter who put in this Republican Senate and Republican President. Let me grab a phone call. Let's go to Paul in Idaho on Line 1. Paul, welcome to JCEC. You're live. You're on the air.

Hello. On the point that you just made, the Democrats have pounded their chests and said that when they get in power, they'll pack the court. They'll pull an SDR, as it were.

And of course, that failed. So my question is, and you've alluded to this, but I'm not sure I quite understand. My question is how is the number of justices on the Supreme Court determined and can a President in fact nominate more than a number to be above nine? So right now, the number is nine.

It's changed over time. The Constitution says that Congress shall determine the makeup of the Supreme Court and the inferior courts. So that's the circuit courts and district courts and other federal courts that exist. We call it the Article III courts, if you will. The Article III courts that are set up by the legislative branch and those are the ones that get confirmation.

There are other courts. There are actually Article I courts set up by Congress on specific issues like taxes and things like that. But then, the truth is, it's up to Congress. Now, Presidents can veto it.

They can stop it. It hasn't been successful in the past, but nothing in the Constitution prevents them from changing how many justices are on the court. They just have to have the votes and a President willing, I guess, probably a veto-proof majority to change it. Yeah, it's a power that's shared between the Article I and Article II branches. Originally, Jordan, it was the Judiciary Act of 1789 that set the number of justices at six. And as you've mentioned, it's changed a number of times over the years.

It hasn't changed since 1869. The only editorial point I would make back to you, though, Jordan, is I think stability on the Supreme Court in this day and age is extremely important because if it turns into just a complete political football with the number of seats going up and down depending on what party is in power, which, by the way, Jordan, if they try that now, you're exactly correct. That is exactly what would happen.

It would change depending on Republicans or Democrats. If that happens, Jordan, you functionally do not have a third branch. Folks, we are continuing to take your phone calls. We've got Andy Kahneman. We've got Tham Bennett. I'm joining us.

Well, 1-800-684-3110. This pick could come as soon as tomorrow. It could come later today. Nothing is off the table. The President said it will be by Friday or Saturday and he said it definitely won't be until then. And Kayleigh McEnany said maybe Wednesday, maybe before Wednesday. So we're ready.

We can go through some of the potential picks as well when we get back on JCAC Live. The challenges facing Americans are substantial at a time when our values, our freedoms, our constitutional rights are under attack. It's more important than ever to stand with the American Center for Law and Justice. For decades now, the ACLJ has been on the front lines protecting your freedoms, defending your rights in courts, in Congress and in the public arena. And we have an exceptional track record of success.

But here's the bottom line. We could not do our work without your support. We remain committed to protecting your religious and constitutional freedoms.

That remains our top priority, especially now during these challenging times. The American Center for Law and Justice is on your side. If you're already a member, thank you. And if you're not, well, this is the perfect time to stand with us at ACLJ.org where you can learn more about our life-changing work.

Become a member today. ACLJ.org. Only when a society can agree that the most vulnerable and voiceless deserve to be protected is there any hope for that culture to survive. And that's exactly what you are saying when you stand with the American Center for Law and Justice to defend the right to life. We've created a free, powerful publication offering a panoramic view of the ACLJ's battle for the unborn.

It's called Mission Life. It will show you how you are personally impacting the pro-life battle through your support. And the publication includes a look at all major ACLJ pro-life cases, how we're fighting for the rights of pro-life activists, the ramifications of Roe v. Wade 40 years later, play on parenthood's role in the abortion industry, and what Obamacare means to the pro-life movement. Discover the many ways your membership with the ACLJ is empowering the right to life.

Request your free copy of Mission Life today online at ACLJ.org slash gift. Music We're going to take phone calls 1-800-684-3110 because I do believe that obviously it could be Friday or Saturday until the nomination is announced by President Trump. But I do want to go through just quickly some of the top contenders and maybe two more get added by tomorrow on the radio or President Trump's already announced by the time we're on the radio tomorrow. Who knows?

The truth is I think all of that is in flux as we speak. Don't put too much weight into Kayleigh McEnany saying it's by or before Wednesday or the President saying maybe Friday or Saturday. There are some days they're looking at because they don't want to step on Justice Ginsburg. Justice Ginsburg I believe will be buried today under Jewish law because it was Rosh Hashanah.

It wasn't as quick. If you finish the Rosh Hashanah holiday, so probably today, then there's memorial ceremonies. Now there could be some additional memorial ceremonies, like official government ones, like the Supreme Court, then Lion State and the Capitol. And so you want to be careful about that I think.

So that's why these dates are in flux. Be ready. Here's who I think you should be ready for. First, Judge Amy Coney Barrett. I think it's fair to say she's a top contender for this position and has been since talk of the next vacancy if it would be filled by President Trump if there was another vacancy on the court. She's on the Seventh Circuit right now. She was the one who was attacked by Dianne Feinstein as saying she was too religious, said the dogma lives loudly within you and that's a concern to me. She was a law clerk to Justice Scalia. She has stated that life begins at conception.

Okay, so that kind of answers one of those questions very clearly. And she's a Catholic, 48 years old, a professor, was a professor of law at Notre Dame until she was appointed by President Trump to serve and she was confirmed through the Seventh Circuit U.S. Court of Appeals in 2017. There's Judge Allison Jones Rushing. She sits on the Fourth Circuit. She was nominated to that position by President Trump. Clerk for Justice Thomas. And again, you know, actually was a law student interned at ADF.

So a very conservative organization. Again, one we know well. Of course the team over at ADF.

A lot of people who have worked for us before have joined ADF and vice versa. So there you go. Then Judge Barbara Lagoa. She is from Florida and Miami.

She's a Cuban background. She sits on the Eleventh Circuit Court of Appeals. She was nominated by President Trump just a year ago to be on the Eleventh Circuit but she still is on the list. Kate Todd, who is not a judge. She is currently the Deputy Assistant to the President and Deputy Counsel to the President. A Senior Vice President and former Senior Vice President and Chief Counsel of the U.S. Chamber Litigation Center. She was a law clerk to Clarence Thomas. And Judge Ludig on the Court of Appeals for the Fourth Circuit. She went to Cornell and Harvard. And then Judge Joan Larson is another one that is making the list.

And again, that list is long. I mean there's 40 plus names the President can choose from but he did say it's likely going to be a woman so you can narrow it down from there. Judge Larson sits on the Sixth Circuit. President Trump nominated her in 2017.

And she was a Deputy Assistant Attorney General in the Department of Justice Legal Counsel. Again, I think the President knows whoever he picks is going to be highly scrutinized by conservatives. And this is during a political time. Like it or not, there's a Presidential election November 3rd.

So it's going to be highly scrutinized. I think he's going to want to pick somebody that if you're going to go through this war, and that's what it will be. Prepare for war. Prepare for battle.

Full scale war. Leading up to an election, which is interesting because it's already like war, and then a war within the war. And I think he's going to want someone who is battle ready, but two who's been highly vetted by conservative groups. And so they are ready to get fully behind the nominee. Worst thing you can do is pick someone that no one really knows anything about and so they don't get really behind the nominee. And then I probably think that maybe the Senate isn't able to get together and actually get this done. So I think he's got to pick someone that motivates conservatives.

They put the resources, like groups like the ACLJ, behind these nominees. So I think, before I play what Senator Cruz said about this 4-4 split, which a lot of people are talking about, I think that with all of the talk about how political this and that, the President's choice here, obviously it's up to him. But he also knows he's up for re-election right away. It's got to be someone that gets conservatives excited. Yeah, absolutely. And that political component is a good thing, Jordan.

It goes back to what we've been talking about this entire broadcast. It gives the American people a voice in this process and both the President nominating and all of the Senators, especially those up for re-election, Jordan, are going to be sensitive to what the voters like. You walk down that list of five women who are on the President's larger list. Of course, he could nominate anyone from it.

I think it is very likely to be one of those five. Jordan, the four judges that sit on that list of those five, all of them have been very recently confirmed by the United States Senate, some of them in very recent times, where it was just as hostile. And you mentioned Judge Barrett.

Hers was a little bit longer ago, but hers was probably the most contentious. So I would say among the list, she's probably the most battle-tested of the list. But look, I think anyone on that list is a pretty known commodity in Washington, D.C. There will be a political test for all of them. Kate Todd, you know, having some ties to the President, that might play positively for some Senators, negatively for others.

But look, Jordan, again, I just want to draw it back to this. Sometimes we say it's all about politics and that's a bad thing. In this case, there being a political component to it, especially when it's divided between the chambers, that's a positive thing, Jordan, because it gives the voters more opportunity to have their voice heard, both with the President they elected and their Senators, many of whom are up for re-election. Alright, I want to play this from Senator Ted Cruz. I think it's very important. Listen carefully.

And I'm going to Andy Cahnemann for his thoughts on this. Listen carefully to Senator Cruz's, you know, just warning about this and why it's so important to get someone confirmed now. This is a topic, you know, 20 years ago, I was part of the legal team that litigated Bush versus Gore for George W. Bush.

I was a young lawyer then. In fact, I just wrote a book that's coming out in a couple of weeks called One Vote Away. How a single Supreme Court seat can change history. And one of the chapters there talks about Bush versus Gore.

It talks about the epic battle where Al Gore challenged the election results and for 36 days the country was held in chaos. Well, if Joe Biden does that again this year and we have an 8-8 court, an equally divided court, 4-4, can't decide anything. That could make this Presidential election drag on weeks and months and well into next year. That is an intolerable situation for the country. We need a full court on Election Day given the very high likelihood that we're going to see litigation that goes to the court. We need a Supreme Court that can give a definitive answer for the country. Andy, your thoughts on what Ted Cruz had to say.

He's absolutely right. This is going to be a contentious election. We're going to have all these mail-in ballots.

Allegedly due to the COVID coronavirus epidemic. There's going to be questions. Pennsylvania Supreme Court has recently said that you're going to count the ballot even if it arrives three days after Election Day.

If it was postmarked on Election Day, what does that mean? Well, how are you going to prove that? By a preponderance of the evidence, you're going to have challenges in multiple jurisdictions. And ultimately, my prediction is this year, especially just like in the Bush v. Gore situation, it's going to end up in the Supreme Court where you need a full complement of nine justices to make the decision, not a divided court. And who is my authority for that proposition, Jordan? Joe Biden. If you read his lecture that he gave to Georgetown University and the op-ed that he wrote in The New York Times, he says, we've got to have a full complement.

4-4 is not good for the nation. You have got to have a complete court that can decide these things on a complete basis. And the President has a duty to appoint and the President and the Senate has a duty to advise and consent. Now, of course, he's changing his position.

Of course he would. But I mean, that's who my authority for the President's action is right now. Joe Biden, who said that we need a full complement on the court. And Ted Cruz says what that could mean if we didn't have. And that could mean anarchy and chaos for an exceptionally long period of time. Yeah, I mean, Associated Press says, is eight enough?

Court vacancy could roil possible election cases. Let me take Jon's call quickly in Texas. And we've got, again, another segment coming up, so get your phone calls in 1-800-684-3110.

That's 1-800-684-3110. Whatever questions you have about process, I'd get them in right now. Because we might have a nominee tomorrow or Wednesday, and then the war is on. So get your questions, your comments in now. Is there a nominee you like most, 1-800-684, potential nominee you like most, 1-800-684-3110?

Jon, you're on the air. Yeah, thank you. My question is, why is everybody automatically assuming that the court is going to be going forward on a 4-4 basis? Well, I don't think it's assuming that in every case. But you have to assume that there could be monumental cases where there is a 4-4 split. So Jon, I mean, when there's only eight justices, they won't always be 4-4.

But you're setting yourself up for, because you've got an even number, a 4-4. And what that means under the rules of the court, the federal rules procedure, is that the lower court ruling stands. You'd be letting, if there was a major, let's say there's lots of election law cases in the court, and three, it was fine, they were 5-2.

But one was 4-4. That means the circuit court, lower court judges would go back to them and their decision. Could be deciding the outcome of a Presidential election, potentially.

You don't want that. If the Supreme Court has to weigh in on election matters, and I hope it doesn't, you need to have nine justices. You need to have at least a five-vote majority.

You shouldn't be letting circuit courts decide. That's the problem. You put that risk into place. Not assuming it, it's just there. The risk is there.

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Welcome back to Jay Sekio Live. I think, you know, we have to talk about this unique situation as well. We get a lot of questions about, you know, what would it be like if you had a 4-4 Supreme Court and these election issues come before the court on ballots. And it might not be as clear cut as just what happened out of Bush versus Gore where it was really originating out of one state. But what if it was happening all across the country? And I want to go to Andy O'Connor on this because Andy, in that case, because it had gone through to the state Supreme Court, there was ability for the Bush campaign or I don't know if it was the Bush campaign or the Gore campaign at that point.

I think it was the Gore campaign had lost. So they appealed directly to the Supreme Court. You can go from the state Supreme Court. In this case, if this matter were to happen, you'd be having a situation where the right court to go to if it was a 4, you know, you had 8 justices, would still be the Supreme Court. But would you potentially go to a circuit court instead because you think the Supreme Court could be divided? Well, I think you might have a question of choice of form at that point. But I think you would probably go from the highest court of a state, if it is that way, to the Supreme Court of the United States, which would have jurisdiction to hear a decision from the highest court of a state.

So rather than go to a circuit court, I think it would go to the highest court of a state. But again, I, you know, it just confirms my position consistent with our Vice President, former Vice President Biden. The American people deserve a fully, I'm quoting him, fully staffed Supreme Court of nine, not one disabled and divided.

Yeah, take a listen to him. We've got it, Andy. We've got Joe Biden. We agree with his position and Andy agrees with his position.

Take a listen, everybody, because here, here it is on Jay Sekio Live, our agreement with Democrat Presidential candidate Joe Biden. The American people deserve a fully staffed Supreme Court of nine, not one disabled and divided, one that's able to rule on the great issues of the day. Race discrimination, separation of church and state, whether there is a right to an abortion, if so, safe and legal abortion, police searches.

These are all actual cases before the Supreme Court of the United States, before the courts. I mean, that statement could literally be this year, Andy, I mean, you think about it with the talking about the police issues and Roe versus Wade and, you know, all the fairness and equality and this and that. I mean, it was, it was back in, I think this day was back in 2016 or 2016 at Georgetown during the Merrick Garland situation. And he didn't like the outcome there, but that shouldn't change how he views the role of the Senate. I mean, you know, unless he wants, unless he's going to agree with Mitch McConnell, I would take that. And he agrees, he could switch his position and say, but I agree with Mitch McConnell, you know, if it's different parties, maybe I was wrong. Maybe I was wrong then that now I see that, like, you know, if it's Republicans in charge and there's a Republican President, you know, I'm wrong.

Maybe they should, you know, should they always be confirmed or only be confirmed when it's a Democrat President? I mean, he's got to clear himself up there because he can't have it both ways either. Well, he likes to have it both ways many times. So, you know, he wants to have it one way today and then the next day when the political climate changes or something happens, he wants to change his mind. But this is etched in stone. He also said the same thing into the New York Times.

We need a full complement of nine. Look, he was chairman of the Senate Judiciary Committee. He knows, he knows the Senate procedure. He knows the rules. If the shoe was on the other foot and there was a Democratic President and a Democratic controlled Senate, I guarantee you they'd be nominating someone to fill Justice Ginsburg's vacancy on the court. Absolutely.

I want to go back to this. This is our 2016 blog we wrote at the ACLJ. It just confirms our position hasn't changed at all.

The numbers may have changed. The makeup of the U.S. Senate may have changed, but our position hasn't. We wrote this at the time at ACLJ.org back in 2016. While the Constitution assigns to the President the role of naming a nominee to the high court, invest in the Senate a co-equal role in this vital process. No nominee may be confirmed without the Senate's advice and consent. It is the Senate that has the constitutional right to act or take no action at all on a President's nominee.

And that's what everybody's in agreement, I think, on that, Than. And that's the key point is that it's up to the Senate. They can act or take no action at all. Jordan, if that were not the case, the Senate would not have a real role. If the Senate's role under the Constitution is to mean anything, they have to have the freedom to go either direction. They have to have the freedom to affirm if they want.

They have to have the freedom to reject if they want. It is a power that resides in the Senate once the President has nominated. And look, again, I know I sound like a broken record, Jordan, but I really do think this is extremely important. There's a very important reason for this. It's because the Senate does not belong to the politicians.

I want to say that again. The Senate does not belong to the politicians. It belongs to the American people and the voters who put that Senate there. So in the case of 2014 and in the case of 2018, one of the issues that was at stake in the election is whether or not the American voters wanted to affirm or provide a check on the President.

In both instances, the American people spoke out, they took control of the Senate, and again, the Senate under the Constitution can make either decision, Jordan. They can take the nomination up and they can confirm it, or they can decide to reject it and ask for another nominee. Alright, folks, we're going to, again, continue to take your phone calls at 1-800-684-3110. I want to get as many calls in as I can, so let me cut to Roger, Minnesota line 3. We've only got a couple minutes left on this broadcast today. We're going to stay on this, of course, every day this week, probably, including when there's a nominee announced. Roger, welcome to Jay Sekio Live. You're on the air.

Thank you for taking the call. I thought I came across something where Pelosi said that she is going to try to impeach Trump or call for impeachment again. And I was wondering what the panel thinks.

Is this going to be a hindrance to the procedure? Impeach for what? And how can she get away with it? She held it out there. So, like, George Stephanopoulos, I don't have time to play the whole bite. George Stephanopoulos, she was on ABC on Sunday and said, would you impeach the President even?

Or maybe a Terry Jill Barr just to slow this down? And she said, I'm not going to put away any of my possible arrows that we have in our quiver. So, instead of saying the right thing, which is no, you don't impeach because you don't like the constitutional rights that a President has to nominate and the Senate has to confirm or not confirm, take action or not take action. You don't impeach because of that. She left it open.

So, that's why you're hearing that, Roger. She didn't say no to that question. Let me take the final question of the day. Dawn in Virginia online, too.

Hey, I appreciate you guys. Listen, I want to know if the election, with all the shenanigans that are happening, on January 20th, if the President is not, you know, if he doesn't, if we don't know who the President is, is Nancy Pelosi going to take power on January 20th? And if we don't have a Supreme Court? Well, I mean, here, let me, let me say so, like, is that potential?

It's a potential. I think there would be a lot of pressure on that 4-4, the Supreme Court of 8. Let's stop saying 4-4. The Supreme Court of 8, it could potentially be 4-4.

There'd be a lot of pressure to figure out how to get to, you know, like the 5-3 because they would know the consequences of a 4-4 split would just leave the country hanging. That's why, and I don't want any justice to be in that position where they felt like they had to do something they were against just because they didn't want to leave the country in a way, I mean, they should have the full court. We know this one could be litigated heavily. So, again, let's get it full court. Sign our petition at ACLJ.org.

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