BILL O'REILLY (HOST): Factor follow-up segment tonight, replacing Justice Scalia at the Supreme Court. As you may know, Mr. Scalia passed away last month, so there is a opening at the -- America's highest court level. Today President Obama nominated 63 year old Merrick Garland, a federal judge in Washington, D.C., to fill Scalia's position. An analysis of Judge Garland says he would be expected to align with the liberal members of the Supreme Court, therefore his nomination is doomed because the Senate, which has to confirm a Supreme Court justice is controlled by Republicans, as you know. With us here in New York City to comment Kirsten Powers. So would you agree with that, doomed?
KIRSTEN POWERS: Well, I think it's doomed but not because of who he is. I think it was doomed anyway because the Republicans already had said no matter who you send up here we're not going to take it up. And he is actually pretty moderate, so the fact that he would align with the liberals, okay, but he is expected to be, I think, more of a moderate type person.
O'REILLY: Yeah, but did you see his gun control record?
POWERS: Okay, so, fine, he's --
O'REILLY: That's it.
POWERS: That's not -- But he doesn't -- you know, President Obama is a Democrat.
O'REILLY: No, no, no. I'm not saying anything about President Obama.
POWERS: No, but he gets to nominate somebody who is a Democrat.
O'REILLY: But he would never pass a Republican senate.
POWERS: Look, in 2010, Orrin Hatch called him a consensus nominee.
O'REILLY: Fine.
POWERS: This is not somebody who is some crazy left wing --
O'REILLY: He's not some crazy left-wing bomb thrower. But he voted, so the folks know, in Washington, DC to keep guns away from private citizens, and the Supreme Court of course said no, that is unconstitutional. But he voted to keep the guns away. Just that vote, and you must know this, alienates most in the Republican Party, so they never would vote to confirm him.
POWERS: But that's not how it's supposed to work.
O'REILLY: I understand it's not supposed to work that way.
POWERS: It's supposed to be the president chooses somebody and Congress has that person come before Congress and let's them -- you know, vets them and decides whether or not he's qualified.
O'REILLY: I'm just telling you it would all be a waste of time, that vote will disqualify him among Republicans. And you know it's a shame, because the guy has good votes on Guantanamo Bay, he has good votes on criminal justice. But, once you get into that, you know, advocacy position that guns have to be kept away --
POWERS: That's not an advocacy position--
O'REILLY: Sure it is.
