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Pick. somebody like anthony kennedy. joining me now, misha, a law clerk for justice kennedy. currently the wisconsin solicitor general. respond to my commentary. i'm, of course, taking issue with the timing of the justice's departure. >> thank you so much for having me on. i think i would disagree with your characterization, obviously, justice kennedy served for quite a long time. one of the longest serving justices in this country and he well earned his retirement. with regard to the kind of replacement that president trump is likely to name for justice kennedy, we really only have one data p...

Murkowski can't support, then mcconnell is in trouble. still, the midterm map, it favors republicans. of the 49 seats held by the ds, more than half, 26, are up for re-election this year. among seats held by republicans, only 9 are. and so the democrats need to win 28 of the 35 seats that are being contested this year to take a majority of the senate. and that's a steep climb. here's my point. had justice kennedy waited a few more months, he would have empowered the nation to decide the next nominee instead of facilitating what will probably be a rubber stamp. and by leaving on the republicans...

Starts. >> given how narrowly divided the senate is and given the emotional issues decided by the court, should the president reach out to democrats, reach across the aisle and have this conversation about selecting someone that might be more of a consensus pick? or should he take a pick from his list and say take it or leave it. >> if i were king for a day -- i'm not. i don't aspire to be. what i would do, and i wouldn't be surprised if the president does this, say look to the members of the u.s. senate, and house, and anybody else, season me your ideas. send the resume. if you feel strongly ...

Same-sex marriage to have -- not to be stopped by an undo burden to make a choice about reproduction. he found that essential american liberty that we treasure. do you count on anybody trump picking doing that? >> there is a way that that can happen. and that's bring a consensus pick. that's what happened with merrick garland. >> a pro-choice conservative. >> president obama consulted with republicans. this president should consult with democrats and choose a consensus pick. anything less than that would be unacceptable entirely unacceptable and something we should fight tooth and nail against...

The campaign. and we know that the investigation is not example of the everyone who's talked about this or briefed on it has said there's more to do, and we're pursuing this investigation. bret: mollie, let me ask you about the democrats, they're going to move on something, stand united and say special prosecutor or we're not moving forward. they're going to do a host of things probably starting tomorrow into tuesday. >> obstruction has worked out well. at the same time, i'm not sure if that's the most brilliant idea because i think republicans would like to see a consensus pick, they would li...