About Justice Scalia. Here to talk about the success that the Trump Administration has had in nominating and appointing personnel to the federal bench. Whats the tally, whats your tally so far, how the president s doing . Guest its been a very impressive record so far. I think folks on both sides of the aisle can agree on that. Some of us celebrate it. Others lament it. But you have, in addition to two Supreme Court justices, you have some 43 appellate judges. Judges appointed to the courts of appeals. Thats double the number where president obama was at the same stage of his presidency. Eight years ago. Another judge to be confirmed today, i think, another one tomorrow. And you have 100 or so district judges. Slightly ahead of president obamas pace of eight years ago. Host we understand President Trump will be celebrating this today or at least noting it at the event at the white house. The headline from fox news, trump nears milestone, new milestone with judicial appointments. Aside from the obvious advantage in the u. S. Senate, the majority in the u. S. Senate, whats been behind this success rate of the Trump Administration . Guest there are a number of factors. President trump and the white house deserve credit for making this a high priority. I would say a huge factor was thenmajority leader harry reids abolition of the judiciary filibuster in 2013. What this meant is that if you have control of the senate, you dont need any votes from the other party. Democrats had launched the filibuster against president george w. Bushs appellate nominees in 2003. Republicans under obama returned the favor to a much lesser degree and harry reid said, enough, abolished the filibuster. That means you can get to a final vote on these nominees without clearing the 60vote threshold. Host looking back to the appointees from the bush administration, clinton, clinton, bush and now the Obama Administration, and the numbers that President Trumps first four years, or first three years of the white house, can one look at those judges appointed by president obama, president bush or president clinton and say, well, these were clinton judges or bush judges and they rule typically in this sort of fashion . Guest well, thats a big question. It would take a lot of study to explore that. I think there are issues on which differences of judiciary philosophy really matter. A lot of cases what you want are good, smart judges. One thing i emphasize about President Trumps appointees to the federal Appellate Courts is they are very, she high caliber. They have anent very, very highle caliber. They have excellent ratings and a great deal of experience. Its not just the numbers, its high quality. Host what has he also benefited from the fact that just as a matter of time, judges age out of the circuit and that theyre more theres more availabilities on both the appellate and circuit level . Guest that happens for everyone so i dont think thats been a big factor. One factor thats been overlooked is really what id call the maturation and the flourishing of the conservative legal movement. If you compare the number of candidates who make themselves available in this administration to what president bush had, the numbers are vastly greater. Part of that is because of the filibuster. I can make myself available and get confirmed promptly rather than having my practice tied up in limbo for years. But a lot of that also is that you have generations of law students who learned about textualism and originalism from the opinions of Justice Scalia and thomas who network through the Federalist Society and who had great clerkships, worked as solicitors general in their states, or as a state Supreme Court justice, argued Supreme Court cases. Folks of unquestionable qualifications. Host our guest is ed whelan. Were talking about the Trump Administration judiciary appointments, hitting a milestone. 2027488000 is the number to call for democrats. 2027488001 for republicans. And for independents and others, 2027488002. President trump will be at the white house today, an event on judiciary nominations. That coming up this afternoon. Well cover that live here on cspan. At 3 00 p. M. Eastern. Reporting on what may be ahead, what the impact of the president s picks may be, pbs with the headline, trumps conservative picks will impact the court for decades. They write that the house impeachment inquiry has brought most legislative work in congress to a halt. Except for one issue. Judiciary nominations. Senate republicans have continued making steady progress filling the federal bench. Bolstering President Trumps record on what is regarded as a key issue for republican voters. One that could play a significant role in the upcoming president ial election. Paul butler, a professor at georgetown law saying that President Trumps impact on the federal judiciary has been profound. Quote, if theres a contest about the future of law, of judiciary interpretations, republicans have won. Generaly, how would you describe the judiciary philosophy that the Trump Administration has looked for in its federal nominations . Guest basically theyre the principles of tectualism and originalism which simply put mean that the words and laws matter. The provisions of the constitution, including the amendments, should be interpreted according with what to what they meant when they were adopted. The same for laws that are enacted today or 40 years ago. Its really a focus on text and applying text neutraly and impartially and not indulging ones policy preferences as the alternative favored by the left. The theory of the socalled living constitution invites judges and justices to do. Host we have calls waiting for you. Well go to sandra in alabama, on the independent line. Caller the thing i have, especially with the Supreme Courts and these lower courts, like if President Trump wants to do something, they hold him. I know it took just one woman to change the whole Supreme Court concerning bible reading and prayer in schools. One woman. And i see all these activists out who are paid to be out there, if all we people could be out there at the same time, youd see less than 1 10 of the population thats out there showing theirselves, we have no way to fight. No way at all to fight. And the Supreme Court to me has caused this country to go downhill because they brought in abortion, they took prayer out of school and america is reaping the benefits of it now. We have a godless country. So thank you very much. Host ed whelan. Guest i think its true that the Supreme Court has been a major player in the culture wars and i would argue an aggressor in the culture wars. Imposing on, over the decades, on issue after issue, the policies preferred by certain elites, and taken these matters away from the democratic processes in the states. So i think that is has been a big part of the problem and has explained the escalation of the judiciary confirmation wars. Host to our republican line, this is heath in camp hill, alabama. Caller yes. Mr. Whelan. Host go ahead. Youre on the air. Ask your question go. Ahead. Were listening. Caller i do have one thing id like to ask mr. Whelan. Does mount kisko mean anything to you . Guest i believe theres a case with that name. But i cant its a city in new york, i believe. Im not sure i can tell you anything more about that. Caller i just thought maybe you folks owned a moving company. Guest nope. Host all right. To nancy, concord, new hampshire. Democrats line. Go ahead. Caller hi. Im just really curious about this broken system. Because Mitch Mcconnell denied barack obama a hearing for merrick garland. You stand on the constitution and this judiciary stuff, yet you smirk and turn your back on the constitution when the democrat is in power. These judges are being written about being unqualified, totally unquailified, and theyre getting lifetime positions. How do you justify that . Thats not democracy in this country. And thats not what our Founding Fathers expected. The punitive rulings, i mean, john roberts is going to go down as a disgrace to chief justice because of the way hes running his courts currently. I mean, look at whats happened with the voting rights. The Voter Suppression thats gone on. You dont talk about that. And your judges are happy about it. Host ok. Ed whelan . Guest theres a lot there. Let me address the first question. The caller of course is right, that senator mcconnell kept the scalia vacancy open through 2016. I think shes wrong to suggest that there was any constitutional obligation to do otherwise. What senator mcconnell did in 2016, basically been baked into the cake in the process, so to speak, for decades. Joe biden threatened the same thing in 1992, if a vacancy arose then. Senator schumer and reid said the same thing in 2007 and 2008. This was the same vacancy since Clarence Thomas was nominated in 1991 in which you had a president of one party making a nomination to a senate controlled by the other party. Exactly the configuration that invites conflict and what happened was entirely predictable and president Obamas White House counsel, an event in which i took part with her, said that she would have recommended the same thing, had this situation been reversed. Host what if theres an opening on the Supreme Court of vacancy in 2020, what should senator mcconnell do . Guest hes been quite clear what hell do. Hell move expeditiously to confirm that nominee. You would not have the oppositeparty situation which was critical to the situation in 2016 when he said, let the voters decide, because we have a split situation. Under this hypothetical, you dont have the split situation. Host senator mcconnell joined President Trump onstage in louisville on monday night at the Campaign Rally there. And touted the success rate so far in the senate. Of judicial nominees. Heres what he said. Working together we are changing the federal courts forever. [cheers and applause] nobodys done more to change the court system in the history of our country than donald trump. Cheers and applause] and mr. President , we are going to keep on doing it. My motto is, leave no vacancy behind. Host Mitch Mcconnell says we have changed the federal courts forever. Judicial philosophy . Structure . What do you think he means . Guest well, i think its judicial philosophy. First and foremost. I think hes referring especially to the appointments of Justice Gorsuch and Justice Kavanaugh to the Supreme Court. In the lower courts theres been a great start. The fact of the matter is 43 federal appellate judges whom President Trump has appointed amount to 1 4 of the total of active judges. And 1 5 of the appellate workload. Its not transformational yet. But its a great start. Theres a lot of room for more appointments if President Trump is reelected. Host hear from rebecca, republican line, michigan. Hello. Caller good morning. I have a question for you. And i have a couple of comments. Do you feel that the American People are ideaologists . I heard the news that the American People, if you do not have a College Education and goal to be a lawyer, doctor that we, the middle class, would be consumed as ideaologists. Up s a democrat for years until all wait through obama. I voted for trump. Because back in the day when i grew up i thought democrats were for the poor and the middle class. Thats what i was taught in michigan. My family from down south was republican. And they said you are too young to understand the politics. Host thats rebecca in michigan. Are the American People ideaologists is her question . Guest im no political expert to be sure. I would like to think the American People have a deep commitment to american principles, how those principles play out is contested. I would hope that we always look back to those principles and principles of liberty and equality, and argue in a civil way how they ought to play out. I think there are lots of folks who have a sense they have been left behind and abandoned. I think that that is a problem that many folks have not been eager to address. Host we mention the president will note the judicial appointments at an event in the white house today. Cspan will cover that, 3 00 p. M. Eastern. Writing about the numbers so far, thomas of the Heritage Foundation and nashville review wrote this yesterday. Today, the senate takes up the next group of judicial nominations, including two each to the u. S. Court of appeals and u. S. District court. Heres the tale of the confirmation tape when they are confirmed. With these confirmations trumps judicial appointment total will be 161, or 18. 7 of the life tenured federal judiciary. The previous five president s appointed an average of 16. 7 at this point. Trumps percentage is higher than obama, bush 41, and reagan. And below bush 43 and clinton. We are with ed whelan talking about the federal judiciary and success rate of the Trump Administration in appointing confirming nominees. We go to patrick, woodbridge, virginia. Democrats line. Caller good morning. Its my understandsing that the American Bar Association has basically given f grades or unqualified reviews to several of trumps judicial nominees. Yet they still get passed. Lso im also i also think that usually a senator from a state or a judge is nominated from usually has to give their support to that judicial nominee. Theres been several that have not had that. After the 2020 election, lets say the democrats take back the senate and the white house, can they begin impeaching some of ese unqualified conservative activist judges . Thats my question. Guest well, the caller is right there have been a very small number of nominees who have received the not qualified rating. The a. B. A. Itself has emphasized how high its ratings have been for some of the nominees. There are a couple instances in which the ratings seemed to have been idea locally biased. That said the overall picture is very high ratings from an organization that is not known to be favorable to conservatives. On the question that the caller raised about home state senators power over nominations this is the socalled blue slip policy. What this means is that home state senators have been given a special say over nominees to district judgeships, u. S. Attorneys offices, and for significant period of time to appellate judges whose chambers happen to be in their states. I think the blue slip policy is best defended on the ground that no senator wants to see his political opponent presiding over his corruption trial. I think therefore has greatest force with respect to district judges, as well as u. S. Attorneys who would be bringing these prosecutions. The fact of the matter is appellate judge has no particular connection to a state other than the minor fact of the chambers being there. As happened in late 2017 then Senate JudiciaryCommittee ChairmanChuck Grassley made clear he would no longer allow the socalled negative blue slip on judicial nominations for appellate seats to be used as an idea local veto. He would continue to allow it to ensure consultation. This is a demotion of what the blue slip had been in recent years but restoration of what it had been earlier with respect to appellate judges. The blue slip remains in place for district judges. Thats why youll see in blue states, states with two democratic senators, its been difficult for the white house to strike deals that some of these senators will go along with. Other states, including blu states, there have been deals struck. The home state senators retain special force and influence with respect to district judges they dont have with appellate judges. Host loss leading the who is leading the effort in the white house and what organizations in identifying potential judicial nominees . Guest in the white house, white House Counsel, don mcgann, for the first couple years, now pat and his team, have led the way on making picks. I think they received information from on all sorts of folks. Host william next in manassas, virginia. Independent line. Sorry, william. Youre not there. Try that, william, manassas, virginia, go ahead. Caller im here. Good morning. My question to your guest is when he is saying about the iginal, kind of a little confusing here. The law has been in the book for the people who wrote the constitution mainly there were a few white men, no women, no africanamerican, no hispanic, no american england where the the who drafted constitution. How is that ever changing society now would be governed or being ruled by a law that has or only siding white men drafted by white men . Im just taking my question off line. Thank you. Guest well, the callers point i think is an argument against the constitution. Not originalism. Hes saying how can we accord legitimacy to this document that was adopted by a bunch of white men. Again if he wants to go to work against the constitution on that basis, thats his prerogative. I think a lot of folks have seen the wisdom and genius in the constitution and are grateful for what its provided this country. What originalism says, let me give you one example so people understand what this means. The provisions of the constitution are to be understood in accordance with what they meant at the time they were adopted, including the amendments. Take the provision that says in order to be eligible to be president you must be a natural born citizen. What does that mean . The present controversy over that. Virtually everyone understand we have to understand what it meant at the time it was adopted. We dont ask ourselves what does natural born seem to mean today . Natural childbirth . People would dismiss as ludicrous that inquiry. Thats the same insight that originalists say ought to apply to all provisions of the constitution. As well as to provisions of statutes. Host st. Paul, minnesota. This is lawrence on the independent line. Caller good morning. Quick question. Cspan held a presented a Supreme CourtJustice Beyer about a year and a half ago, he had some statistics on the Supreme Court rulings. I know im going to be slightly off. It was like 60 of the rulings are 90. 30 were 54, but never the same 54. And the rest was somewhere else. When i hear the media talk about a divided court, or when i constantly hear the media talk about conservative justice, liberal justice, and i look at those statistics, i would like your take on why the media doesnt look at the breadth of the Supreme Court rulings when it tries to frame how the Supreme Court rules. Thank you for your time. Guest i dont want todirnl not ordinarily in a position of defending the media, i think the fact of the matter is on high ofile cases of ideological ideas, you are likely to see a divide. I think its fair to point those out. There are a lot of cases the Supreme Court takes that involve difficult, nittygritty issues here ones ideological preferences dont come into play at all. And those with account for many of the unanimous decisions. Whatever their ideological preference is people will recognize what the law is. I do think there is something to the callers point that there is more unanimity among the justices. But there is a deep divide on cases that have ideological bounds. Host your take on an article in the Washington Post today that looks at senator excuse me, chief Justice John Roberts impeachment trial to be a test for the chief justice already assailed by trump. History provides only two examples of a chief justice presiding over impeachment. Sol man chase over Andrew Johnson in 1868. William rend quiss was in charge of president clintons impeachment proceedings in 1999. Neither president was convicted. Which requires a 2 3 vote in the senate. The only guidance the constitution gives is, when the president of the United States is tried, the chief justice shall preside. That is to avoid potential conflict of interest because the Vice President , usually presides over the senate, would theoretically benefit from a president ial ruling from office. According to don richie, long time senate historian. What do you think john roberts would bring to a potential impeachment trial . How is he viewed . Guest well, i think hes viewed as a very fair judge. He was a law clerk for then associate justice rend quiss rehnquist. He would take the same minimalist approach to the role that chief Justice Rehnquist took in the clinton process. I think he would try to keep it very low profile and keep things moving expeditiously. Im guessing its not a task that he looks forward to. Host do you think he would wear the robes with the golden stripes on the sleeves . Guest he hasnt done that on the bench. I dont think he would do that in the senate chamber, either. Host lets go to detroit on our democrats line. Go ahead. Caller good morning. I would like to speak about how tch mcconnell and the g. O. P. Trump party are stacking the courts, they need to tell the people, are stacking the court to keep the 1 in control of power. How do we correct that . Thank you. Have a blessed day. Host well hear from do you have a response . Guest i dont think its a matter of stacking the courts. There are vacancies that arise. They are being being filled reasonably expeditiously. There is open debate. Thats our process. I dont think this is a matter of serving the 1 . I think this is a matter of finding judges who will enforce apply the law consistent with principles of texualism and originalism. Host to mark, maryland. Republican line. Caller good morning. Mr. Whelan, im curious about the data on the diversity of the appointments. I believe the host indicated at trump has confirmed 161 judges. My recollection is that president bush appointed about 20 africanamericans and hispanics. I believe that President Trump has only appointed two or three. Im curious what your response is to that. Do you think that thats really representative of what trump should be doing in terms of diverse filing the bench. Guest well, the question of the role of diversity in judicial appointments is interesting and a complicated one. I think the caller is right that below numbers are president bushs. At the same time it seems when President Trump does nominate a minority or otherwise diverse candidate, there is a special vitriol that the left has for that nomination. I think there is a game going on here when hes criticized on diversity grounds. That is the very folks criticizing him tend to attack the diverse candidates. Host we talked about the change in the fable in 2017. The change in the blue slip rules. That you talked about in the Senate Judiciary committee. Brian was a guest, from demand justice, was on our program a couple weeks ago talking about the process change in the u. S. Senate. Want to play his brief comments and hear what you had to say. Custom called the blue slip where both home state senators were to return their blue slip to indicate positive support for the nominee and only then would the Committee Chairman move forward with the nomination. In keeping with their bad faith approach to governing, the Senate Republicans would make a habit of not returning their blue slips for people that barack obama nominated for people that happened to be from red states. Patrick leahy was the chairman of the Judiciary Committee had the power to look the other way and proceed with Barack Obamas nominees or he could kowtow to the republicans that were vetoing Barack Obamas nominees. He chose to kowtow to the likes of ted cruz and john cornyn. For many years, all the years that Patrick Leahy was head of the Judiciary Committee, none of Barack Obamas from red states would ever be considered this. Might have been a good policy if the republicans honored it and reciprocated when they retook the majority and democrats were then in the position of advising on President Trumps nominees. But lo and behold what has happened . The republicans have decided they dont care about the Senate Courtesy anymore. They are not honoring blue slips. Host brought up a perspective on the blue strip issue. Guest im not going to get into an argument between brian and senator leahy. There are fundamental errors there. The blue slip remains in full force with respect to district judges. That point seemed to have been left out. With respect to appellate judges its true there has been a demotion of the force of the blue slip and restoration what existed before senator leahy. Again, if brian wants to criticize senator leahy, im not going to get in that fight. Host which court of appeals, Appeals Court in the federal system, has the has President Trump been able to appoint the moats just most judges to . Guest the answer is the ninth circuit where hes already appointed six or seven. Another one likely to be confirmed today. Two more in the pipeline. The ninth circuit has been notoriously the most liberal court in the country. After the panel has ruled, there will be a process where the losing party can ask for the court to reconsider and at that point, the court can vote to hear it. There is a limited Panel Procedure that would sit on that hearing. The appellant could i pass that and then head to the Supreme Court. The only reason trump has been around so many federal judges is because the democrats in nevada senator harry reid invoked the socalled Nuclear Option and changed the rules of the senate and made it a lot. Asier the did not understand what consequences would be of what they were doing and i think they are making the same mistake again with this impeachment charade. I dont think they understand the Collateral Damage to our democratic system. The only thing that holds our together is aty willingness to accept respect of the results of our elections and it seems that the democrats feel like they are entitled to overturn the results of the last president ial election regardless of how the people voted and it is unfortunate because i think what they are doing is going to have adverse consequences not only for them, but the entire country. I think he is very right. This is one of the key factors paving the way for the confirmations. Theres no way that the Supreme Court filibuster would have been theished in 2017 had groundwork been laid as a filibuster for the lower court for harry reid back in 2013. It is easy to ask yourself how many of these nominations would have been confirmed if democrats still have the filibuster . Make themselves available as nominees . Typicaldea on what the timeline is for a judicial nominee in the Trump Administration versus and obama nomination . At think theres a difference between appellate judges and district judges. Democrats have continued to try to obstruct the confirmation on led senatorich has mcconnell in many cases, they already are judges. They can continue with their work. Privatees, if youre a practice, my have to bring on , but they can continue what theyre doing what they are doing. You could easily add six to eight months. My question is how can the Second Amendment when it refers to the militia, is that different to article one, section eight . In your own words, i would like you to explain how those are different. That told have to leave others to address. On twitter, he says elections. Ave consequences the president has every right to nominate judges to the Supreme Court and the Appeals Courts. Obama stacked the courts with a bunch of liberal judges. The rule against everything that President Trump does. Is there evidence of that . That the judges appointed by the Obama Administration have ruled against the Trump Administration . Guest i think when you look to a lot, especially the District Court injunctions, a lot has been by president obamas appointee. I dont have the numbers here, but i think youll see in ideologically charged cases there is that big difference between president obamas appointees and president bushs or President Trumps. Host eddie in massachusetts on the republicans line. Caller good morning. I understand the ruling that the same president cant be taken to a civil court. I can understand it now that what would happen the opposition would find all sorts of infractions against the sitting president. Jay walking or something of that nature. But now i can see in the federal basis the same thing. That Mueller Report spent two years. I got the democrats elected in the 18 election. I can see the farce. Something should be done to eliminate these false accusations. Thank you. Host ok. Final thoughts. Guest let me just again speak generally about the judicial confirmations. I think we have seen outstanding candidates selected and confirmed, appointed. These are judges that i think the American People can be very proud of and happy to have who will be faithful to the law and will be blessed to have them for hope decades to come. Host from the ethics and Public PolicyCenter President ed whalen joining us. Thanks for being here. What picture from the easy death live picture from the ether live picture from the east room. Way tosident is on his reaching a significant mark in his presidency. The several potential appeals judges. Out of 179, 43 are occupied by trump picks. You can read the rest of the oxnews. Com. F while we wait for President Trump to arrive, after this event he will be heading to a Campaign Rally in louisiana. Live coverage starts at 8 00 eastern and he will be able to Fund Coverage on cspan. Org or listen with the free cspan radio app. Earlier today, adam schiff told reporters that the First Republic the first public impeachment hearing will take wednesday, november 14. You will be able to watch those. Ive on cspan at 10 00 eastern still waiting for president. Rump this afternoon when he arrives, he is expected to talk about federal judicial nominations. We will have a live on cspan. Conversationme, this morning from the washington journal on the impeachment inquiry. In this stage of the process, how would you compare it to the clinton impeachment . In the clinton impeachment case, this stage is gathering of evidence was not by congress. The factual material largely arrived to the house of representatives from ken starr and so Congress Needed to do of its own investigative work. When we hear about interviews and depositions, that piece that the house is doing is a different set of circumstances. Agoou wrote a couple weeks that this is the letter that the white House Counsel sent to Democratic Leaders on the hill before the house passed its impeachment resolution last week. What was the truth that you are getting out . Trying to make clear that the process argument that many republicans make is not necessarily to make changes to the process, but really to cast as what are the president s rights, process rights and shift the