Guest well, the R Street Institute is a fabulous Public PolicyResearch Institute in washington, d. C. Many people may never have heard of it. It is relatively new as far as think tanks in washington, d. C. Go, and it really is extraordinary. It explores solutions, Pragmatic Solutions and its motto is free markets and real solutions, and its not overly ideological, and it really tries to take a step back and look at whats not working in our policies and our society and why havent we figured out how to fix it. Fix. Thats what i do there at the governance department. Its a really great place. To go toge you the website and check it out. I work in the center for over a decade i love the institution and i wept like a baby when i left my last day. I probably shouldnt say that a National Television but on its worst day, the senate is next ordinary institution. When i was there, i ran the Steering Committee for a number of conservative senators, mike lee was the chairman when i left and pat toomey was the chairman prior to him. As also the registered legislative director for jeff sessions. Host we seem to be on the cusp of another Bruising Supreme Court confirmation fight. How did we get here again . Guest it certainly appears that way. I think many people expected that this could at least happen when Justice Ginsburg died. When the news was announced, it was a mad scramble. My own feeling was we should have taken longer and reflected on her before jumping 30 seconds later to how it will play out in the senate. I think we have all been waiting for Something Like this either for Justice Ginsburg or any other justice. There is an election coming up. The majority leader of the senate, Mitch Mcconnell and other Senate Republicans have made it clear that if this were to have happen, they would try to push a confirmation through the senate. We have been talking about this for a while now. Its not entirely unfamiliar. Host have we seen a situation similar to this in the past where a justice is being replaced within months of an election day, this close to an election day . Is this something we have encountered before and is there a precedent for the situation . Guest there isnt in the modern era. Democrats have criticized republicans as well as others for something they think is unprecedented. I would suggest it is unusual. Mid19 70s, according to the Congressional Research service, the average number of days between nomination and confirmation vote for Supreme Court justice is a little bit over 69 days. Right now, we have 38 days by my last count starting tomorrow before the election day. That certainly is less than the average number. However, if you go back to the beginning of the republic in 1789, its not unprecedented. The norm for the first part of the republics history was the confirmation process was quite quick. End ofas acting, at the a congress, if you look at marbury versus madison that many are familiar with where John Marshall established with judicial action the concept of judicial review with regard to the Supreme Court. That arose from a situation where a federalist majority in congress which had just been voted out by the voters created a whole new branch of the judiciary, a new level of circuit courts. Then president adams who had also been voted out still was on the circuit court. This kind of thing has happened in the past but we have to go a long way back to get there. Host lets talk a little about the process and the history about the process. Then Senate Majority leader harry reid employed what was called the Nuclear Option back in 2013. Lets see what he said back then. [video clip] the American People believe congress is broken. The American People believe the senate is broken. I believe the American People are right. The 113ths congress, congress, the United States has wasted an unprecedented amount of time a procedural and partisan obstruction. As a result, the work of this country goes undone. Should be passing legislation that strengthens our economy, protects american families, instead we are bringing wasted hours and wasted days between filibusters. We are burning wasted days and wasted weeks between filibusters. Even one of the senates most basic duties, confirmation of president ial nominees, has become completely unworkable. President , there has been unbelievable, unprecedented obstruction for the first time in the history of our republic. Republicans have routinely use the filibuster to prevent president obama from appointing a prospective candidate or confirming judges. What first of all, tell us that Nuclear Option was that harry reid was talking about and removal hasits change the senate and this confirmation process. Guest i was on the floor when the majority leader harry reid gave that speech. I remember it very well. For your viewers, the senate rules are a bit unique. They are different than the house. Under the rules, any senator can speak or be recognized to speak as long as the senator wants to speak or be recognized to speak, you cannot call a vote. If no one is speaking, you can call the boat. If you want to have a vote, even though he sensed her wants to speak or speaking, you have to file cloture under rule 22 which is a way to end debate over the objections of other senators. Majority ofs 3 5 votes, typically 60 senators. Reid was referring to where he had final cloture or have been forced to file cloture and that takes time. Were not a lot of filibusters at that time because every time harry reid filed cloture, he would threaten to use the Nuclear Option and republicans would back down and vote for cloture to end debate and it was only at the end in november where harry reid finally follow through and use the Nuclear Option because republicans said we dont want to end debate. It seems that the place to decide whether or not you want to end debate is on the senate floor. I think those are completely legitimate debates. Host how did the removal of the Nuclear Option affect the confirmation fight and why werent Supreme Court justices involved . Why werent they included in that argument over cloture . Guest originally, the Nuclear Option which is essentially the senate using his constitutional powers under article one, section five to make up its own rules, it was using that power to change its rules essentially and harry reid didnt have the votes among democrats. It takes 51 votes to get around the senate rules. He didnt have the vote so he had to leave out the Supreme Court because there were some democrats who are concerned about the situation this would put them in. Right now is a great case in point. Fastforward to 2017, republicans did the same thing but they used it to expand the exemption from the 60 vote threshold in debate to the Supreme Court. Now here we are. It has not eliminated cloture or the requirements to get cloture. Its still there and it takes time but has reduced the number of votes required to end debate from 60 two essentially 51. It has removed some of the minority leverage in the confirmation process. Host let me remind our viewers that they can join on and on the conversation. We will use the regular lines james, i cover the Senate Judiciary committee for a long time. There have been back and forth with democrats and republicans over judicial nominations but specifically, Supreme Court nominations for years. You could almost take it all the way back to the nomination of robert bork. Be a process in which we wont have these arguments back and forth over has to the Senate Confirm a nominee from the white house or whether the democrats or republicans, whoever is in charge, can just block a president s nominee . The controversy we see over Supreme Court nominees in recent decades is related to what we expect from the court. Increasingly, we expect the court to resolve the most controversial issues. Today, people on the left and democrats are upset and they are worried and they should be in their perspective because they say this justice could affect what law is in this nation for the neck generation. Thats got to be frightening to the American People because the court is something that is not susceptible to popular opinion. It cannot be held accountable in aresame way and justices for life. In a democratic republic, that is a very, very concerning thing where you make policy, you make of for an entire nation selfgoverning citizens by an institution that cannot really be held accountable. Past,d submit that in the the Supreme Court was not considered in this light and thats when you saw the confirmation process go quickly. Games madison was nominatin justices and one was confirmed and later said i dont want this job. Level of what we expect the Supreme Court to do that speaks to the controversy. As far as whether or not the senate can or cannot consider a Supreme Court nomination, while the president has the power to appoint or nominate, the senate has the power to confirm under the constitution. The constitution give the senate only the power to decide how it will exercise its duties. James madison as president in the was talking about senate and the president that are alike in the same manner that the house in the senate are alike with regard to legislation. They both exercise their power independently and they both coequal and coordinate. Just as no one would expect the senate has to take up every bill the house passes, or somehow has to vote in every bill, the senate doesnt have to vote on every president ial nominee. There may be other reasons why it should but its not constitutionally required to do so. Host lets ask our viewers to join in on the conversation. Sean is calling from columbus, ohio on the democratic line, good morning. Caller good morning, gentlemen. I just have a question if you go back to the last six president s, it looks like it is104 republican to democrats as far as nominations is that correct . Host guest guest it certainly seems we have had a lot of republican president s but i dont have the numbers in front of me but it sounds like we have had republican president s and there have been vacancies on the court so that would make sense they would have more opportunity to appoint justices. Caller that brings it back to the point about the ethics part. If you look at the nominations that go through quickly, the vote is pretty much the majority , 70 or 80 votes for ones that go quickly but anything that takes 46 months seems to go down party lines. To me, to shove this through within this time, judges will have three judges appointed and they held one back for year so he would have that opportunity, to then cry that democrats will stack the justices. Have now, what we stacked justices . 63 is a pretty big majority . Guest although i would add that the concerns you see about the court relate to cases where they are down really divided. Where they are narrowly divided. Most of the cases the court picks up and heres are going to be decided on much larger majority basis. Than justother ways simply expanding or packing the court to get around a majority you dont like. This relates to congress. Congress has a lot of power here. The people are not powerless because they have a direct say over who six in congress and they can make their views known to the representatives in we leave this conversation with James Wallner to bring you live coverage of democratic president ial candidate joe 2020 fallmarks at the Leadership Meeting at the u. S. Conference of mayors. This is live coverage on cspan. I can say that i did it, you know, i ran for the senate because we need you. But the quality of lives is so much