Impact the president s diagnosis and two members of the Senate Judiciary committees diagnosis will have on her Supreme Court nomination. Guest so far, according to the chairman of the Judiciary Committee, senator Lindsey Graham, no effect at all. Full steam ahead. Hearings will Begin Next Week as he has announced. The committee put out a fact howt last night, explaining many hearings they have had so far. Some members have participated remotely. The anticipation from Republican Leadership is to move as quickly as possible to attempt to confirm judge merrick judge barrett before the election. We will find out if perhaps something comes up. Democrats on the committee have been demanding that the hearings take place in person, they say. They are also saying that it is too dangerous to have but they do not have the votes to enforce that if the republicans stick together. Host you talk about having the votes. If multiple republican senators cannot be in the room for a Committee Confirmation vote, is there anything democrats can do to slow up this process as we move, not just through the hearings but through the Committee Vote before it goes to the floor . Guest there are form requirements in the senate rules. Theoretically, the democrats could boycott the meeting and deprive the republicans. Republicans could respond by attempting to change the rules of the committee. We have seen both sides do that when they have the majority to get rid of procedural rights the minority had. It is, i guess, possible the democrats could slow it down by forcing republicans to change the rules for the quorum. The answer is we dont know. Republicans have the upper hand. Democrats might have some procedural moves to slow things down. We also dont know what is happening with the spread of this horrible disease and whether members will have to be hospitalized. There is a lot of uncertainty now. Everything we were hearing from Republican Leadership is full steam ahead. There is no issue, nothing is more important to them than filling the vacancy left by Justice Ginsburg. And whether events allow them to fulfill that pledge, we will see. Host how far have democrats tried to play this out in terms of the quorum requirements . How long, if they use that tactic, could they delay a confirmation vote . How long would it take for Lindsey Graham to have a vote on changing the roles . Would there be a quorum when it comes to changing the rules . How far have we dug into that process . Guest there has never been an occasion for me to learn the archaic rules of the Judiciary Committee in that regard. Historically, the minority has been able to request and require a delay of one week of a vote on a nominee. They have that has been traditionally what the minority does when they have a nominee they dont like and they try to slow things down to write their speeches and so on, opposing. I really dont know how effectively the democrats can or will play whatever bad hand they have. Y are looking up records from the 1800s and can be done. What host in terms of what it will look like in the room next week, if and when the hearings go forward, what do you know at this point about new testing procedures, who will be in the room and how that might work . Guest it has not been announced. We dont know. We do not know if the hearing will be done entirely remotely, partially remotely. Or if it is up in the air, it is a fluid situation. Only two numbers of the Judiciary Committee have tested positive for coronavirus. Maybe there will be more. We dont know. The ones who tested positive will have to quarantine three they cannot be with other people at this time. Quarantine. They cannot be with other people at this time. Whether others will come down with it, we dont know. Judgee not heard from barrett or her husband, who reported last week that they tested positive earlier this year. We have not heard anything from her or her white house handlers. It is mysterious trade we have not heard from the court, if anyone was tested there, given the president visited buildings with respect to justice jens berg Justice Ginsburg when she laid in repose. A lot of questions unknown to us. I guess that is what makes it exciting. It is a tragedy. I guess i have to tell you we dont know. It is very fluid. One thing i can tell you for sure is that the Supreme Court schedule will not be disrupted. They do not fool around with that kind of stuff. One observer noted that the contrast of the white house, the Supreme Court justices were very cautious about it when you saw them paying respect to Justice Ginsburg. They all had as masks and one had a face shield as well. Face masks and one had a face shield as well. They are taking it very seriously. It is a much more it is a branch of government that does schedule androm its methods very easily. That thety certain Supreme Court will move right ahead with its telephone hearings next week. What will happen across the street at the Senate Judiciary committee is very much up in the air. A busy time on the Supreme Court beat. Glad to have jess bravin of the wall street journal with us for about 35 more minutes. Your phone calls, your questions, the phone lines, 202 7488001 for republicans. 202 7488000 for democrats. Ndependents, 202 7488002 jess bravin, as folks are calling in, what happens today on the opening day of a new term . How does the Supreme Court work with a bench of eight justices . Guest if we were in the courtroom, everyone would notice the black draping over Justice Ginsburg seat of the bench. The last time we saw that was when Justice Scalia also died in 2016. We will not see that because the court is not meeting inside the courtroom. Everyone is meeting by telephone for the same procedure that we in may when they conducted a reduced briefing schedule. I expect that we will hear a new voice at first calling the court into forum quorum because we have a new acting marshall. Pamela talkin retired. The Deputy Marshal will cry oea yea. We will have a male voice for the first time in two decades. The chief justice will make some minor technical announcements of the closing of the last term and the beginning of the new one. Theay Say Something about loss of Justice Ginsburg briefly. The court will quickly move directly into arguments. Hear ist they will about the structure of the Judiciary Committee in the state of delaware. The court will spend a little bit of time on the ceremonial matters. But then they will get right to is this. There will not be much emotion or politics in the way the events unfold. Host we will get right to our colors. Isnext up first for you joe mccutcheon, one of our every 30 day colors. You have joe. Joe, go ahead. Caller thank you, john. I love cspan. I just want to say, jeff, i think Amy Coney Barrett will be confirmed and she will become a great justice. I want to applaud President Trump. I think he will be reelected in a landslide. We have leadership that strongly favors judge comey, led by a young man who i think will be future president. I think she will be confirmed and be a great justice. I think President Trump will be reelected in a huge landslide and i love cspan. I think steve scully will do a great job moderating the second debate. Host how is that classic barbecue going . Have you gotten more folks signed up since calling in an advertising it . Caller it is great. I have another man named Reese Sanford who i think will be president of the united states. He is a reagan trump conservative. We have a great bunch of young leaders. Five or six could be president. I just want to say i love cspan. I have been calling this Great Network for 30 years and you do a great job. Steve scully will do a great job handling the second debate. John, you are a great american. Host that is joe in georgia. Every 30 days for 30 years for joe mccutcheon. In pennsylvania, democrat, good morning. Caller good morning. , i wouldnt know what was going on in the world. Host patrick, what are your thoughts on this opening day of the Supreme Court amid Everything Else that is going on . With only eight justices, especially if we have disputes after this election, november 3, i really wanted to ask your guest here, if you could enlighten us a little bit we are all praying in pennsylvania for a speedy recovery for the president and his family and the other people who came down with the virus. , wanted to ask this gentleman if he could give us insight into exactly what is happening with general flynn. Here is a man that served this country for 38 years. I have been following it but i cannot quite wrap our arms around it as far as what is going on the last month. All of this evidence that said that general flynn was not doing bad and it was never turned over to the court. Is that going to eventually end up in the Supreme Court . Host we will let just raven jumped in on general flynn jess bravin jump in on general flynn. West what do we do when have an eight member Supreme Court . Great question because we dont have an odd number. What if, particularly what happens if they split 44 on a decision . If they cannot find a way to reach a majority and get five votes together, what happens is the lower courts decision that is on appeal remains in effect. Go to thef it did not Supreme Court at all. Lower Court Decision stays in effect whether it is the election case or any regular case. Now, in many of those cases, it may be the chief justice agreeing with the three liberal members of the court. It may not be. That is the main dynamic to understand. Regarding to general flynn, his justiceo and the apartments effort to dismiss the charges which he already pled guilty to is underway. Ins judge sullivans judge sullivans courtroom. I have not been following that as closely as some of my colleagues. It is not on the Supreme Court right now. Maybe it will get there at some point. Right now, i guess we have to look and see what comes out of the district court. Right now, i dont believe they have made a decision. Host back to the first part of your answer, election dispute cases. Do they have to go through lower courts . Could they be fast tracked to an eight member Supreme Court and therefore not have a lower Court Decision to fall back on . Guest do you mean that they would be i think it is very unlikely. That is where you file, you file in the district court. You cannot go into the court of appeals. The Supreme Court does not have original jurisdiction. Except for a few minor exceptions, one of which we will hear today. There is a dispute between texas and new mexico over some water rights. That starts at the Supreme Court. Put much every other kind of case has to start at a lower court first. Host to virginia beach, virginia, this is bill. Caller i dont know you from adam. That is a dangerous way to start. I have a comment to make and i would like your response to my comment. So far, i have learned from my Television Set and news media that Chuck Schumer and the democrats in the senate do not think it is ok for members of the republican side who have the virus and have to stay at home, they are not allowed to vote by proxy for a Supreme Court nominee. For democrats and everybody in the country, even people you dont meet facetoface, to sign a ballot and mail it in for the u. S. President. For some reason, those two rules just dont seem to click as being quite right with me. Would you care to comment on that . Thank you. Dont giveknow, i advice to the senate or to citizens on how to vote or conduct their business. I will say that there is Something Different about conducting a confirmation hearing in the senate and voting a ballot for president or city council or anything else. The difference is that the senators are entitled to have a hearing to ask questions of the nominee before they confirm that person and make judgments about that persons credibility and whichament and so forth, is something that we as ordinary citizens do not have the right to do when we are voting for president. Hopefully, i am sure steve scully will do us all very proud when he asks questions on our behalf. It is a somewhat different type of proceeding. But you are right in the sense that a lot of our business has likeferred to remote, just today. Unfortunately, i had my cspanwashington journal cup at home. Host we appreciate that. Caller product guest Product Placement for you guys. A lot of things have transitioned including the Supreme Court itself. That is a fair question, why cant they do the confirmation as many other things are . The answer is they dont want to. Whether that is purely for political reasons or they feel the in person environment is special, if you are accused of a crime, you have a right to an in person confirmation confrontation with the people accusing you. Justice scalia was a strong supporter of that. I dont think i can make a judgment on whether democrats are doing this based on principle, politics or a combination of both. Everything that goes on across court is a Strong Political move regardless of who is behind it. Host that is one of our older mugs. I will get you a campaign 2020 mug grade you cannot see it on your screen but it is a lot bigger and holds more coffee. Someway, somehow we will get that to you. Guest thank you. I had to bring a resupply here since this cup is so small. Host you do not need a resupply on one of these. To raymond, good morning. Youer let me say thank very much. You have been extremely educational in the information you have given area my question mass. Today is red this morning at st. Louis cathedral in new orleans, there is a red mass, could you comment on that . Is held byred mass the Catholic Church at the beginning of the Supreme Court term at st. Matthews cathedral in washington. And the members of the Supreme Court and other leaders of government are invited to it. Attended a couple of those. This years red mask was livestreamed. I watched it. Mass was livestreamed. I watched it. Wherean old tradition leaders in government seek divine guidance and inspiration. Sometimes, the homilies that are spoken there are fairly general helpts to bring in divine to these people who have serious response bill these. One year, there was a very serious response bill these. One year, there was responsibilities. One year, there was a strong antiabortion message. Justice ginsburg said she did not want to be there anymore. She did not want to be lectured about her job. Justices, including some who are not catholic, have generally attended. Often, other government officials have. The chief justice generally has attended. That is premuch what it is. It is no secret. Think members of the public may be able to attend. You mentioned judicial preference. Bers of the Supreme Court do the justices like working remotely . How did that work in the spring . Have there been complaints about the process and how the Supreme Courts are handling it . Guest the Supreme Court has been under great pressure from the powerbrokers at cspan, those very powerful people, to broadcast its hearings for many years. The court has politely declined invitations until now. The combination of a deadly Global Pandemic and cspans armtwisting has gotten the court to have a live audio feed where one can hear. Has become somewhat more transparent even though no one can watch the argument anymore. At least until the crisis is over. The argument have unfolded somewhat differently. In the courtroom, it can be a freeforall where a justice can jump in with a question when they have one. There are small courtesies. Usually justices with more seniority can go first or cut off another one. There is a rhetorical brawl that can take place. For telephone migrants were no one can see each other, they went with oldfashioned phones. Serialrt adopted a sequence. The chief justice goes first and he asks questions for several minutes and he turns it over to the next senior justice, Justice Clarence thomas. With her passing, it will go to justice breyer. They do not interrupt each other and they do not have the same kind of dynamic they had before. Some people thought it was an improvement because questions could be articulated without interruption. The arguing lawyers had a chance to answer without being interrupted except for by the person asking the question. There is some that missed the other style. So, one thing i have to say we did here and this was of significance to those of us who listen to the core all the time, we heard a lot more from Justice Thomas at the live argument or in person argument. He very rarely asked questions. But when the microphone went to him, he was very engaged and asking many questions that other justices followed up on. For us, we dont get the chance to hear him ask questions and engage with the attorneys. It was exciting. We wrote a story about how Justice Thomas was an unexpected star of the telephone hearings. Bravins of jess stories are available at wsj. Com. Just raven can be found on twitter at jess bravin. Can be found on twitter at jess bravin. Onler they count the votes november 3. There are people voting now. Hope let me say that i every vote is counted for president. Disputes orere are contests after an election, particularly when it is close. Sometimes they end up in court. We got to see that in excruciating detail 20 years ago in florida. Whether that happens this year or not remains to be seen as the experts like to say. The question is we cannot know until after the election takes place on november 3 and we have ballot counts and we see if there are any problems. We know that both campaigns, the Trump Campaign and Biden Campaign have legal teams that are studying up and getting ready to deal with any issues that might arise. I think that everyone, including the Supreme Court itself, really, really, really hopes that judges do not have to resolve any disputes about the election. The bigger the margin, the less likely there will be any disputes to adjudicate. Could it go to the Supreme Court . It could. That would be the least welcome case the Supreme Court could receive. Justices of any philosophy or ideology, one thing they really just like is to be seen as another group of politicians and not jurists. They dont want to be the ones to tell you who the president is. Host take us through the october calendar at the Supreme Court. What is the most highprofile cases the Supreme Court will be hearing . Guest there are a number of highprofile cases. The Court Somehow managed to schedule them all after november 3. I dont think that is a coincidence. I think the court was doing beinger it could to avoid political the death of Justice Ginsburg quashed hopes that they could keep a low profile during the elections. The outcome of that vacancy and the possible reaction should the democrats take the majority afterwards has been a major news topic. Areactual cases we hear interesting. They are not, i would say, pivotal to whether bankrupt motorists have to pay their parking ticket to the city of chicago to get cars back. That is the main question. Dispute coming up, a big copyright dispute between google and oracle. That might be the most consequential in the stock value of those companies. Supreme court case may or may not resolve that dispute. What else do we have coming up . Much, it is lower intensity issues. Is over,s the election things begin to get exciting again. We will have a big religion versus secular interests case, where the question arises about private nonprofit inter care agencies philadelphia must adhere to cities nondiscrimination rule. The city of philadelphia requires nondiscrimination against lgbt people, the Catholic Social Services agency, which has been a Foster Care Agency for decades and decades in philadelphia. We wont place children with samesex couples, lisa fine, they said fine, we wont give you a contractor then. But they still could apply for public funding. One week after the election. The case about the Affordable Care act. Anyone remember that . That was passed during president obamas administration. Congress reduced the penalty for not Holding Insurance to zero, the Affordable Care act unconstitutional, because theyre no longer was a tax involved. Im sure many of your viewers are member that the courts held that because it was a tax penalty, congress had the ability to pass that overhaul to levy taxes. Now that the taxes zero, is it still constitutional . Host so there are important things, that the court has tried to push them all off until after the election and focus on ticket reform. Host just about 10 minutes left, taking your questions on this openingday of what is known as the 2021 term of the Supreme Court. Guest october term, 2020. Host when is it known as the 2021 term . Is attending a little bit different . Guest in the olden days, there were different terms at different parts of the year. We would start with the name of the month that the term began in, different seasons, if you had, because they to travel across the country. But now, by statute of the court, it begins on the first monday in october. Thefirst woman justice in 1970s. It is known as the october term of the year that it begins. Other people would more casually say the 20202021 term. The very small world of the Supreme Court would think you were talking about the next term. Host that is why we have you on this openingday. Appreciate the fun facts. I will let you take some calls. You have to run to start your day. This is mark in new york. A democrat. Good morning. Caller i had a couple of questions. Theres all this talk about adding additional Supreme Court justices. Does congress have the ability to change the ruling before justices to hear a case to 8 . Justicesd question is, heard or talked about term limitations. Thank you. Can set the size of the Supreme Court. It was established in the 18th century. It has six members. The number of members has not changed. Since the 1860s, its been at nine numbers. The congress could change the number of Supreme Court justices. If it wishes to. That would require a majority in president snd the signature. That is the size of the court. The Congress Also sets jurisdiction of the Supreme Court. But that is exactly has not been fully defined but that has not exactly been fully defined. The court is not a love to hear one kind of kiss or another kind of case. The Supreme Court might have to , can they decide how many justices are required to put a kiss on the docket . Right now under Supreme Court justices toeed four put a kiss on the docket. On the docket. Could congress say, you cannot hear a case until each justice agrees . My immediate answer is, i dont know. Ive never heard of congress trying to intervene inside the internal rules of the Supreme Court to that degree. By that matter, could the congress say the court must have unanimous opinions in order for the decisions to take affect . Effect . There would be what we call separation of powers. In other words, can the congress encroach on the internal workings of the Supreme Court to the degree . Or would the objection of the court itself . Seen those issues arise. That kind of proposal, getting into the internal machinery of the Supreme Court, would catch the attention of congress. Theyre much more likely would be discussion about whether or not the result right number of justices, should judge merrick be confirmed under the circumstances judge barrett be confirmed of the should judge merrick be confirmed under the circumstances of the last several years. Can the Supreme Court terms be limited to 18 years . The casa touche and says that the justices the constitution says that the justices serve for life. Could congress say, you keep your salary, you just cant make decisions in the Supreme Court after 18 years . At. No. Its never come up before. The Supreme Court would have to decide whether that is constitutional. I suspect the justices would believe amending the is the proper way to address the terms of federal judges, whether this type of super clever effort to get around constitutional amendment would pass, we dont know. Washington. This is david. A democrat. Good morning. Aller the question i have has to do with textualism and original as him. Mean . Oes that are there two or three . Would judges use either of those terms . If you could give a definition of those. A liberal would be textualism or original is. Originalism. How do they come to that . Do they choose that at some time or actually interpret the law . Guest this is something that affects the kind of way, the approaches come at a different justices take when they have to interpret a provision of the constitution or a statute passed by congress or legislature. Few extreme cases where a judge uses only one and none other than that. It is a matter of degree. Theres not member of the original Public Meeting of the constitution is irrelevant. None of us would say that. None of them would say that the point of the law is totally to myvant to decision. It tends to be a matter of degree and what they give the most week two. Some justices talk about original as him. Original as most championed by the late Justice Scalia. Judge barrett says the paramount question when interpreting constitutions, what it meant when it was adopted. What did cruel and unusual punishment mean in the 1780s and