They left the filibuster in place for the Supreme Court nominees. Over the last couple months they have made very vocal suit of Hillary Clinton as soon as they act a filibuster. I think they will act in kind if and when. A fight between those i think the answer is yes. But for them talk about Lower Court Judges lets talk about that. There 102 pending vacancies in the lower courts today. Thirtyeight of those vacancies have been classified by the u. S. Courts not exactly a partisan entity is emergencies because of the pressure that they had placed on other dockets. This is not just about the Supreme Court the opportunity to fill these courts. I can say no its ideological opposition. And compare them to their eight years. The numbers are almost identical. You can say that at different times to no one in the hell ever takes a socalled emergencies. Im sure there were some. What happened in 20072008 when they manage to get this confirmed the white house caved. That histories of giving to candidates and those are the folks that were nominated and confirmed. You can praise it or criticize it hasnt been willing to strike deals. I want to go through a list of the nominations. I will say briefly that is very hard to look at that list of 59 its a much more compromising list then you might think. Whatever we can say about the lower courts lets focus on the Supreme Court for the time being. And steve set a second ago. The stakes might be lower because broadley is speaking we expect a conservative it to replace a conservative and return us to the status quo that we know in february is that broadly speaking correct was there more nuanced view about replacing someone over stature. I think its a reasonable one. In terms of whether whoever is elected will be like Justice Scalia that is a huge road to fill. The Supreme Court deals with a lot of difficult issues. No one can expect anyone to hold the same set of use across issue after issue Justice Scalia reached liberal results in a whole host of areas criminal procedure for example. Who knows whether some folks on the list might lean the same way. There could be some areas where there would be a difference is. I dont think that would be the area but are particular concern. I wonder if the concession that there to hold different views is inconsistent with the vision that there has been pursed by all of the recent nominees. The area where i think there is the most room for movement. Very few of which were high profile. He was the fifth vote joining the more democrat views. The numbers are quite large and criminal cases. There are 25 cases where Justice Scalia is in majority voting for the criminal amendments. I think its possible that a nominee weather on the list or not on the list will be progovernment. Im not sure that that would be the wedge as compared to someone that has the neck to seat opened up. Lets imagine ourselves back in the era that has existed since they joined the core in 2006. Are there cases on the docket now or on the horizon where you might see some movement in major cases because we are back in the area. Its all about the department of education. I do think that there are some hot button issues on their way to the court folks who live in my National Security universe. I dont know if looking at this term there was an obvious did not. Stand out. And might be might be a case where the fifth vote would be like that. The last term we have a couple of major ones. That is another case where the Trump Administration doesnt need to go to court because it could just change the regulations. What about friedrichs. The public union case. That went off a fourfour. And there are versions of the case of that case coming back to the court. One can imagine that that case is resolved. You can decide. There is that. I think the last term is the passing of Justice Scalia. Its a very surprising thing. The leftward move of justice kennedy. They join the very powerful reinvigoration of a womans right to choose into womens health. There will be quite as much blood spilled over the scalia seats. At least for the moment they have staked out a position a bit further to the left. And its gonna take going to take a fifth vote from someone other than kennedy to scale back on those cases. What do you attribute that to quacks. If i was being obnoxious i would say common sense. I dont know. And i would hate to speculate. Its been my experience to try to teach that. As they say he blows with the wind. There is a lot going on behind the position. I do wonder if the specter of a Trump Presidency which he obviously was not thinking about last term. Might further push him and frankly chief Justice Roberts to be especially thoughtful and careful about questions of separation of powers. In ways that they might not had been so weary. Nothing i can say publicly. I dont dispute that he has moved even further left in some areas. I think we saw that the genesis of this way back in 1982 at the heart of liberty. The ability to define a concept of one ons existence. Its a the Fortune Cookie understanding of the world. Who knows where it might lead. I think there is a lack of rigor. It shouldnt surprise us that it is reactive to a perception of how well the institutions of government are working. And pushing back against Guantanamo Military commissions and things of that nature and then stepping back in 2009 or 2010. I dont think its crazy to speculate that there is some sense that the separation of powers. One wonders if we see some new found separation of powers in the next administration if it might emerge on the courts. And the great of a general consensus that the next nomination is not to be the one that changes the world. Which one might those be. Look at the demographics. Im not a hundred reliable. Justice ginsburg is 83. Justice kennedy is 80. Those would be the most obvious pics. The senate is very likely to be securely in republican hands after 200018. In 25 of the 33 seats up for election are currently held by democrats. Heres what might happen over the next two years. My point is that its reasonable to think that we are looking at now what happens over the next two years but what happens over the next four. I think its a good bet that you will have one or two additional vacancies. If its a vacancy that arises voluntarily it will be justice thomas. Its much the same that happened with those other administrations. I dont know if any of them are good only by choice. Lets test that proposition for a second. If it is viewed as political its authority diminishes. They do when they leave voluntarily seem to make an effort to leave. Isnt that imputing a political motive to the court. I really hope they dont hear me to say that it is apolitical. It should be beholden. That has been the trend historically. Other politics behind the choices that they make. That has always been true. The perception is the reason why they are being decided is because applicable or particular president. I think thats and we got into trouble. It have to be. How do these offices. When there is a confirmation process. Or blocking folks that it would transform the core in the wrong direction. No surprise at all here. I used to be the case that you could put politicians on the Supreme Court because we have an understanding in this country that law was different from politics. But what has broken down over the last few decades is an understanding of law is the same as politics. That is a deeper crisis that leads to concerns about the politicization. When i was general counsel. They were confirmed 96 to three. The ammunition such as it was. The senate was controlled by republicans. If you want to understand the history of a confirmation process is over the last three decades the first thing you need to look at is who is controlling the senate. To suggest that its a recent democratic party. Does anybody know the last Supreme Court justice to be confirmed by republican senate. I dont know that we can say this was all like that. He wrote lochner. I dont know that we can say that this is some recent phenomenon. It is right that they will already have a lot to do with the confirmation process. From all of these prior examples. I think what is different is not necessarily in the longterm. I will cite the comments that they made yesterday. She wouldve recommended exactly the same course. Joe biden said back in 1992. Its baked into the process. The senate has been in the hands of the party as a president. Whenever there is in any divided government from washington though right answer to actual conflict is in action. In the right answer is do nothing that is a natural extension of my argument. How is it not . They wrote in the Washington Post in february about how the real lesson we should take away. This is before garland had even been nominated. There is no principle in the process whatsoever. Its all about power. The better we will all be. And then what is true. The only thing that matters is how you consolidate and control power. When you have the Supreme Court. Joined join me in imagining a Supreme Court where one of the three oldest justices leave the court and will be to replace my trumpet nominee thus thrusting roberts into the median seat what kind of world would we be in. What kind of precedents might be under pressure. That depends on who these two justices who, the court are. I think a prime target is roe versus wade. I think there should be other cases as well. Its interesting over the last few months they were salivating over a prospect of a liberal Supreme Court. In the cases that should be overruled immediately. I dont think they have a long list like that. But the cases will come up. You will see an effort on the part of the conservatives to work these things out. The conservatives divide on a host of cases. That yields easy answers to all cases. There can be difficult questions on which intelligent judges can divide. Were curious how uniformly they are always together. There should be a couple of things there i should probably respond to. Second, i think part of why you dont see separate opinions from the left they talk about what happens when they disagree when they write an opinion that tries to distinguish a precedent. Its not something that only one side is guilty of. Your counterexample is in a case. Liberals are always together and dont care about recent decisionmaking. They just decided case decide a case that is a sharp divide. Its more complex. Of the case where they are there. If she thinks that thats incorrect where is a case where they have departed from. Theres also that better or worse. They said things in the public about pending cases. Im sure he didnt. What does he have in mind . They made clear believing that aside. Underline question was. Do they become vulnerable. Where one vacancy away from the end of a row. I dont think that turned out the way they thought it would. They would be automatically overruled. There are a couple of confirmations where that is the same theory. How will the lesson has been learned it was the effort to put a stealth conservative at a time when you have it Senate Democrat majority. It carries a lot of rate weight with a lot of folks. Theyre actually bright for years people have been saying it didnt happen. They are quite aware of that. What you had right now is a much more sophisticated conservative legal movement. If you get used to be the techno liturgy. Its a big, big factor. Basically trust us we know what were doing its not something that the conservatives will accept anymore. I believe with all that. I think its a very interesting one and a very different one do what we are today. I have a lot of faith in the chief justice. To care very deeply and passionately about preserving the separation of powers even the different views about this. I think i would have a lot of confidence would not had efforts in the political branches to limit the role of the courts. Ive less faced to protect the individual rights that i care about. The last place. I could see a possibility that there be a paradigm shift. With much less given and power delegated. We will see what happens to that. Let me ask you about something that president elect trump is set on 60 minutes. He was asked about that. He said they settled in. We dont need to go back to that. And then he said but roe versus wade needs to be overturned and turned back to the states. Im not sure if i follow that distinction. I was on a Panel Last Week they made basically the same division that donald trump did. Different people can have understandings of when precedent is settled and not. The office of the joint opinion. They said that they were calling an end to the National Division on this issue. They thought as can be over at this point. It didnt work out. I thick it think it is entirely reasonable to recognize that the controversy over this of posted status of abortion remains very heated. I think he is plainly wrong. I think wrong precedent should be overruled. The fact of the matter is the court has the ability to transform into ratify a transformation in the public understanding of marriage much more easily than it has the ability to deny the biologic reality of the unborn human being. They have a certain enduring impact that is can affect the perceptions in a way that i dont think anything comparable in dealing with the question of the right to kill the unborn. I think if women were pushed into that. That is a consideration that they can fully take into account. Im not i said at the top. And instead should be overturned i said why he thinks its conceivable that donald trump argue that one could be a these things as one differently than the other. Im sure donna trump was referring to the status of this. What i suspect that donald trump meant was that its 43 years old in that situation it seems like roe versus wade is less reflective. What that misses his mrs. Is whole or mens health which is the most pro abortion decision that they had handed down. I think it is a similar move he thinks our both wrongly decided. I think its an effort by donald trump to draw a different mind than the one that irwin was trying to draw. But you would think if there is a reliance interest it would be in the older case not the newer case. I think ed is touching on the political reality as opposed to the constitutional reality i think that abortion will remain more of a hot button issue in our contemporary Public Discourse then gay marriage and i think that has nothing to do the constitution. And everything to do with the prevailing in evolving society mores. Mores. They gave a very interesting speech it could be thought to be an Agenda Setting to what the Supreme Court not to be looking at. What are the interests that they have. They might want to address. He raised three or four things. He thinks First AmendmentFirst Amendment values are under attack in two different settings. And resistant to Citizens United he was unhappy with the fact that some 40 senators have proposed a constitutional amendment to the First Amendment as he said privileged the press over other kind of corporations. He was deeply concerned about what he would call Political Correctness on college campuses. Im not sure how those he seemed to suggest that they have not really been followed even after the decision and he said that religious Liberty Continues to be under attack in conflicts between pharmacists and people who bake cakes and so on. It seems like a very conference of view of the world and i wonder are those areas where court truly dominated by conservatives which is to say after a second trump nomination might take a different view of things . I think Justice Alito was being a little more careful in identifying fault lines that he perceived. These are some issues that are very divisive and the more conservatives you have on the court the more likely to get consensus where the court has been heading. I will just say even before the last ten months the first one was very interesting and not obvious flashpoint for the Roberts Court where weve seen a number of cases where the court was not 54 and was invested. Against legislation. The continued effort. It strikes me that if the question is speech is obvious to me that more nominees will move the needle back radically. But the other side is religion. I think thats where there is a real potential ground shift in a court where john roberts is a center seat as compared to the status quo. And where the missouri case is a very small and modest flashpoint compared to the tension between those two. That could be a very big sensitive topic in the coming years. We will turn to your questions and just a second. Let me ask one more followup question along those lines. We talked about the eight member court and the number of times it has deadlocked. They did issue some bottled decisions and one of them even by their standards im thinking in particular of the civic case. There was a clash between the regulations under the Affordable Care act guaranteeing free contraceptive coverage. They could sort of set it struck you like a Family Court Mediator might do. What he think becomes to those kinds of classes. Even this year or next year. In terms of the obama care regulations i would hope that those controversies are pretty quickly booted. I would think that in relatively quick order the new administration would eliminate the requirement that was a source of the conflict. I will be fascinated to see how they handle that. I dont think its can be quite as easy as they thought it was gonna be. Even if they find a way around the dispute over the exception to the religious nonprofits there will be other litigation. I dont think theyve seen the last of this. So this is been a lively discussion. What we would love to get some questions from all of you. Here comes a microphone back there. I like to hear your opinion on whether we have several retired justices that are out there and confirmed would they ever have the chance to ask them to take the bench again. We have three justices now who have retired. They are still able to sit as Lower Court Judges. They cannot be redesignated as Supreme Court justices. They resigned the office and it has been filled. You would have to go through the whole process again if you wanted them to do that. I do think congress could by statute provided that in the event a lack of a full bench a set tutorial are tired supreme tired Supreme Court justice could sit my designation. Thats how state Supreme Courts will fill the spots. I dont think that had to be reconfirmed congress would have to authorize them to do that. Would it be only to respect those appointed to the office of justice later on. I think i mentioned that differing. My own personal view i think it would be within Congress Power to so provide we probably agree this is a wholly academic question it is true among the many reforms that have been discussed prospectively one of the suggestions has been for cases that actually recuse as opposed to open seats i think that is a conversation worth having not necessarily right now because of the political impossibility you need to make that happen. All three of the potential retirees are moderate to left have also heard in private Supreme Court justices say it does say there should be one Supreme Court and the sounds like there be different renovations. Its a seemed to be about whether they could be in three of those. There is a little more room than we might think. Are there other questions. This is been beyond fascinating. Talk about lower court a lot of the same things in the concerns that they have also go in as it is the eighth year of the presidency. It would have no justices. In theory that could happen. Hasnt happened. But it has been a real slowdown in the last year of the president s term and as i indicated earlier. You end up with a real consensus pick surrenders getting confirmed especially after some point in the late spring or early summer. Forgive me for a slight tangent. I do think the mentality is not limited to judicial nominations. Its the exact argument that he would not consider passing the use of force authorization. Even though there is a rich debate on that question. The separation of powers in the scholar in me worries about a world in which ordinary prophecies are suspended by default because of an election year. I think there is a larger conversation that hopefully we will keep having about why the eighth year of it to your presidency when they passes less legislation for president s who might feel duty bound to exercise these powers Even Without Congress and to thereby actually irrigate power in ways that might be unhealthy in the long term. If we can have a president hasnt already lost the senate or the house that makes things easier. Yes and hasnt already lost the senate or the house that makes things easier. I dont think this is a last time well have a president and his fourth or eight year who has a hostile congress. They lose seats in midterm. Should they have a year and half to govern. And the rest the time we should have just hope for the best. Im optimistic that we can do better. Might not suggest that they can be held politically accountable by the voters who at least in theory might have been unhappy about the Senate Republican strategy i would love to hear your views. But it doesnt seem to me the republicans paid a political price for what at the outset seemed like a fairly bold and controversy i can speak from experience i had acquaintances who voted for donald trump solely because of the Supreme Court. Have it not been opened to them they wouldve voted for someone else. I think that is inevitable. This is why Mitch Mcconnell is being commended by conservatives in republicans for holding his ground and again i just want to try to suggest that if we try to take the long view at something we become allergic to doing in this town the long view is less positively disposed towards obstructionism it seems like the selection has dispelled any fear of instruction Going Forward maybe its good that weve head that. If he does come out and say im to deny you this for every single thing that happens in the senate not because i have concerns about Donald Trumps policies but because turnabout is fair play. There are all sorts of political constraints on house senators and how the act. You seem to be operating this round of logic divorced from political reality. Its a good thing that they understood of course there would be political pressures they are shaped by and constrained by that. If he decided he wanted to take that gamble that hes ready to face the voters. I have made clear from the beginning perfectly fine for folks to offer criticisms whether or not i agree with them of what republican said on that nomination. Ive spent a lot of time criticizing law professors and others who claim that there is some sort of constitutional duty on the part of the senate. Ive aimed my fire at that. Actually believe. In an argument that does not pass the last test. One can counter that thats exactly what we ought to be debating the political realm. What is a responsible course of conduct and what isnt. You said earlier that they wouldve been awarded if they wouldve taken the same course of conduct. Of course as benefited republicans. I think democrats wouldve been forced would of been forced by their base to take the same course what we have in this election is an opportunity for the people to speak their voices and i think thats a good thing. I was curious and i might call for too much speculation in the event up to trump nominees on the court could you talk more about this this paradigm shift in regards to Administrative Law. Maybe a scenario where President Trump wants to push through certain initiatives on immigration policy that congress isnt supportive of and how they would respond to certain executive orders involving that kind of initiative. I agree with what steve had to say earlier. About possible changes over the longer term i think its very difficult to discern with respect to any of the candidates on the list were there to be on this, get it comp located in ministry of law issues. I do have every hope in every confidence that none of these folks would change their views just to accommodate a particular president views on a particular issue. If anything its more interesting to ask chief Justice Roberts in the issue. I think you could see tension between President Trump who wants to wield his executive power in the court that is nervous about those things. I think it be a very easy consensus for the chief to build with the democratic appointment on the court. To use constraints on Administrative Law to reign and perceived excesses by a President Trump. You could do alignments ideologically. I just wanted to turn the question back to separation of powers for a minute. You said you would not be bothered at the senate extended brock aid past 2019. If they dont have to act on any nominee ever and if so how does that deal with article three. And eight Justice Court and i think that would present a constitutional crisis over nixon. Of time does the president had any obligation to nominate a Supreme Court justice. He shall nominate on the advice of the senate shall appoint whole reigns of officers. It is imposing obligation to nominate folks for all of the existing vacancies. Then president obama had been grossly in violation of the constitutional duty. I think its far more possible as one scholar argues to understand the shell clause in terms of setting up how they should operate in the first place and explain who shall nominate. If president washington had never nominated anyone to the Supreme Court and they have never gotten up and running now be one question that could be very difficult to defend. Where we are now i dont think a president would have an obligation to make a nomination. I dont think they would have an obligation to confirm any particular nominee. They are can have an incentive to nominate the vacancies they care about. You have the incentive to make it gratuitous to do that. I will to say. Federal law currently provides that for purposes of eight Supreme Court a quorum of justices is set. Its an interesting question whether in a scenario in which the number of actual sitting justices fell below six. They believe that that requirement was unconstitutional. I will say i think your question highlights something i was trying to get at at the beginning of the session which is i think its possible that you can have a constitutional prerogative exercise or in this case not exercise in a way that actually violates constitutional norms. The answer at the end of the date is in the constitutional violation. The answer is that we have a constitutional crisis because two institutions try to stick to their perceived understanding of their own power and theyve engaged in mutual destruction. That is not the basis for a lawsuit but i think it is the basis for the destruction of the Supreme Court i think we are not there. Imagine if it was a last justice that could ever be confirmed for the Supreme Court. Id agree make i think we make sure that that never happens. I shouldve have consequences and didnt matter either. I think we are in agreement at some point one could envision getting to the point where you see yes you have a court unable to act. Not anyone has necessarily had that. Its nonetheless crisis. Our system of elections and conditions i guess a place where we disagree is how far we are from them. They see a victory for Mitch Mcconnell and see a world where these kind actually can be rewarded. And if the patterns change in a way where one party is can be assured i could see them pointing to this is a powerful and useful president. The bottom line is here the government will be paralyzed. The argument that they made as lets have the election come. Then and say lets keep this open forever. I think it is highly applicable. I think youre misstating what they said. If anyone took a position. The consensus among that. Its hard for me to imagine the politics of it. No matter who president elect hillary nominee to the court we will not had hearings. Even if they say that its a game of chicken. This is politics. Dont take the statements as though that is something thats i am cass. Youve a few minutes left. This is insane. Thank you for this very interesting discussion they had been there. The only question now is which one of you will get in. Seek an end that problem. They dont think thats can happen. Is there any way to solve this problem. I agree with you its a problem. Through one side getting up. Is there another way. I think the other line cause is a deep division. I was very pessimistic about what will happen. The only way this impasse is resolved. I continue to believe that the only way this ever really gets resolved as one side to the other. If steve really wants us to and he should be cheering for the liberal justices to retire and be replaced. It is true that ive spent more time in the last ten days that is a horrible thing to think about. But it does seem very real. There are two possible ways that we solve the problem. One is that members of congress start asking like responsible citizens as opposed to partisan acts. The second happen. I aspire to that happening to a world where it is the new democrat comes to the house and says where the republicans i need to meet the enemy. And they say they are the opposition the senate is the enemy. Those days are gone. I aspire to those days. The solution is to normalize Supreme Court nominations. I have not always been a fan but i have come around the last year for proposals. To basically had nine justice of serving a ten year terms where it is just understood that every two years the president is can he be able to pursue a nomination with understanding that it takes up a responsibility to confirm at least as efficiently moderate nominee. There is just a stable sort of process. They will still engage in that. I think it will be harder in that point where there is an understood timing. As opposed to the fortuitous miss of this. I dont know that waiting for it to all bird down in is the right way to solve this problem. I took them a very long time. I think it was only there. A lot of that was because of this court this court survived the next crisis. Im not so sanguine about the prospects. There is debate about this among the crazy liberal law professors. I will say that i will align myself with the camp cam does not require it. If they are still carrying out some kind of duty. It can be applied to existing deficit. Im less sure about that. Im willing to accept that i could be wrong about that. In the second happen ever anyway. The weirdest thing about teaching as many of the most interesting questions never happen. Thats a good thing. I think we should be happy with the fact that that never happens. I worry that we can have more of these questions raised and had to be resolved now. There can crazy conservative ones as well. That does not include everyone. Those adjectives are restrictive not redundant. I dont see how ever get to adopting a proposal like the one steve recommends. I am sorry to say we had run out of time. [applause]