Transcripts For CSPAN3 Discussion Focuses On Judicial Nominations 20161128

Students can work o loan or in a group of up to three to produce a five to seven minute documentary. A grand prize of 5,000 will go to the student or team with the best overall enry. 100,000 in cash prizes will be award and shared between 150 students and 53 teachers. January 20, 2017, our deadline. For more information about the competition, go to our website. Next, a discussion on how Senate Republicans handle the Merrick Garland nomination and whats ahead for the Supreme Court. This is about 90 minutes. Good afternoon. Im jenny sloan, the president of the constitution project. I want to welcome you all here today. The constitution project specializes in creating bipartisan consensus on controversial constitutional issues. It has been a tough go for all of us over the past several months but the constitution project has been able to continue to create this bipartisan consensus. We expect that we are going to be able to do so over the next four years, eight years and beyond. So we are glad to welcome you here today and we are glad certainly to welcome our panelist for what i know is going to be a really interesting discussion. The bios of our panelists are in this program which hopefully you have all picked up before you came in here. With that, let me introduce adam whiptack, who is the reporter for the Supreme Court from the new york times. Adam will begin our discussion. Thank you all to our panelists for joining us today and thank you also to mayor brown for this wonderful lunch that they have provided all of us. Hello and welcome. We live in interesting times. Were going to focus on one aspect of the volatile government we live in, the Supreme Court, and maybe conduct what i take to be a postmortem on president obamas nomination of chief Merrick Garland and a premo p premortem of Donald Trumps nominations. On my right is ed whalen, the president of the ethics and Public Policy center. A widely read blogger who cons tributes to the National Reviews bench memories. He has served as a law clerk to Justice Anton anyone scalia, in the office of Legal Counsel in the Justice Department and general counsel on the senate m panel of the judiciary. A graduate of harvard and harvard law. Steve is a law professor and writes for academic and popular audiences and contributes to cnn. I is a graduate of am murse the college and Yale Law School and clerked on two federal judge circuits and i dont know what it is but it sounds good e. He is a Supreme Court fellow here at the constitution center. Lets look back on the garland center. I get a lot of emails. Is there anything president obama can do to put Merrick Garland on the Supreme Court . He could persuade donald trump to nominate him. I think basically the nomination is dead. Practically, yes. There are legal things he could attempt to do between now and january 3rd. What might those things be . There is an infin tess malmoment when the senate will be in recess where president obama could theoretically recess Merrick Garland on the Supreme Court. He could try to carry out some weird procedural maneuvers on the senate flar but realistically those would not be able to happen. Aside from the fact that president obama would not be able to do a nomination in that inmin tessism moment. I dont think thats even a longshot possibility. Also, the politics of it. This is all sort of fun and frivolous. Okay. Well, then, lets assume that nomination is dead. Let me ask you a couple questions about it. There has been some talk that the senate in refusing to act in any way on the garland nomination or, indeed, on any nomination from president obama, that it violated some constitutional duty. Any froout truth to that, ed whalen . I think that argument is clearly wrong. I was at an event yesterday with former Obama White House counsel, kathy rumler and she acknowledges if the situation had been reversed, she would have recommended that the Senate Democrats take ekts ali the same course as Senate Republicans took. She didnt have in mind that she would be recommending that they act unconstitutionally. It applies to all officers. That clause is a restriction on the president s power to put a nominee into an appointee. It says nothing about how the senate shall exercise its advice and consent power. Throughout american history, on the full range of officers subject to that appointment clause, the senate has routinely killed nominations by inaction. Some of the folks who are now making the argument that it is unconstitutional have supported actions like that in the past. So this is not an argument to be taken seriously. Steve, let me broaden out the question a little bit. Im guessing you agree that there is no constitutional obligation. Did it violate some political norm . Is the Supreme Court a special case as ed says, for lower court appointments, other kinds of appointments, the senate has withdrawn its consent by failing to act . I think the answer is yes. If i may, the title of this event is constitutional prerogative or crisis. I think the answer is, yes. I think there is no question that ed is right on the structure of the constitution. The senate has the right to withhold its consent as it has done between 25 30 in Supreme Courts history. Thats fine. This is not those. Merrick garlands nomination as of sunday will be outstanding for 250 days. The previous record was 125. For one single nomination. Oh, by the way, that nominee, louie brandeis, was confirmed at the end of that time period. I think it is right there is no right on the part of any one president or any one nominee to a confirmation process. There is more important interest at state. The really fragile but important point that make is about the court as an institution, the Supreme Courts legitimacy. It has its power not from some official mandate. It does not come from article 3. Thats where its jurisdiction comes from. Its power comes from the fact that we generally perceive and have perceived historically, it to be an institution that operates not without regard to politics but in the manner that is not blatantly and overtly political. It shows some respect for judicial power and responsibility. Thats why we have things like judicial doctrine. When the senate holds a seat hostage on the express understanding not that there are concerns about the nominee, who oren hatch said was as well qualified as anyone you could imagine but for a political calculation that they want a present on the Different Party on the far side of an election to fill the seat. That crystalizes the view of the Supreme Court as an instrument of political power and in the process has the potential to radically diminish the Supreme Courts legitimacy, not tomorrow, not next week, if this goes on, if, in fact, it comes to the point where the Supreme Court is never viewed as anything other than an instrument of political will. It is doubtless true that respect for and poll numbers for the court go down the more it is viewed as a political institution. Steves point has some force, doesnt it . If you make what is at least in part a political argument about the court, you may do damage to the courts reputation. It is important to distinguish between political arguments and arguments based on understanding of judicial philosophy. I have a great deal of respect for Merrick Garland. I have never said a bad word about him, i am not going to, except he is a judicial liberal. That is a sufficient ground for Senate Republicans to say, no, not on our watch. Just, again, as former white house counsel, kathy rumler acknowledged she would have encouraged Senate Democrats to do the exact same thing if the situation were reversed. I dont think that is treating the court as a political institution. It is taking the constitution seriously and taking very seriously the duty of senators. What could our highest duty be but to confirm to that office only people who they think will construe the constitution properly. So, look, whats happened this past year was baked into the process over the past few decades. After all, it was way back in 1992 that then Senate Judiciary committee, joe biden, threatened to take exactly the same course of action if a vacancy arose in that Election Year. The only reason this hasnt happened up until now, is all the vacancies since then have, first of all, been in situations in which you have had a press making a nomination to a senate controlled by the same party as the president. You havent had this partisan conflict, idealogical conflict between the president and the senate. You also havent had any vacancy arise in an Election Year since 1968 when the nominations of fortis and thornbury were blocked by the senate then. Do you mind if i say two quick things in response . It is worth stressing that ed is rewriting history a little bit by suggesting that the opposition to merrick gar lapd has been idealogical. There were Senior Leaders of the republicans and senate saying before garland was nominated that they would oppose any nominee regardless of who it was not for idealogical reasons but because they did not want president obama filling the seat. Thats based on the assumption he is going to nominate president obama is not going to nominate a conservative to the court. This is where the other place we rewrite history. 1988, Anthony Kennedy was nominated to the Supreme Court within a year of the election, a month before the end of the year. Why should that make a difference . The vacancy, as you know, arose in june of 1987, nearly a year and a half before. If you talk about rewriting history, not mentioning robert bork and talking about that vacancy is a rather big omission. My point is just nomination. The larger point that ed is making is that this is all okay because democrats have done it too is the wrong way to look at this problem. It is suggesting it is a race to the bottom. In a race to the bottom where whoever is in power is going to use it to deny the norm, that moderate consensus nominees get a hearing and a vote. The institution that gets lost at the end of the process is the court, which is to say democrats have said things that are irresponsible. That is not to condone similar irresponsible behavior on the part of the republicans that we have lost the sight of the importance of trying to keep the courts above politics. Do you doubt democrats would have done the same thing were the issue on the other foot . I dont know. It is entirely possible it would have. That is not to commend it. That would suggest there is something fundamentally wrong in which the world in which the reaction of a Supreme Court vacancy is to turn it into a political situation. The Supreme Court has nine justices. It was fixed there in 1869 in response to the most tumultuous period in the courts history. Congress tried to take seats away from Andrew Johnson to keep the court out of reconstruction and the fight between the congress and the president. It took the court a long time to recover the credibility, power and prestige it lost. If what we are looking at now is any mechanism of power, any means that congress can deploy to thwart nominations will be deployed on the ground that everything is okay when it comes to the Supreme Court nomination. We are going to look back and say, what happened to it as an independent nomination. To clarify, my position is not that the justification for what republicans are doing is that democrats would have done the same. I think that proposition is true and important to have in mind. The deeper point is that what we are talking about is a longterm battle over judicial philosophy, over different understandings of the constitution, over the role as the Supreme Court. On the left, for decades now, there has been a view of the constitution, the socalled living constitution, which magically morphs to reflect whatever the policy preferences of the left are. If you want to talk about how to destroy the Supreme Court, as an independent institution, it is this embrace of the living constitution that best ensures that. What conservatives have fought against is that very notion. Instead, have defended the notion of the constitution as a document that has an independent meaning, whose job it is for justices to interpret impartially. If you get lost in, oh, we have to worry about what happens to the process. The Bigger Picture is the substantive debate. In the last eight years, this is a court that over the last eight years has given us heller and Citizens United on one side. Oberto fell, fisher 2 and holdmans health on the other. One of two things is true. Either the courts legitimacy comes from the fact that it does not take to one dominant sprue of the constitution but reflects an alignment of different coalitions of thought and it is not beholding to what one side says or it is a byproduct of those who happen to fill those seats. We shouldnt try to pretend this is about law as opposed to politics. As a professor and a scholar, i hope it is the former of those two things. The reason why people follow Supreme Court decisions they dont agree with, whether your least favorite decision of the day is Citizens United or heller on the one hand or burgfeld and south on the other. Why do you follow that . You 23think the court is not simply political. I get very nervous that at end of the day, we can hide behind what is the constitution versus a political end game. I want to ground it in the current reality of the confirmation process a little bit. As you reel off those cases, steve, those are all the same five four coalitions with Justice Kennedy swinging back and forth. It is not a very good argument it is not a political institution. I dont know it is right. I will try to take a longer view historically. I think the court over time has gained power not because it has always decided cases in a way that is consistent with American Public opinion but it has generally perceived to be aligned with public opinion. Brown was ma jurortarian. My point is simply that if the next nominee and or nominees to the Supreme Court are perceived as being there simply because the republicans won the senate and the white house in the 2016 elections, i think that demeans the court as an institution and incentivizes similar power grabs in the senate. If Chuck Schumer turns around tomorrow and says, i will not do anything in the senate but unanimous consent until and unless donald trump compromises on the nominee, i suspect there will be folks like ed complaining thats an irresponsible use of power by the Senate Minority leader. It is the same problem. In a race to the bot testimony, the institution left holding the bag is the court. Lets talk about the trump nomination. He has released a list of 21 potential nominees. He has vowed in a simple declarative sentence, not always the way he speaks, that he will choose only from among that list. Ed, should we take him at his word . Is there a way to characterize 21 names. Is there a theme that runs through these names. I dont pretend to have a full read on all 21 candidates on the list, a handful i know very well, some others i am somewhat familiar with and others i havent heard of at all. Some shouldnt be on the list. Some others i wish were. I think you have folks who have strong credentials and have earned respect across the spectrum. I think it is overall a very good list. He said he will stick to it. I trust that he will i think many of us here will help him to do so by working for confirmation of a good nominee. You have thoughts on the list . I think thats a pretty conventional list. I thought at the time it was handed down that it was meant and quite overtly so to be red meat to conservatives as sort of the kind of folks that you would want to replace Justice Scalia on the Supreme Court. It is conventional not just in the sense that these are folks with relatively consistent conservative credentials. 20 of the 21 are judges. Only senator lee was the nonjudge. It is interesting to think about the diversity of the Supreme Court. There is very little that would diversifyhe court. A couple things. There are nine state Supreme Court justices. Connor was a lower state court judge. A lot of people that did not go as every single sitting justice went to Harvard Law School as you guys did. There are other law schools in the world. I teach at one of them. Steve, if you want diversity, are you looking for politicians on the Supreme Court . There seems intention with your previous position that you dont want the court to look prit cal. I would think judges would be the natural place to look. Those that have shown judicial craft. Some of the most successful justices have had political background. The question is what do they do on the court, are they acting as politicians or justice sns. The court is remarkably ungeographically diverse. We see a very different pattern. The trump list did you reflect that kind of diversity. All of the sitting Supreme Court justices who were judges excluding elena kagan, sat in the ninth or the northeast. There is nobody who sits in any court in those 21 and the one exception sits on the court of appeals for the armed services. All ill say, i think it is a pretty unis your prying list. I suspect that barring something we dont know about these particular nominees, perhaps not going to provoke as much of a confirmation fight as we might have expected. What do you think about timing . When do you think we will get a nomination, a confirmation hearing and an appointment . If wi were advising the trum team and im not, there is no reason to rush. Ive been saying for the last eight, nine months, there is no crisis with the court. The key is to roll things out smoothly and properly. I would be surprised if there was some sort of naming of the selection well in advance of the inauguration. Again, president elect trump could name his selection tomorrow. We cant make a nomination until he becomes president on january 20th. I would guess that if they want to have their whole team in place to defend the nominee, to work the hill, so i would think they probably would be shooting to make a nomination in the first week of the new presidency. By the end of january, with the hope that the nominee would be confirmed in time for the oral arguments in march for the court. I think that assessment is right. I disagree with eds view of the court being just fine with eight justices. I think the justices do as well, not from enter public statements but how they are acting. There are three cases that the court is sitting on that have been fully briefed that are ready for scheduling for argument that have not been. I wonder why they are not scheduling those three cases for agoment before an eight Justice Court. They are way behind in cert grants. I dont think it is because they arent there. I might think an eight Justice Court is starting to look good to you but thats not what im hearing. I have to separate my personal preferences from my analysis of the Supreme Court as a constitution. Im a federal court scholar. It is not advanced by eight justices. It is advanced by nine. Would i prefer an eight Justice Court to almost anyone on the list of 21 that donald trump has posted . Politically, yes. Institutionally, absolutely not. I was going to say having an eight Justice Court has no impact on the work of the course. It is not a constitutional crisis. The fact that there might be three cases on which the court is deferring argument, i dont think thats a constitutional crisis. If things had gone differently with the president ial election but not the senate and they were holding it open until 2019, would you think it is close torey a constitutional crisis . The court can function fine with eight justices. I dont think it is a significant issue at all. I think there are two obvious problems with the eight Justice Court. The inability to resolve cases on which they are otherwise split 44 whether for idealogical or other reasons. The other is the ability to resolve circuit splits. The reason we have a Supreme Court in the constitution is because of uniformity first and foremost with the inability to resolve disputes, you dont have uniformity. If thats the reason we have a Supreme Court, why doesnt the constitution say the Supreme Court has to grant review in cases where the circuit splits. Why hasnt Congress Said that . Why hasnt the Supreme Court said that itself . They routinely deny cert in lots of cases where there are circuit splits. I am happy to have the court make that choice as opposed to the president and the con dpres. It sounds like, steve, you are not expecting a lets assume a conventionally highly qualified candidate who is also quite conservative, what kind of democratic response do you expect . I dont know. I think there are two scenarios and not clear which is going to play out. The first scenario is the sort of hostile reaction scenario, which in response to what happened with Merrick Garland, democrats pull out all the stops and dared them to use the nuclear option. I think the scenario is someone who does not seem that radical of a shift from Justice Scalia to hold fire for the next appointment, basically, actually not go to the level of Senate Republicans over the last year and have a real serious when may be a voted against nominee on the yard, but in a full vote thats not filibuster. I dont know. I think those are two options that are probably being discussed among the democratic leadership in the senate as we speak. Whether the change in leadership of the judiciary committee, of the democratic members will have an impact, i think that is yet to be seen. If the democrats were to attempt to filibuster, what you think you think the republican response would be. The republicans would do exactly what the democrats did three years ago to the filibuster of lower Court Nominees and executive branch nominees. They would abolish the filibuster. Thats one back a few years. I think its important to understand what happened back then, especially in light of recent efforts by senator schumer. Three years ago in the space of a very small number, Senate Democrats said no more, were going to abolish the filibuster. Now republicans had undertaken to do the same thing back in 2005 when Senate Democrats had first launched their campaign that filibusters against lower Court Nominees. Unpredepartmented. But, they ended up not going through that in 2005, but in faced a much smaller number of filibuster efforts. Harry reid nipped the filibuster. At that time, there was planned parenthood and other groups according to widespread newspaper reports. We are very concerned that the filibuster not be abolished in the abstract for Supreme Court nominees because they were worried that might play out in practice in a way that would make it easier for a republican president to get confirmed with an anti row nominee. That is the reason that the Senate Democrats left the filibuster in place for Supreme Court nominees. The thinking was, lets wait until we are in the midst of battle and then will do it. The other day, i dont know if this was in the spirit of bipartisanship that they left the filibuster in place for Supreme Court nominees. Harry reid, over the the past couple months and other democrats have made very vocal statements saying that of course theyre going to nuke the filibuster for Supreme Court nominees of Hillary Clinton as soon as Senate Republicans asked to filibuster. I think that republicans will act in kind, if and when the say democrats choose to push things. I will say, i dont think its about who started it. I think the answer is yes. If we want to talk about lower court judges, lets talk about it. For all the attention thats been given to the scalia and garland nomination, there are 102 pending vacancies in the lower court today. For the end of the second term of the two term president , thats unprecedented. 3232 of those have been classified by the u. S. Court not as partisan entity but as a emergencies because of the pressure they place on other dockets on the rest of the court so this is not just about the Supreme Court. This is about denying to a democratic elected president , a twoterm president , the opportunity opportunity to fill the court. Youre not looking at the big picture. Compare and the numbers are identical. You can slis them and say that oh how many emergencies were there in 2008. No one on the hill ever takes so called emergencies. Thats because theyre not the ones with docket pressure. I dont have the answer to the question. What happened back in 2 20072008 when president bush managed to get some nominations come from, the white house caved. They had history of giving into Senate Democratic candidates. Those with the folks were nominated. President obama, praise it or criticize it, hasnt been willing to strike deals. I dont want to go through a list of the 59 pending nominations. Thank you. I will say briefly i think its hard look at the list of 50 but as the 59 most judicial thats a much more compromise less than you might think. In many ways slice and dice, whatever its about the lower court lets focus on the Supreme Court for the time being. The stakes may be perceived to be a little bit lower for the Justice Scalia see because broadly speaking we expect a conservative to replace the conservative and returns to the status quo more a list of a new. Is that broadly speaking correct . Even if broadly speaking correct, is the more nuanced view about replacing someone of Justice Scalias stature . I do want to be too much trust houses democrats. The john stephen is give it is a reasonable one. In terms of whether whoever is elected will be like Justice Scalia, thats, you know, huge role to fill. The Supreme Court has dealt with a lot of difficult issues. A lot of challenging questions statutory and constitutional methodology. Now can expect anyone to hold the same set of views, the same results across issue after issue after issue. Justice scalia reached liberal result, a whole host of areas, criminal procedure, for example. Food is what some folks on the list might lean the same way, others might go the other way. There could be some areas where the be differences. I dont think those will likely be the areas that are of particular concern to democrats. I think thats probably right. I wonder if the concession judges are going to hold different views and so was inconsistent with this one conservative vision of the constitution which is been pushed but all the recent nominees. I do think that the criminal procedure area is why think is perhaps the most room for movement. There were a series of cases forgive which rival file. He was the fifth about joining the more democratic the numbers are quite large in criminal cases. There are 25 cases where Justice Scalia is in the majority and a i4 case case voting for the criminal defendant. Responsible for the clause, so i think its possible that a nominee whether on the list or not on the list could perhaps be more consistently progovernment in that area than Justice Scalia was. But like i said im not sure that would be the wedge as compared to, say, so the michael vick seat opens up on the court. So lets imagine ourselves back in that era that existed since Justice Alito joined in 06. Justice can be in the middle. Are kind of cases on the docket now or on the horizon where we might see some movement in major cases because we are back in that area . So i mean the most obvious candidate will be mooted which is attention to case out of north carolina. Which is all about a department of education interpretation of the regulars which the new department of education can simply rescind. I do think there are some hot button issues on the way to the court, folks who live in my National Security universe there are a couple of recent decisions in guantanamo cases that will put guantanamo back on the courts radar. I dont know looking at this from their obvious standout examples. Trinity lutheran, not scheduled, by the case where the although on not sure its 54. Spirit last you read a couple major 44. When an immigration. I take another case with a Top Administration doesnt need to go to court because they can just change the regulation. Right. I assume that case will simply die away. What about friedrichs, the public in case, the First Amendment challenge . That went off 44 and versions of the case coming back. One could imagine that is resolved. Right. That is i think you would need as your question indicates entities to come up to the court but if there are those in the pipeline, i think justices could be very ready to grant cert and decide that case. The last term, the passing of Justice Scalia was the dominant story but not far behind it was that very surprising to me at least Leftward Movement of justice candidate for the first of his great votes to uphold the affirmative action program. The same justice who is in the majority in carhart jointed Justice Breyer is very powerful reintegration of a womans right to choose. Friedricfriedric hs i think is perhaps the counter example. I think this is why perhaps it will be quite as much blood spilled over the scalia see because of the next day because i think a list of the moment Justice Kennedy has this date a little farther to the left and he been a blast previous years. Its going to take a fifth vote from someone other than kennedy to scale back on those cases. I think youre quite right that theres been to the surprise of many a move to the left from kennedy. Do you have a theory . If i were being obnoxious i would say commonsense. [laughter] but i dont know, adam, annotate to speculate. Its been my experience of trying to teach Justice Kennedy. As the captain sisson casablanca, he blows with the wind. Theres a lot going on behind the current conditions. I do wonder though if the specter of the Trump Presidency which he was a think about lester but is very much thinking about now might further pushing and, frankly, chief Justice Roberts to be especially thoughtful and careful about question separation of powers, about question of discrimination in ways that is really six to eight months they might not have been. You have a grand unified theory of Anthony Kennedy . And if so could you teach it to my law students a . I cant say publicly. Look, i think that, look, i dont dispute Justice Kennedy has move further left in recent years. I think the genesis of this way back in 1992 at the heart of liberty, the ability to define a content of ones own existence, of meaning, finish of the universe or whatever this is a. This sort of fortune could you understand of the world, who knows where it might lead. I think theres a lack, consistently been a lack of rigor. I do think it shouldnt surprise us that it is in some ways reacted to a perception of how well the institutions of government are working. Theres been a lot of question about why, for example, the sprinkler was so active from 20042008 in terrorism cases, pushing back against, for example, Guantanamo Military commissions, things of that nature then sort of step back in 20092010. I dont think its crazy to speculate that there was some sense that by, separation of powers problems they could lead to more individual rights question for the corporate one wonders if we see some novel and new separation of power issues in the next administration if a similar coalition might reemerge on the court. So i think we have a general consensus that the next nomination is what is going to change the world. But we may have further nominations under the Trump Presidency. Which was might those be . Look at the demographics, which obvious they are not one of reliable but you would expect the next vacancies to come from the three oldest justices. Justice ginsburg is add. Justice kennedy is 80. Justice breyer is 78. So those will be the most obvious. I have in mind also that the senate which looks like youll be 52 republicans, 48 democrats is very likely to be secure in republican hands after 2018. In 2018, 25 of the 33 seats up for election are currently held by democrats. So my first turn or otherwise volatile democrats. The republicans are not exactly a blue states. Heres what might happen over the next two years. The senate will swing dramatically into democratic hands of my point is its reasonable to think were looking at thats not what happens over the next two years, not what happens over the next four. I think its a good that you will have one or two additional vacancies during that period. If i can be morbid imagine the question, if its a vacancy to the right it will be voluntarily, Justice Thomas. Is involuntary, actuarial tables are what they are. I think its much the same that happened with Justice Souter and stevens stepping down. I guess you were what Justice Thomas might actually be perfectly happy to stay on the site in the next couple years especially if he is confident his successor will be some who shares many of these commitments. I did any of the three justices asked me to lead by choice between now and 2020 election. Of what surprised me greatly if Justice Thomas would step down voluntarily spent lets test that. You say if the court if you does political, its authority diminishes. Yet the justices do when they leave voluntarily seem to make an effort to lead under a president who shares their worldview. Isnt that in cuny a political motive to the courts . It is to the justice but, i dont want, i would help folks dont get me say that the court out that the cortisone of a political. Thats not what we know are what we should hope to be true. It shouldnt be beholden to political process. That has been the transistor at thats what is in jeopardy. Are the politics behind the decisions of justices may have . Just the are their politics behind the choice of president s make about who theyre going to nominate . Absolutely. Thats always been true. Those two things do not have themselves deprive the court of legitimacy or of judicial power. Its when the perception is the reason why case are being decided the way they are is because of a particular price estimate a particular view of the constitution. Thats when we get into trouble. The confirmation process is inherently political. Or by blocking folks who you think would transform the court in the wrong direction no surprise at all. It used to be the case you do politician on the sprinkler because what keeps it understanding in this country that law was different from politics whats broken down over the last three decades largely thanks to the Legal Academy that stephen is part of, is this understand of law as the same from politics. That is a deeper crisis that leads to concerns about the politicization of the court. I like how he plays the law professors for breaking down the distinction between law and politics spent i was a chief counsel, just general counsel to clarify. Steve, when i was general counsel Ruth Bader Ginsburg was confirmed 96three night. Justice breyer was concerned 879. Why . Because the ammunition such as it was was to try to derail the nomination of chief justice rehnquist. The senate was controlled by republicans. If you want to understand the history of confirmation processes over the last three decades, the first thing you need to look at is who is control of the senate. Thats going to tell you 90 of what you need to know and that they can express 90 of what happens. So to suggest its recent Democratic Party and other law professors who are to blame, does anyone know the last Supreme Court justice to be confirmed, democratic, to be confirmed by republicans have . 1895. So i do know we can say is and he was a giant. [laughter] you know, i dont know we can say this is some recent phenomena. I think it is right politics was have the a lot to do with politics. I do think something is different from all of of the prior kpaexamples. All of these prior examples and i think whats different is not necessarily the longterm healthy for the court even if its super healthy for conservatives. So theres nothing different and i will cite the comments that Obama White House counsel made yesterday indicating she would recommend exactly the same court. Joe biden said back in 1992 this is baked in the process and the reason it hasnt the reason is because the senate has been in the hands of the party comes in part as the president. Will so the natural conclusion is whenever theres any divided government in washington the right answer to actual conflict is inaction, right . The right answer is do nothing because theres thats not a natural extension of my argument. How is that not . Theres a thousand up and a passing oped in the Washington Post in february about how the real, the lesson we should we take away from the republicans reaction to the scalia vacancy, before garland had been nominated, is that theres no principle in the nomination process whatsoever. Its all about power. The sooner we accept that, the better we will all be. The fast we can dispatch having conversations like this. If thats sure what that means is the only thing that matters is how you consolidate and control power. If you agree with that, then why do we have a Supreme Court if other than to be an instrument of the power . Imagining the Supreme Court where one of the three oldest justices is were to leave the court, he replaced by open nominee, thrusting chief Justice Roberts into the median seat called the swing seat, what kind of world would we be in . What kinds of precedents might be under pressure . Well, of course a lot depends on who these two justices who, on the court are but i think a prime target, a case that needs to go, a case that has corrupted american politics for some four decades as roe v. Wade. Whether its 54, sex3, 7tonight, i hope that is sooner rather than later. There may be other cases as well and im sure steve has long listed its interesting over the last few months as some law professor facility over liberal Supreme Court, they put out their own hit list of cases they would say were wrong the moment they were decided, vacation be overruled immediately. I dont think conservatives have a long list like that. Cases will come up and i think what youll see really is an effort on the part of the judicial consumers to work these things out the one thing weve seen in recent years is conservatives divide on a host of cases. This isnt, ive never made the argument can do whatever has that originalism or textualism yields easy answers to all cases. There can be difficult questions on which intelligent judges can divide. Whats curious is how often, almost uniform and everything is a liberal justices are always together. Spin theres a couple Different Things i should probably respond to. First, i havent affiliates with any of the liberal law professor conspiracy lists to which you are referring, so thank you for that. Second, i think part of what you dont see separate opinions from the left in those cases is because they were about losing justice can be. Not because they endorsed the rationale. They just care about results. You want to talk of what happens when a conservative disagrees . When Justice Alito writes anything that completely Justice Scalia writes in part of the i agree with everything, i would just overrule. Not something where one side is guilty of. Your counter example is a case in which conservatives are in disagreement . Liberals are always together and dont care about reasoned decisionmaking can just about results. My point is simply thats more complex to say liberals always do this and the do this and do conservatives always do that. Why dont you get a counterexample speaks of what, a case where there in disagreement . Justice ginsburg, begins with the rationale, understood and equal protection. What is a case in which unlike some of her concerned colleagues she had more faith in stare decisis. Leaving that aside she is others. Thats her but our force although its not like the left is the daily people who ever did that. Justice scalia once or twice said things in public about pending cases. I think on one case he recused himself a month before the oral arguments you talked about how we didnt think is english but whether any combat should be tried in civilian court. He made clear his line and other justices positions are taken in previous cases. He never had a case at that point. I dont think its worth for us to quibble over historical record. Leaving that aside i think the larger point is the unlike question at as with which case of the cobalt will. You agree then with ed where one vacancy away from the end of roe v. Wade . Ive heard that story before. It was 1980. I dont think that turn out the way and expected it to. Donald trump said during the second or third debate that they would automatically be overruled once he gets his picks to the Supreme Court i think for a couple of nominations in the 1980s and network that was the same three edited workout. Do you think the republicans learned any sure how well it will be applied is another thing. Justice souters nomination is an effort to put a stealth conservative on the court at a time when you had a Senate Democratic majority. It carries a lot of weight with a lot of folks. Steve is absolutely right that for years people have been saying this justice will be the fifth vote to overturn roe and it didnt happen. I clerked during the year of planned parenthood. Quite aware of that. But look i think what you have right now is a much more sophisticated conservative legal requirement. I think the failed nomination of Harriet Miers illustrates that. I think it used to be that, and this technology, the internet, all sorts of reasons that explain his, but the growth of the Federalist Society is a big, big factor. But basically trust us, we know what we are doing is not something that the conservatives will accept any more. I agree with all that. I was a briefly a role in which john roberts is the swing vote, a very interesting what edited one from we are today. I have a lot of faith in the chief justice to care very deeply and passionate about preserving the separation of powers, not preserving the role of the federal court in our system even if we have slightly different views. I think i would have a lot of confidence in chief Justice Roberts would not acquiesce an effort by the political branches to limit the role of the court. I have less faith in chief Justice Robert to protect individual rights i care about anything ago has all of us with either started to care about. And i think the last place in with the categories with the most interesting account of the least sexy is administrative law. I is a very real possibility would be a paradigm shift in administered law and rules which chief Justice Robert is the swing vote. With much less deference given and power delegated to the administered space spirits that might suggest the court might actually to keep a transgender case which is a case about administrative law. We will see what happens to that. Ed, let me ask you about something president elect trump said on 60 minutes and, i found these two thoughts hard to reconcile. He was asked about obergefell. He said Supreme Court is so that we dont need to go back to it. And then he said but roe needs to be overturned and issue returned to the states. It would seem to be the cause of tissue im not sure i follow that distinction. I was on a Panel Last Week with law professor who made basically the same Light Division of donald trump did. Look, different people can have understandings of when president is subtle and not. In planned parenthood, the joint opinion Justice Kennedy, oconnor and souter said they were calling an International Division on this issue. They thought it would be over at this point. That didnt work out so i think its entirely reasonable to recognize that the controversy over the supposed constitutional status of abortion remains very heated. Spirit is that not true for marriage . Thats not true for planned marriage . Look, i think obergefell is plainly wrong and i believe that wrong president should perceptibly be overruled. The fact of the matter is that the court has the ability to transform or to ratify Patricia Maisch and the public understanding of marriage much more easily than it has the ability to deny the biological reality of a human being. Its also true of course samesex marriage is out in society, have a certain enduring impact that is going to affect peoples perceptions in a way i think you have anything comparable entity with the question of the right to kill the unborn. I think women who would otherwise be pushed into back of the abortions might be merely disagree see thats exactly consideration the political process can fully take into account. The normalization of societal again, im not, i said obergefell should be overturned the onset of explaining why i think that its conceivable as donald trump and others argued that one could view the stare decisis status as one different than the other spit im sure donald trump was referring to the stare decisis status of these two cases. You know space if that guy which is stop using all that latin and legal jargon. He meant roe is 43 years old and obergefell is one year old and in a situation it seems like row is less reflective of the current Supreme Court then obergefell is that what that mrs. Is the whole limits of which is the most proabortion decision the court is headed out not since casey but since roe. I think its a similar move, and things are both wrong and decided. I think theyre both rightly decided. Thats my prerogative. Its an effort by donald trump to draw a different line than what i suspect irwin was trying to draw and perhaps not want inform my understandings of the court. You would think it is a reliance interest it would be in the older case, not the newer case. I would which is why im splitting it get away. I think it is touch on the political ground as opposed to the constitutional reality which is i think abortion will remain more of a hot button issue in our content with Public Discourse than gay marriage. I think that is nothing to do with the constitution. And everything to do with the prevailing and evolving societal mores. Justice alito yesterday gave an interesting speech at the Federalist Society which viewed one way could be thought to be kind of in Agenda Setting for what the Supreme Court ought to be look at, one of the interests that a court dominated by concerns justices might want to address. He raised three or four things. He seemed to think that First Amendment values are under attack in two different settings, in resistance to Citizens United. He was unhappy with the fact that some 40 senators he said a proposed a constitutional amendment to the First Amendment to come as he said, privilege the press over other kinds of corporations. He was deeply concerned about what he would call clinical practice on college campuses. Im not sure mostly how those, but you can imagine public university. He seemed to suggest Second Amendment rights have not really been followed even after the heller decision, and he said that religious Liberty Continues to be under attack in conflicts between pharmacists and people who make cakes and saw. That seems like a fairly conference of you of the world, and i wonder maybe since were taking those, ill ask you, ed, are those areas where a court truly dominated by conservatives, which it is after a second trump nomination might take a different view of things . I think yes, and my welfare i think Justice Alito was being a little more careful and identifying default lines that he perceived. But i think these are some issues that are very divisive and the more conservatives you on the court, the more likely you would be to get a consensus contrary to where the court hasnt had any. I dont know i disagree with it. The continual effort by congressmen and legislatures to legislate around child penelope. It strikes me that if the question is speech, its not obvious that more nominees room remove the needle that radically. The other side is religion. I think that is where there is a real potential downshift in a court where john roberts is the center seat. Where i think the Missouri Court is a very small and modest flashpoint compared to the tension so i think that could be a very sensitive topic in the coming years. We will turn to your questions adjuster second. Let me ask one other followup. We talked about the eightmember court, but they did issue some model decisions and one of them. Really, even by their standards, quite modeled. Im thinking in particular the Little Sisters of the poor case where there is a clash between the regulations and the Affordable Care act guaranteeing free country to women. Also religiously these groups rejecting that on religious grounds. They sort of that letter you go in and figure that out. It struck me like of Family Court Mediator might do what you think becomes of those kinds of clashes . Even this year or next your . In terms of the obamacare regulations, i would hope those controversies are pretty quickly muted. I think that court punted its hard to see its action in any other way, but i would think that in relatively quick order the new administration would eliminate the requirement that was the source of the conflict. Yeah. I guess im going to be fascinated to see how the new administration handles the aca. I dont think its going to be quite as easy as perhaps candidate trump thought it would be. I think that even if they find a way around the dispute over the exception of that religious nonprofits, there will be other litigation. I dont think the Supreme Court has seen the last of the aca. Right, agreed. So, this has been a wide discussion very easy to moderate, but we would love to get some questions from all of you. Here comes the microphone back there. I would like to hear your opinion on if several retired Supreme Court justices that are out there and confirmed, would the president have the chance to take the bench again and with that require the senate to take any action . Im just curious about that. We have three justices now who have retired, i forget now, the specific designation. The kind of have seen your status. Yes and are still able to set as lower court judges. No, they cannot be redesignated as Supreme Court justices. I think they resign the office, that office has been felt so you would have to go through the whole process again if you wanted them. If i can just be a nerdy professor for a moment, i do think commerce good, by, by statute, provide that in the lack of a full bench, a retired, statutory out retired Supreme Court justice could sit by designation to provide, that was how a number of Supreme Court will fill open seats. But, i dont dont think there would have to be reconfirmed. Congress would have to authorize them to do it. Congress could do that midstream with respect to already retired justices or only with respect between those appointed to the office of justice later on. I imagine the constitutional objectives differ between those two cases. My own personal view is that the answer either way would be the same and i think it would be within Congress Power to provide, i probably agree this is a wholly academic question. It is true that among the many reforms that have been discussed at the Supreme Court, having nothing to do with the politics of the moment, one of them has been for cases of recusal as opposed to open seats providing mechanism for someone. I think thats a conversation worth having although not necessarily right now because of the political impossibility of the statute you would need to make that happen. You would want to do it behind the veil of ignorance or something because all three of the potential retirees are moderate to laughed and thats not going to fight with anybody. Ive also heard in private Supreme Court justices say that in the constitution there should be one Supreme Court and the sounds like there would be different iterations of the Supreme Court. Maybe. This is the same debate about whether the court could be allowed to sit in three justice panels. The court actually often acts through one justice, when you have emergency applications, the socalled data docket. Its not open and shut on this question. I think there is a more room than we might think in a different world in a different time. Other questions . Yes. Please. My name is alain. This is beyond fascinating and stimulative. Weve talked about lower court processes, but it seems to me a lot of these things, the concerns we have with the deadlock and whos in power, all of the nominations for District Courts and circuit courts,. [inaudible] of course, in theory, that could happen. That hasnt happened, but there has been a real slow down in the last year of the president s term and, as i indicated earlier , you end up only with real consensus pics or surrenders, getting confirmed especially after some point in the late spring or early summer. If you can forgive me for a slight tangent. I do think the mentality is not limited to judicial nominations. Its the exact argument that Senate Majority leader tried it out for why they would not consider passing a use of force authorization for isis even know theres a very rich debate on that question. You know, the separation of powers, scholar in me worries about a world in which ordinary things are suspended by default because its an Election Year as opposed to ideological reasons. In that case, it was not ideological. They actually support the idea. I think there is a larger conversation that hopefully we will keep having about why the eighth year of a twoterm presidency should be any different from lots of perspectives, not just traditional nominations. I worry what it means when Congress Passes less legislation and does less work in the eighth year for president s who might feel duty bound to exercise the powers Even Without Congress and thereby be unhealthy in the longterm. If they havent already lost the senate in the house in the eighth year, that would make things easier would net. Yes or no. I dont think this is the last time well have a president in his fourth or eighth year that will have a hostile congress. President s lose seats in midterms. Does that mean therefore, president s should literally have a year and a half to govern and the rest of the time we should just hope the best . Im a little more, maybe naively optimistic that we can do better. Does the constitutions structure suggest that the branches can be held accountable by the voters who, at least in theory, might have been unhappy about the republican strategy. I would love to hear your views, but it doesnt seem to me that they paid up little price for what at the outset seemed like a bold and controversial strategy. I can speak from nfl experience that i have acquaintances who voted for donald trump solely because of Supreme Court and had that not been open to them, they wouldve not voted or voted for somebody else. So thats an affirmative benefit. Indeed. I think thats inevitable. Thats natural and i think this is why Mitch Mcconnell is being commended by conservatives, by republicans for holding his ground and for digging in. Again, i just want to try to suggest that if we tried to take the long view which is something that we become allergic to doing in this town, the longview is less positively disposed toward obstructionism as a policy in so far that the damage wreaks havoc on the institution. It seems that the selection has dispelled any fear of obstruction Going Forward so. Why is that true . If Chuck Schumer does come out and say im going to deny unanimous consent for every single thing that happens in the senate and why make and a duet, it, not because i have concerns about policies but because turnabout is fair play. When you criticize that. There are all sorts of political constraints on how senators ask. You seem to be operating this round of logic divorced from political reality. Its a good thing, the framers understood that of course there will be political pressures on senators and representatives, and theyre shaped shaped by that and constrained by that. So they were not going to do that because hes not willing to pay the price for appeared his colleagues will. If he decided he wanted to take that gamble, then, then hes ready to face the voters. I have made clear from the beginning that its perfectly fine for folks to offer criticisms, whether or not i agree with them of whether or not, what republicans did on the garland nomination. Ive spent a lot of time criticizing law professors and others who claim there is some sort of constitutional duty. Imi fire at folks making an argument that i dont think, given their own record, but i dont think they actually believe, an argument that does not pass the laugh test. I have never criticized anyone for making political arguments against the republican. Again, thats exactly what we ought to be debating in the political round. What is the responsible course and what is an . You indicated that you thought, if i heard you correctly, the democrats wouldve been rewarded if they had taken the same course of conduct. I dont know that thats the case. I think democrats wouldve enforced to take the same course but they may have well been punished for doing so. Will he have is an opportunity for the people to speak their voices. I think thats a good thing. Other questions . I was curious, this my call for speculation, but in the event of nominees on the court, could you talk a little bit more about this paradigms shift also may be a scenario where President Trump wants to push through certain initiatives on immigration policy that congress is in support above and how the hypothetical court will respond to certain orders involving that kind of initiative. I agree with what steve had to say earlier about possible changes over the longer term administer the block. I think its very difficult to discern with respect to any of the candidates on the list where theyre going to be on these law issues. I do have every hope and confidence that none of these folks would change their views to accommodate views on a particular issue. Views on a particular issue. I think. [inaudible] you think you could easily see tension between the President Trump who wants to aggressively wield his executive power and a court that is nervous. I think it would be a very easy consensus for them build with the democratic and pointy on the court to use administrative block to rein in the President Trump and i think thats one area we could see new alignment ideologically. Yes. I just want to turn the question back to separation of power for a minute. They said you would not be bothered if the senate extended the blockade passed 2019. Are there other scholars like Michael Ramsey that would say it theoretically doesnt have to act on any nominee and if so how does that not conflict with article three of the Supreme Court . Interesting question. I think what i said, in a Justice Court, i dont think we present a constitutional crisis over an extended period of time. Does the president have any obligation to nominate Supreme Court justice and asked that question . They say the President Shall nominate by the advice of the senate and the point a whole range of officers. Summary about imposing an obligation to nominate for vacancies, if thats the case, president obama is in grossly in violation by failing to nominate for all sorts of offices but i think its more plausible as one scholar argues to understand the shell clause in terms of setting up how governments operate in the first place. Who shall nominate . If president washington had never nominated anyone for the Supreme Court and the Supreme Court had not gotten it up and running, i think that would be one question that can be very difficult to defend. Where we are now, i dont think a president would have an obligation to make a nomination. Of senate would have an obligation to confirm any particular nominee. The president will have an incentive to nominate the vacancies he cares about. The very fact that you have that incentive makes it for two it is to. [inaudible] i will just say, federal law currently provides that for purposes of the Supreme Court, a quorum of justices. Its an interesting question whether a scenario in which the sitting justices actually fell below six. The justices themselves might believe that requirement is unconstitutional. I will say, i think your question highlight 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 day than is its a constitutional violation therefore someone can walk into court and get a remedy. The issue is we have a crisis because two institutions try to stick to their perceived understanding of power have engaged in mutually destructive action. Its not a basis for a lawsuit but it is for the Supreme Court in a power f setting. Were just not there. Doesnt get at the destruction of the Supreme Court no, i imagine if kagan was the only one who can be nominated to the Supreme Court because of constant politics in congress. Unfortunately we have these things called elections that make sure that never happens, except we also had an election in 2012 and 2014 that should have had consequences and apparently did matter either. I think were in agreement steve that at some point, theres a certain hypothetical that we can get to a point that we say theres a constitutional crisis. We have a court who is unable to act. That doesnt mean anyone has acted in violation of the constitutional provision, but its nonetheless a crisis. Again, our system of elections conditions, senators and president s not to act in such a way to provoke that. We are so far from a that i think these wild hypotheticals shouldnt distort our understanding of where we are. I guess the place where i agree is how far we are from app and i think folks for lessons from the elections of last week see victory for Mitch Mcconnell and seaworld where these tactics can be rewarded and if demographic patterns change in a way where one party is going to be insured of relative longevity, i could see both criticizing this as a powerful useful precedent. The bottom line here is the bias government will be paralyzed. Some illustrate why i think thats overstated. The argument that Senate Republicans made it lets have the election come. It isnt lets keep this open forever. I think it is highly implausible , one straight, by one senator, i think they are misstating what they just said. Theres no consensus among republican senators that no matter whom president elect hillary nominate for the court will not have hearings or up or down votes. Thats just not can happen. If the game of chicken. At the game a negotiation. This is politics. Dont take the statements as though this is something that is iron cast in the not quite budged from this when they pay a political price. Other questions. We have a few minutes left. We have answered everything. Have we covered it all . This is insight. This is mike stern and thank you for interesting discuss. It seems that your agree on one thing and that we have a serious problem on the eroding on the politics. The only question is which one of you is going to give in. Well, its what we see as mattering. Since i dont think thats going to happen one of you getting in and is there any way to solve this problem . And i agree with you is the problem and i tend to agree with you and thats positive and thats another way of addre addressing. I think the underlining cause of the division over the role of the court over constitutional interpretation. I said three weeks ago at an event when i was very pessimistic about what would happen in the elections that the only way this impasse gets resolved is for one side to crush the other and i was into spitting than that was my side that we get crushed. I continue to believe that the only way this ever really gets resolved is for one side crush the other. If they really want this to and, he should be cheering for liberal justices to retire meant to be in place so we have a majority for decades Going Forward. It is true that ive spent more time in the past ten days talking about how the more horrible the next four years are the better it is to believe in and thats a horrible thing to come to terms with, but it does seem very real. I think the right, there are two possible ways that we solve quote unquote and one is members of congress start acting like institutional responsible citizens as opposed to partisan packs. Thats not going to happen. I aspire to that happening. I aspire to a world where the new democrat comes to the house and says, where are the republicans, i need to meet the enemy and they say the republicans are the opposition. The senate is the enemy. Those days are gone. I aspire to those days. Failing that and the solution is to normize the Supreme Court nominations. I have not always been a fan but i have come around in the last year to proposals by folks like professor carrington who basically have nine justices serving on 18 year terms where it is just understood that every twoyear the president is going to be able to pursue nomination with an understanding that the senate takes up responsibility to confirm at least a sufficient moderate nominee in that situation and therefore there is nothing applied on who dies when, theres just a stable, that wont solve everything because of course the senate can still engage in obstructionism, but i think it would be harder to be an obstruction less. It would be so weird that it was an election they were going to stop acting, but i will say, i dont know waiting for it to her and down is the right way to solve this problem. I think it was only because the court survived its next crisis which was fdr i packing plan. Im not so saguin about the prospects Going Forward. The proposal would require a constitutional amendment . Theres debate among the crazy liberal law professors ed refers to. I will say that i will align myself with the camp that does not think it will require an amendment, as long as you keep paying the jutses after the 18th year, as long as they actually are still carrying out some kind of duty and receiving a salary for the rest of their natural lives not only does it not need a constitutional amendment but can be applied to existing justices . Im less sure about that. Im willing to accept that i could be wrong about that and its not going to happen anyway. The weirdest thing about teaching federal courts and law school, many of the most interesting questions never happen. Thats a good thing. And i think were heading to a world i see one of my former federal Court Students laughing at me from the back. I think we should be happy with the fact that it never happens and i worry were going to have more of these questions raised and have to be resolved now than may have otherwise. Is it your view that crazy liberal law professor is a redub dant redundancy . Maybe. I do not include everyone, those adjectives are restrictive, not redundant. I dont see how we ever get to the, adopting a proposal like the one steve recommends, which i think has something to say for it. Who knows what the unintended consequences of that would be. Im sorry to say weve run out of time