>> trump: -- >> as a practicing lawyer i followed the supreme court for many years and became alarmed in recent years reading the cases of the 5-4 decisions and the 6-3 decisions which seemed to be decided along partisan line so had the liberal wing of the court, all aopinioned by democratic presidents and the conservative wing all appointed by republican presidents, and they were taking political positions which could easily be identified with the ideas of the respective parties.oducti about thing wed care bit. excerp rights and preproductive rights. >> let's look an an exert. you say the court's dramatic porlarization is a recipe for the undermining of our greatest institution and has not been fully appreciated by most otherwise well insured americans. what did you mean by that? >> guest: there's lessis confidence in the decision and to public at large doesn't't accept their decisions and afte, all, the supreme court is alexander hamilton, doesn't have an army, doesn't have any money so its power comes from public acceptance of its decisions, and not that we have to agree with them but we have to agree that there's an -- accept there's a rule of law and they are the final word on the constitution. >> we are talking with james zirin the author of "supreme by partisan." he is also a form are assistant u.s. attorney for the southern district of new york, where he served in criminal division under robert morgenthal, has the supreme court always been partisan. >> guest: never in my view as it has been lately and of course has always been partisan because of the late justice scaliaau juinted out, justices can bebe partisan. what is interesting is you go back to some of the great justices, oliver wendall holmes, holmes was i opinion bed arepublican, theodore relevant. they're views became the laugh it and about polarized along party lines but rather based on their shared view of the law. >> okay. our viewers can join this conversation about partisanship and at the supreme court with james zirin. dem cranings.th >> a gallup poll took a look at what americans think. how americans think the supreme court is doing. whether they approve or disapprove. it's currently 52% of americans disapprove of the job that the supreme court is doing compared to only 42% that approve. the approval rating has been down since about 2010, since then we know the court has issued some big controversial rulings.rs how have those rulings affected public's confidence in the to court. >> guest: i think that it all depends on whose ox is being gored. you take the gay marriage case, with which i happen to agree. many, such as the four dissenters believe, that the court was not applying thethe constitution, because neither marriage or gay marriage is mentioned in the constitution and would have been unthinkable in 1791 or 1868, to any of the people that drafted the constitution. so as chief justice roberts said it was a great victory for gay rights if you support gay rights but hardly a victory for the ok. constitution. >> we have at scar on thefr democratic line. you're on we james zirin. >> caller: good more than.on >> guest: how are you. >> caller: fine.e. i called because i wanted to get your thoughts on the mandatory minimums that president clinton -- i'm a fanatic and i followed clinton and voted for hillary in primaries when obamaa was running, and i finally voted for president obama in the general election. but i wanted to know, clinton's mandatory minimums, what are your thoughts, being an attorney, and just to comment on miss mcginnis, i find it intriguing the deficit it 600 billion and yet the defense budget, congress wants to push it up to 600 billion -- >> let's keep this scruggsgsco discussion on the supreme court and the law. >> guest: as a general matter i don't plouffe of mandatory minimums. should be left in the discretion of the judges and because of mandatory minimum sentences, i think our prisons are overcrowded and we have become as many have argued anciety. incarcerated so-so society. p the people court has not determined whether mandatory minimums are cruel and unusual punish: it's something for the congress to consider and i would support an effort to leave sentence together discretion of the trial judges. >> on the front of front ofas "usa today" talking abouthe houston the next president could shape the u.s. supreme court. says a victory by hillary clinton not only would bleak the glass ceiling at the white house but shake the foundations of the courts marble palace, leading to the first liberal majority since the vietnam era. donald trump selection would continue to perhaps -- or perhaps even advance conservative control for decades to come so the change in personnel could happen fast beyond the late justice scalia's seat. three other justices are 78 and 83 years old. the ideological shift may take years to play out, particularfully areas of law that have been relatively stable for decaded. supreme court experts predict repep curses from the 2016 election will grow in significance over time.ce do you agree this is a monumenttive election for the supreme court? >> guest: absolutely. think the supreme court is ideologically at the crossroads. we have one vacancy. it's been philadelphia with a moderate -- filled with a moderate, a juris,mermer rick and has been blockedded on partisan political grounds and further christianities to thewhe politicizeation and i agree with mining spence whoever elected president with influence the court for three days. >> darren on the independent line.. >> caller: good morning, everybody. good more than, mr. zirin? >> guest: good morning. >> caller: always say i'm a -- probably 45 days or so because i love the forum issue love being age to express my views and hear regular views from people around the country. unfiltered. appreciate the program. with that said i think that the view that the supreme court is becoming more partisan, i think it's a reflection on politicians. democrat and republican. especially in the last really since 2000. that contested election with bush 2 and gore. since then, partisanship has just ramped up with the house of representatives and the senate, and i think the justices have been relatively the same. they've been forever. but because of the partisanship, because of the arguing and unconstructive dialogue between the two parties, over the last 15, 20 years, it shows with the supreme court -- >> okay, let's let jim zirin respond to that. do you think the politics have effected the court? >> guest: without question. will rogers or summon elves said the supreme court follows the election returns but the fact of the matter is, we are seeing now a deeply polarized nation.a people are polarized on a number of is. the media is polarized.co the congress is certainly polarizeside not a great surprise that the supreme court is polarized.ol and it's not that right -- budget bader beginnings ginsburg things how would bill clinton think shy vote on this issue but she was appointed as someone who shared the ideology and expresses it through her opinions and you can say the same thing of scalia who was appointed in 1986, confirmed by a unanimous senate and was perhaps the most partisan of the justices, and of the leader of the conservative wing. his death was a dagger to the heart of the conservative wing of the court. >> let's look at another excerpt from your book: modern president presidented have favored their appointments at part of the particular president president perceived need to accomplish, quote, balance.. the result is that the court has become more, rather than less, polarized, more rather than less deeply divided and more rain than his conservative.o complain how the desire to seek balance has made the court more partisan. >> guest: the appointments in recent year have before flared with what i call, what others call identity politics and whatg is so interesting we have had 112 justices of the supreme court in our history. 89 have been white anglosaxon protestant males. let's say prior to scalia's death we had six catholics on the court, three jews, three women, one african-american, and the appointments really reflect the tradition of ethnically flavored and gender flavored identity politics, and for a time in the court's history we had -- not many people know this -- we had a catholic seat. we know this, we had jewish seat, and we found -- find that as of the time of scalia died,f there's not a single white sing anglosaxon protestant or evangelical on the court even though males gave us brought v. board of occasion and gave usrow roe v. wade, with he exception of brennan who was a catholic and still voted with the majority. >> up next george on the republican line good morning. >> caller: hey. i want to give my -- i for the past elections been voting democrat, and my heart is republican. because of the bipartisanship ih the supreme court, is based on transformation. so america has lost its faith in itself and everything changes based on a contracts between the individual races or individual moneys and stuff. we're a true partisanship is based on transforming an america into what it's supposed to be. and somehow we have lost that. we don't see it in our supreme court because they making private deals between everybody, and i think if we want to be bipartisan bipartisanship, or be -- our course to be bipartisanship, as america we have to gain -- give faith back into what america do or faith back into the america to transform itself or transform the things we need or people need to be able to survive this life. like healthcare. >> okay. let's let jim zirin respond. >> guest: i don't know quite what the question was but i do agree that we have to make an effort in all our institutions and among our people to be more bipartisan to be more moderate and reach some consensus as at the to way forward. think otherwise it's hurting us around the world. talk about iran and how difficult it is to deal with. because there are two iran's, the moderated and the hards liners and iran must look at usi some say how difficult it is to deal if america because we have in the moderates with whom we concluded a nuclear treat and the harders in congress and some presidential candidate whose want to tear up the treaty. pre merritt garland and the candidates' potential nominees, all federal appellate court judges, would fit in the ideological spectrum compared with the current justices. it shows the current justices ideologically from clarence thomas, the most conservative, all the way down to ruth bader ginsburg ansonia sotomayor, the most liberal. most of the nominees put forth by donald trump appear toward the more conservative to more sent rift areas of the court. by contrast hillary clinton's potential picks are all steam to be at or more on the liberal and than elena kagan stephen breyer. do you think that does or should make a difference to voters where it seems donald trump's picks have a broader, ideological split whereas those considered by clinton seem to be largely probably liberal? guest: frankly, i was very much surprised that in the debates neither lester holt nor any of the candidates brought up the supreme court. i assume it'll be discussed in the second debate and the third debate to come if they take place. trump's list of 21 candidates, all conservatives. interestingly enough, ignored judge kavanagh, judge brad kavanagh from the d.c. circuit, because, and there is only one explanation for that, because he is a highly qualified and competent conservative judge, and i think the reason he wasn't mentioned is that the district of columbia is undoubtedly going to go democratic from every poll that has come out. while the judges that he did pick, as possible nominees to the supreme court, come from the swing states that he thinks he needs to get elected. further contributing to the politicization of the judiciary. so we have judges from ohio, judges from utah, we have judges from florida all on his select list from which he says he might appoint the next justice. hillary clinton has been a little bit cagey, because she hasn't said she would support merritt garland in the event she is elected and in the event he is not confirmed in the lake dumb session, and so whether she would go to someone more liberal than garland, whether if there are three more vacancies, occasioned by the long service of ruth bader insburg and stephen briar -- breyer and anthony kennedy, whether she would fill with people of a liberal stripe or look for people of competence and experience irrespective of what she thinks her political ideology would be. host: you were talking about geography a little bit. five of the current eight justices hail from either new york state or new jersey as did the late justice scalia. do you think geographic diversity is important and might that help the partisanship by bringing in different views? guest: well, i think it's desirable, because all of them come from either the east coast or the west coast of the united states, with the exception of chief justice roberts, who was born in indiana but spent his professional life really in washington. host: born in buffalo, new york but grew up in indiana. guest: grew up in indiana. but the -- when scalia was around, four of the five buroughs of manhattan were represented in, of new york city, four of five buroughs of new york city were represented on the court. so, yes. i think geographical diversity is desirable. i think all kinds of diversity is desirable. host: okay. guest: and i think we have to consider that and not try to have -- continue the kind of identity politics we've seen in the past. host: up next on our independent line we have john calling in from lakeland, florida. you're on with james zirin. caller: yes, good morning. guest: good morning, john. caller: this is what i think should be done. there should be constitutional scholars that come up with a test about the constitution. you take a judge from every state. put them in a room. they take the test. they pass it. you got eight supreme court judges for eight years. you do it again after eight years. instead of being political. because a good example of political is affordable health care act, which is unconstitutional, if that's legal, then why isn't the supreme court saying or the government saying everybody has to have a driver's license even though you don't drive? you know, i think it would be better and should be based on the constitution not on passing laws because of favoritism. host: okay, john. guest: the problem is it is based on the constitution because the constitution says that the president apoipts -- appoints the justices. it does not say what criteria the president should use. it does not even require that a justice of the supreme court be lawyer, let alone a judge of an inferior court. some of our greatest appointees like louis powell have been appointed directly from the bar. they weren't judges. so the president can use any criteria he or she wants to use. and you and i might agree on what the criteria should be but that's not what the constitution says. host: up next we have charles calling in from richmond, virginia on our republican line. good morning, charles. caller: good morning. i'm so glad to get a chance to talk to mr. zirin, because this is a subject that has interested me for the last few years. i have a question at the end i will ask after i make my statement. the forefathers came here and they came from england. and these guys of course came in with bibles and the koran. the system was i don't even want to talk about hillary clinton and donald trump because if our country lasts it's going to change and change and change. but when they came here, they set up this constitution. they put the bill of rights in front of it. people get the bill of rights mixed up with the constitution. host: charles, what is your question? caller: my question is, if you look at the amendments to the constitution, and you think about they left religious oppression, when they brought the koran and the bible, was their intention to set up a religious society based on shaharya law? thank you. guest: i don't think they considered whether society would be based on shaharya law. i think society was to be based on the constitution the the >> guest: i think the society was to be based on the constitution and the bill of rights is part of the constitution. the amendments to the constitution become part of the constitution. and they start with the first amendment which guarantees the free exercise of religion so that muslims are entitled to exercise their religion in the same way anybody else is entitled to exercise their religion but also that the state, the government, cannot prefer one religion to another and that is the establishment cause which has been interpreted to establish a division between church and state. not like england where they are the church of england. >> a lot has been said about judicial activism on the supreme court and you say it has become fashionable to think of quote liberals on the court as activists. the justices on both sides of debate are in consistent in approach and result. can you explain what you mean? >> you take the controversy over the right to bear arms, the second amendment, gun rights. the scalia approach and the c conservative approach is to look at the text and take it for word. the second amendment has an introduction to the guarantee of the right to bear arms which says you have the right to bear arms within the context of a state accomplimilitia. the conservatives ignored that cause and said it is a personal right to bear arms so you can have a gun in your home. that is an example of the constructionists being activists. there are examples of the activist, the liberal wing, being constructionists as they were for example in the citizens united case where they saw no first amendment free speech barrier to the congress regulating campaign contribution by corporations in both amount and with other structures. >> host: up next, mary is calling in from west haven, connecticut on the democratic line. you are on with james zirin. >> guest: hi, mary. >> caller: my concern, and i hope you will speak to both of these decisions, have to do with our free elections in this country. i think citizens united opened up a vast amount of money and we don't know where it is coming from yet it is influencing people's vote in our country. the other decision was the shelby decision which sort of dismantled the election laws of 1965 and i wondered if you would speak to those. >> guest: i think they are both examples of conservatives being activists and liberals being strict constructionists. if you take the shelby county case where they dismantled the voting rights act they road rough shot over findings pain stalkingly made by congress that there were bad actor states denying mainly african-americans their suffrage in certain states and that the justice department was scrutinizing those states to make sure there was no discrimination. the liberals said they would adhere to what congress found and the conservatives said they would make their own findings and overturn what congress decided. citizens united quite similarly the conservatives felt the contribution of money is a form of speech. that requires something of a stretch because i don't think the founding fathers ever would have thought a political contribution as being a form of speech and since it was a form of speech it was protected and therefore unconstitutional for congress to try to regulate campaign contribution. i think the results in both cases are undesirable and both 5-4 decisions and decided along partisan line. >> host: do you think the increase in 5-4 decisions or the increase in focus on the 5-4 decisions since court cases come out to close to if not unanimous. do thunk that has driven the partisanship you see on the court? >> i think chief justice roberts has been marvelous and quite correct to point out 5-4 and 6-3 decisions are undesirable because of the impact on public confidence. and he said he would like to see narrower decisions that everyone could buy into. >> host: up next on the republican line is bill calling in from pittsburgh. good morning, bill. >> caller: good morning. how are you? >> guest: how are you, bill? >> caller: doing fairly well and listening to c-span and the program i am a little more upset than i usually am. i am really impressed we are dealing with your view about the supreme court which is partisan. i am calling to object to the divisions within the court as quote liberal and conservative unquote. you just touched on that a bit. the question has always been at what stages, at what points the supreme court should speak and where it should exercise restraints and allow the political system to continue the quote liberal approach has been to expand the equal protection clause, the commerce clause, and several others to the point where there is nothing that the supreme court can't deal with. i find that is the basis of the argument on the court. what has become scandalously politicized is the choice of the supreme court justice. >> host: let's give james zirin are chance to respond. >> guest: liberal and conservative are used for convenience and they are poplar and used by scholars of the supreme court and the discussions i think generally speaking liberals are justice appointed by democratic presidents and conservative by republican presidents. there are surprises because there have been justice in the past, mainly appointed by republican presidents, who have taken a moderate or liberalples and sided with the liberal wing of the court -- liberal position. earl warrin and brenenhe said were mistakes because they we. we had people like potter stuart and lewis powell who took moderate and suitors surprised george hw bush. these are not hard and fast distinctions. it is interesting someone gets on the court and change their ideology. the most notable example is hugo black who was a member of the kkk and said he did it because he was the only one who could get elected became one of the most liberal justices on the court and appointed by roosevelt because he wanted to reward the dixiecrats for their support in the 1936 election. >> host: we are talking with james zirin and the author of "supremely partisan." you can see him on cuny television. and up next, we have david calling from mount sterling, kentucky on our democratic line. good morning, david. >> caller: good morning to mr. james there. appreciate you being on the show. the comment i would like to make. i am a dedicated christian democrat, i am a hillary supporter a hundred percent. what i am calling about, a lot of my family is a republican and they don't remember there back in 1935 and 1965 when the democrats got social security and medicare in. the question i want him to comment on is you go to church and to the preacher to get up and say well, they took god out of the schools and all that. i know a lady down south filled a court decision that went to the supreme court and i do agree the supreme court held has the say so over other courts. i agree with the supreme court when the lady filled the suit against taking prayer out of schools, the gay rights and all. but it says we are all created equal and that is what the bible says. >> host: let's give james zirin a chance to respond to the issue of religion in schools. >> guest: we don't necessarily have to agree with the supreme court decisions. they are the last word on the constitution as justice jackson said we are not final because we are infallible we are final because we are infallible. this belief by many that the supreme court is anti-christian or wants to take god out of the schools or they don't like it if there is a compulsery pledge of allegiance. i don't always agree with the court's religion decisions. there is one called counter grief that are disagree with where christian prayers were said at public meetings and they divided sharply on that one. i respect their decisions nevertheless. they respect precedent and analyze it and judges make the law but make it differently than the way congress does. >> host: up next, joe on the republican line from done doll, maryland. good morning, joe. >> caller: good morning, i would like to say i think the constitution was written to be upheld the way it is written. i have a very big problem with roe v wade in the way abortion is now a means of birth control. 10-12 pregnancies over a lifetime that are terminated? i don't get it. >> guest: i agree the constitution was made to be interpreted as it is written and i think one of the great c contributi contributions of the late justice scalia is he reminded his colleagues they must be lawyers and start with the text. but often, because the constitution is written in majestic generalities the text doesn't give you the answer. where the constitution talks about due process of law or equal protection of the law those words as lofty as they might be don't really provide the answers. so you have to look from there to what the original understanding was and i agree. i think you have look beyond that. we have to trust the judges to analyze how the values that are expressed in the constitution are to be translated into tempora temporary technological society. >> host: richard is calling in from germantown, maryland on the democratic line. richard, you are on with james. >> reporter: i was pleasantly surprised when i turned on the tv and saw the title of your book. i am really shocked at how little criticism the court gets for outrageous things. i will give you two examples and love to hear your comment. justice thomas' wife was paid hundreds of thousands of dollars to run around the country talking against obamacare. then sits on the decision and goes the way his wife wants to. an example of a judge's vote being bought and paid for. secondly, bloody bush v gore. if it were not for them there would have been no iraq war. every penny spent in iraq, every drop of blood that americans, our allies and on the iraqis is on the heads of those incredibly corrupt justices that gave us that discussion. >> guest: i agree with you that bush v gore was a partisan decision. it was a 5-4 decision. but later on "the new york times" recounted the vote throughout the state of florida and bush would have won the state of florida if the court had allowed to counting to continue. so i don't think it would have changed the outcome as scalia argued later if they had decided the other way. i don't think the justice are supposed to pick the president and i think that was an unfortunate decision in the court. as to the ethics of justice thomas, who i have a great deal of respect for, the supreme court is not bound boy the canon of judicial effort and that is why ruth bader ginsberg didn't do anything wrong saying anything about trump. >> host: up next, dave from jacksonville florida on our independent line. jam you are on with james zirin. >> caller: hi, it is great to see somebody with your intelligence and non-bias and polarity on there to discuss a subject like this. in my studies, i believe that the fathers in the constitution meant to be interpreted to fit the times and not be a static document. along those lines, are we still having the madison-jefferson push and pull with state rights between the conservatives and the liberals? >> guest: i think that is right. remember, jefferson was not involved in the drafting of the constitution. he was over in france at the time. so it was mainly madison and hamilton although washington and john jay, the first chief justice, put the ore in the water. i think the problem they faced was they had to get a government in drafting a win constitution and realized there were many issues, mainly race, that would be have been left for another day if they were going to get a constitution at all. that is why we had to wait until 1868 for the equal protection clause and had to wait until 1954 for brown v board observation of education to see what fully protection of the law means. >> host: connie on the democratic line from new put yon the stocks for 30 days. is that a cruel and unusual punishment? certainly wasn't then. it is now. you would think can't imagine a judge who would uphold it except scalia said it was stupid but constitutional. but i think that while as much as scalia hated it, the constitution as a living document and to some degree justices have to breathe into it he experience of modern life and contemporary society which is what oliver wendell holmes said a judge sho >> guest: which is what a judge should do when interpreting the law. >> host: james zirin, author of "supremely partisan" can be found on his website jimzirin.com. thank you for joining us. >> c-span, "washington journal" life every day. coming up saturday morning, washington bureau chief of the crime report, ted guess, will discuss the increase of violent crime in the u.s. then, military times pentagon reporter andrew tillman is on to talk about why 600 additional troops are being sent to iraq and u.s. efforts against isis in iraq and syria. be sure to watch c-span's "washington journal" live at 7:00 eastern saturday morning. join the discussion. >> c-span's city tour along with comcast will explore the literary life and history of pueblo, colorado. >> i think it speaks to how this is a national place to settle. >> and then colorado state university professor talks about the deadly strike between minors and the colorado fuel and iron company which resulted in a public relation nightmare for john rockefeller junior. >> he walked out to the car and said you are not welcome and i cannot guarantee your safety. >> then matthew harris discusses this book the founding father and debate over the revolution. >> they didn't talk a lot about religion at the constitutional convention. and we visit the steel west museum and talk to the curator about the colorado fuel and iron company. >> this is the shift change whistle. many generations of pueblo children learned how to tell time by this whistle.

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