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 t