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tv   Discussion on Supreme Court Mid- Term Preview  CSPAN  November 23, 2019 2:03am-3:07am EST

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>> welcome to today's counsel on formulations. good evening in a panel on the supreme court 2019 and 2020 we are going to look ahead and maybe back but probably ahead, i'm the legal affairs correspondent for national
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public radio. if you don't know who these people are in detail, look it up. [laughter] we have to five minutes and were big talkers. this is the former he acted for a long time. emily chief legal correspondent for cbs news and the solicitor general for the united states for four years. and before that, the deputy solicitor general so he was there a long time in both of these guys are often and they went a lot and they lose occasionally. but they're both very good advocates and i'm going to start by talking about news.
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and there's two cases up for the supreme court pending, waiting for justice to say what you want to do with them. one is from the d.c. circuit in the d.c. circuit ruled when congress asked for information in this case president trump's accounting firm related to whether or not they wanted to pass legislation that would require the disclosure of a president taxes. the d.c. circuit said yes you have the right to do that because it's in the course of legislation. and then there is the second case from new york, a state case where it's actually a city case that the district attorney for manhattan has issued a grand jury subpoena for the same kinds of materials but this time it's related to hush money payments to stormy daniels and one other person. i'm really not sure.
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and the second circuit upheld that subpoena first criminal investigation paid they're both sitting at the supreme court in the trump lawyers have asked the court to stop those subpoenas from being forced. so the question now, will they grant a stay preventing those things from going into effect, is a short effect now and will they grant -- meaning will they agree to hear the case or cases. so let me go straight down the line so i'm not referring anybody trade let's ask you to do what do you think they're going to do. >> it's great to be here with all of you and i wanted to apply for cfr but the long application scared the heck out of me. so i came to the back door today. i think nearly where the supreme
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court take and hear the case, they generally hear the case, this is one of the two cases if i had to predict my guess is that they would not take the case, though stay out there probably pretty happy with the careful reasoning by the two lower court opinions and is pretty extreme in their legal views and so i think it might be better for the court to stay altogether and let the process unfold. >> which means trump has to produce. >> i would say i kind of agree with neil in in the first term when justice kavanaugh was on the court, it was extremely quiet and had a lot of high profile controversial issues. whether that was by divine to
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take the court out of the conversation and lower the temperature in the justice they it's not. this term is very different print this term they are taking up almost every issue that you can think of. that we and tv, thus the ones we cover not the really important ones but the ones that make the headlines that will be about gun rights and about abortion, those kind of flashpoint social issues, daca, immigration issues. there on the plaintiff. i know that is a real concern for some of the justices that this term already including the chief justice that the court not be such a part of the conversation going into 2020, there's a concern by the justices including the chief justice, court hacking is very much on the mind of the democratic contenders. there is an effort to try to lessen this flashpoint in the court being a part of the conversation and resolve cases narrowly where they can, no big
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swing for the senses opinions and these hot button cases. so be that as it may, this to me would be one where they could take a pass on. i agree with neil on that. and let the second circuit decision stand. i'm inclined to agree with neil but my final point is predicting the supreme court right now is really folly. we cannot predict the court right now. it is too soon, too big of a court and we want to predict based on argument but we cannot do that anymore. >> all go back to neil and say it's a delight to be with you -- >> i forgot to say that to. [laughter] i am really happy to be here. i was in 1988 graduate of the foreign service so have long
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been a fan of the organization that took the long way around to get to one of your events but it's a delight to be here. i'll take a slightly different path not because i necessarily think it but it'll make it more interesting. i don't think there's a decent chance that the court will in fact take the d.c. circuit case, the one that is in a federal posture, i think that's the one that they might be most interested in taking and carrying the second case along with it or hold it whether they solve the federal case. i see that mostly because i think. [inaudible] we raise interesting issues to the extent of which there is protection to the president and capacity for what he does in the article. in the court with the circuit
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split. if you go back to the famous clint d jones case, the court took the case involving president clinton title vii suit that arose out of an incident in the hotel and they took the case up even though there was not a circuits but, i think a lot of people because the court took it got excited about the prospect that they might be creating immunity in the end they decided 9 - 0 against the president. so i think this is a context where the court almost at a different to the institution of the presidency might take this case but i think if they did it would be a mistake to view the fact that they took the case as a precursor to ultimately ruling in favor of president trump and
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i think in that respect the clint d jones case would be a predictor as well. >> one thing that might be a slight push back -- their overall chief justice concern seems to me the institution of the supreme court and the judiciary and unlike in 1990s where you had a fairly regular president who did go and attack the court every time a decision did not come out in his favor here you have a person who is very comfortable doing exactly that including to the chief justice. so i would think may be the best to be to stay out and not invite the backlash against the president. >> i can make a counterargument that sense in the normal course the court might grant in a case like this the best way to reassert normalcy if you will to take the case, that's what you would otherwise do and then rolled away that you might
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otherwise world and if you look at the court precedents, the presence argument is a tough one in the upper one would be the way to describe it. and if you did all that, in the end you might send a message that you want to send which is we will behave the way we will handle this issue at any other point in history. in order to do that, this all occurs in an election year which makes it more dicey. the supreme court by tradition like to avoid doing that. i'm not sure that tradition still exist but certainly the board they postpone in part because of an election coming up. the question is whether it's in
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this term, they have to expedite to do that, i'm not one of these people who follows every jot and tittle of how many days are left for the various briefs that it could get in this term. >> but they could do it easily this term. if they lay out a schedule that would have it with the rulings in june and right now the right in the middle of the election and term were the early and number of these social issues. >> if they're going to do it, i think the expedited ended be bizarre to sailors here and decide this thing in 2021. that i don't think predict precedents of that. the nixon case went on a very fast schedule with the first filing in the district court in
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april and the supreme court heard the case and two months later and decided 15 days after that. so start to finish under three months. >> so other than that legislator, let me start with you, you have two or more of the cases before the court, one is going to be argued right after thanksgiving, the monday after thanksgiving but there is also the very unsexy but incredibly important involving the consumer financial protection work, i hope i got that right, which is the board that was created under president obama enacted by congress, but unlike other agencies has only one head and although injustice capital wrote
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very clearly that he thought that was unconstitutional. at least then. so paul is in a very unusual position. because the triple ministration has abandoned defending the structure of the board, there is nobody to defendant. and so, the supreme court appoints somebody to defendant interpol clementinter paulcleme. i don't believe you ever appear before the supreme court without a client? >> no, i'd be happy to. in a sense i feel very empowered because this happens from time
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to time usually and lower profile cases in the circumstance where the government decides they cannot defend the judge and the court will appoint a lawyer to defend the judge below. that's essentially what happened here but a much higher profile case and often they fill the point along clerk to defend the judgment. >> yeah, i really actually thought my moment had passed and appointed for something like this. but it is empowering because i literally have no clients, i was thinking to have to open up a new client matter and run a conflict check on the client, the answer is no. i do not have a client. i am in a court appointed -- it's like -- i told this to nina, i was thinking about the process of putting my brief together and in every other case i've had i have to build in a
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week to let the client review the brief engine occurred, i finish this brief up 30 seconds before i file it. so is very empowering, all kidding aside, let me they why this is an important case. it's such an important case because the specific question in the case is whether or not the removal provision for the head of the cfpb which of floor cause removal provision is constitutional. and that is one of these things, the issue in this case is like the thread on the sweater, if you start tugging and tug hard enough, potentially the whole sweater comes undone in the sweater here is the entirety of the independent agency, the ftc, the fcc and so on, the whole alphabet soup of agencies that all have these four cause
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protections in its alluded to also have multimember bodies and so it's all six members of the ftc that have the protection and the like. but there are lot of institutions in this town that are very familiar of the operation of government the have the protections and the ones i've talked about, it's a great place if i knew exactly where we were in the building and the federal reserve that has the reduction in the federal reserve is a great example of why congress imposes these restrictions because there is certain issues in the world that we deal with at the national level where it's nice to have a degree of insulation for
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discharging a particular duty or particular responsibility where it's not going to change whoever is the president. for a fairly long time, i think we thought a monetary policy as being something that should not change in a way with each of ministration in a way that is more consistent of having every member served at the will of the president. so the court obviously can decide this case in a way that says this particular provision is unconstitutional but nothing else is really called into question, that would not be that easy to decide in that way because of anything, the ultimate question is how much control does the president need to have over an agency, it seems to me a little bit weird to draw the distinction and saves okay to have six people that serve
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with floor cause protection rather than one because with the president were going to remove somebody it be easier to do with one person than to recompose the whole body of the federal reserve. if the constitutional value that somehow you cannot insulate these agencies too much from the executive branch from the president seems the distinction would cut the other way. i think it's a case worth watching, precisely because it's not about the agency, it's really about our government and whether you can have these agencies that are more insulated from the president because i think some of the conservative justices and we see this in kavanaugh's opinion to think the insulation is so problematic. >> you argued in one last year essentially that the court adopted your position in last year's in which you can talk
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about that for a minute and looking forward there is a huge issue with the author involved in but what were seen undeniably is a shift on the court luminaire that began in the late 40s early 50s and accelerated through the 60s and 70s print when the value of separation was in the constitution but that was the lone star that every bit was aiming for. if the lawyer talks and you talk separation of churches, you don't establish a religion or try to prevent anything that helps establishment of religion and on the other side now much more accentuated his free
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exercise of religion. >> i do think the court in our society went to a direction which were accommodating to religion. a case in 1970 called lemon versus kurtzman set up a wall between the rebuffs law and that led to a bunch of presidents in the lower courts over the last year end i thought were pretty indefensible. in the fourth circuit which is here ordered the tearing down of the peace cross which is in the county that erected in 1925 to commemorate the soldiers who had fallen in world war i and i thought that was ridiculous. we have a supreme court to hear the case and save the cross. i summon the two divisions that they agreed it should stay. you can have religious symbolism but they can also acquire other meetings and that meeting was to commemorate the fallen soldiers. i think the court is now movin
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moving -- instead of the five to four decisions in this area into something that is closer to 7 - 2. i think justices breyer and kagan about more accommodating view toward religion with respect with the case of the all that paul or jan take that specifically. >> very quickly, it's the latest in the long line of cases involving school vouchers and the broad rubric for these cases, this one involves more of a tax credit, i don't think that matters at the end of the day. and the question is, essentially when a state sets up a program to allow this, are they actually forced by the federal constitution to include religious schools in the program or can they limited by the terms of their own state constitution to just private non-secretary
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school districts and limit and exclude the religious private schools or does not constitute discrimination on the basis of religion? all also say, this case illustrates its. and how the court has moved overtime. because with the lemon cases, there were lower court cases that said you cannot have a voucher program at all because the indirect provision of state aid through the intervening decision of parents is still too much of a link between religion and the state separation. the supreme court in a case 15 years ago overruled that and said states, if they want to can include religious schools within their voucher program and not violate the federal establishment clause. now we have moved all the way to asking the question if they will have a voucher program at all, do they have to include the
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religious schools to avoid discrimination on the basis of religion on the free exercise clause. this goes to how this moves in a much more accommodation direction and at the same time the activity is moved from the establishment clause prohibit favoring religion to the free exercise clause essentially mandate you not discriminate against religion? >> as you discussed, we have had not only daca the other immigration cases, we have abortion, gun rights, now you've heard about the religion clause cases and we have lgbtq rights in the title vii case and what also leaving out. we have a lot of stuff here. why do you think the court has tried for so long to keep the cap on the bottle and now it's
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overflowing or what? >> i think that's true in some cases, as i said last term was a very quite term for the supreme court in the first term that justice kavanaugh -- if you look back, we have had blockbuster terms before where there were five or six incredibly controversial issues so that is unusual. i think what is interesting about this year of the supreme court and this court in particular that is still a court in transition. the supreme court -- obviously we have a new justice in a relatively new justice the president trump put on the supreme court. there is great hope on the partisan conservatives that justice kavanaugh will be more reliable conservative than justice kennedy. there is great hope and conservatives that justice
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gorsuch will be a solidly conservative voice like justice scalia was. and there's great fear on the part of liberals that that will happen. and great fear on the burrough s president trump might get another nomination which by the way justice ginsburg is back at work, she has not missed a beat, she's as active as ever during oral arguments and if you have anything that projects otherwise but to me it looks like then the other not her voice is strong, she seems completely -- her bodr three or four weeks of everyda everyday -- development public events in september and when i say 11 most of those were multiple event so she go
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somewhere and does this and this and this. like not locally. >> i interviewed her in little rock arkansas in the horizon center that was sold out with 15000 people in a waiting list of 16000 people. and you see this little person in the middle you could really hear and you could've heard a pin drop. it was in th the amazing phenomn but i cannot explain, it's true i've known her for a very long time but i cannot explain this except to say i think people and maybe young women in particular want to have a living hero and
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that's been so rare in the long time since justice o'connor was on the court that maybe it's as close as i come to the expiration, i don't know if anybody else has any other theories, speak up now off. >> let me finish before we go on, i'd nina has a more personal experience than this then anyone will be leaving the court and certainly guests enter justice ginsburg seems to be in good health by now. but it's a court that is still waiting to emerge a clear view, it's a must if you look at the court, i've talked -- to remember a thing called a polaroid picture which sometimes
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kids don't know about that, but first it's blurry and it takes a while for the picture to emerge of what the court is going to be like, what justice kavanaugh will be and what kind of justice justice courses will be, initially the first term or two can be misleading, and when he joined his first year he was voted with william. that did not change quite a bit, he became one of the most liberal justice on the supreme court. i don't think that'll happen with these two justices but i thickets mistake now when people try to predict what the supreme court will do. it is too soon. we may get more clues this term, my argument has changed with the departure of justice kennedy, the oral argument used to be a time when justices would ask questions of these people like these two guys so late to get justice kennedy's vote. you can really tell where the justices were going and what they thought based on the questions and the questions were important because are trying to sway justice kennedy. that has changed now. without justice kennedy, the
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whole composition in the field of oral argument, is different. >> and we get to talk in the beginning. >> they understood the chief justice and the other members understood they were interrupting so much the council cannot have a moment to make a comprehensive argument. so now they have two minutes at the beginning of a 30 minute argument in which the council is allowed to speak on interrupted. >> there been a couple of interruptions because they forgot but in two minutes is actually a lot longer than you think. >> definitely when you're used to covering or arguing in front of the court would literally i don't know how many have you been but as you know when you get up there to argue they can say may have please the court and within a nanosecond there's one counselor, justice o'connor used to be the one right after
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the gate. >> how is that? >> the biggest change these to spend a lot of time thinking about what your first three sentences were because that's all you got out. now you really have to think about three paragraphs that you're going to get out and as nina said, two minutes does not sound like a lot but given what we were used to, this is an exponential expansion and i think one argument under the new regime and it was an argument that very much lent itself to this because i had a couple of different theories, i could when little and i could win big in the two minutes allowed me too lay out a menu and having laid out the menu, the rest of the argument i could direct the questions back to the original menu which is more effective then and if i gotten erected and
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classically a supreme court argument starts with a lawyer coming up insane at the beginning of his or her argument, i have three points and happily getting through the first and you'll never discover what the other points were. this allows you to lay out the thesis of your case. i think it is improving. >> to give you data, half an hour, i average -- somebody did the number, 60.8 questions in the 30 minute argument. so every 30 seconds basically is getting a question. i do think the new rules give us a little more time, i have not argued in front of the new rules i will and if you q few weeks. and with kennedy gone, the argument has changed. in particular the chief justice loves playing double advocate. and observers to the court will watch what he is saying and think he's leaning this way or that way.
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>> kavanaugh is the same way. >> no these are people who try to ask the hardest questions on the other side of advocate. and i never really from the questions figure out where they're going. in the argument when kennedy was gone it was not just the justices trying to pitch their questions together, they were also the advocate. they were so focused on the one spot on the court and now i feel it's a pure intellectual exercise in which a just try to make the best argument for your side and not trained to taylor toward the one-vote. >> i'm supposed to turn this over to the members for their questions and you're all invited to join this conversation so a reminder, this is on the record, wait for the microphone to come around and then you can stand and state your name and your affiliation and let it rip. so who has a question?
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i said we only have 25 minutes, a question there. >> larry meyer. it seems to me that the cases are more predictable then you have suggested. and where as the chief justice said, there's just justices not for public and democratic justices that does not seem the way it is. it seems to me this is very challenging because of the composition of the court changing and the president has not become the important, a lot of these things are going to be overturned and the whole nature of the supreme court will change. >> sometimes i think that is right. some things are predictable or more predictable than others but i think the hot button focused
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is the more general working for the court in two years ago they were unanimous in 60% of the cases and four years ago 66% of cases, you have to go back to 1942 find a similar rate. sometimes it happens and in deeds, i had citizens united to which is called fcc versus at&t and the question in the case the year after the controversial citizens united decision was corporation have privacy rights? in the newspaper headlines said it's going to be a predictable decision. the law has an exception for personal privacy. so the lawyer for the company stood up and said there's an exception for personal privacy, corporations are a person, the first code on our statue and companies have privacy rights. the chief justice interrupted and said the word is personal, not person in your given the definition of a person in the lawyer said i don't think that makes a difference and they said what about craft, crafty,.
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[laughter] and the lawyer for the company did not have an answer to that in the chief justice writes an opinion for the court and aimlessly starting against the company saying they don't have privacy rights in the last line of the opinion by the chief justice said we trust at&t will not take it personally. [laughter] >> let me add one humorous consul to that. just to say, i don't think you are right which is to say somebody who spends all of their time or way too much of it thinking about the court and how they decide cases, i don't think the way you described it is quite right but i do think the justice cares more about this isis early seven or eight of them in the question suggest, i do think that they are slightly less predictable than the questions. but to give the premise of the question therefore do, i think
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they actually highlight that the court has a real challenge right now which is that they have nine justices, five appointed by president of one-party, for appointed by presidents of another party in both the presidents that appointed them and justices themselves have differences, fundamental differences of how they think you should go about interpreting the constitution that ends up dividing in the highest profile hot button issues along the lines of the president that appointed them. it is very easy for the public that used to processing everything else in political terms to say the five conservatives did x, the four liberals did why and i honestly believe that the justices are not processing the cases that way but they are processing the cases through their julep judicial philosophy that happened this moment in time to
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duck tail 100% with the political affiliation who appointed them in a hasn't been that way this starkly before indiana alluded to justice sooner, you could point to justice stevens to republican appointees who ended up voting much more like liberal justices if you can use that term and it showed that why they are doing that is not because justice stephen in a certain country club chicago kind of way is still republican. but even until judicial philosophy that was very different from what the current president, republican president is looking for. i think when you have a court that is divided along judicial philosophy line that are hundred% correlated with the partisan affiliation of who
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appointed him, your problem that you have to manage in the chief justice who has very little tools in terms of managing the court because he only has one vote, he has a challenge of the institution that i think legitimately is not decided all the cases that way but in an environment where 99.9% of the people are going to see it that way. >> the other thing i will say as a moderator, your question does not figure into is that i would argue, the democratic party at least up until the selection will find a who their standard bear is great it is pretty much the same party it was when people were appointed in the 70s and 80s but that is not true for the republican party.
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john ford who appointed justin stephen said not long before he died he said he wrote something that said if i had one act to rest to be most proud of and be the appointment of justice stevens. but his brand of republican barely exist anymore. i think that is reflective and what you see in the differences between the justices are more star. >> i think that we in my business feel that narrative because we shorthand the liberal justices, the conservative justices. so people who are casual observers and watching, not anyone in this room but what i stand television, then there saying, those of the republican justices in the democratic justice. i think the way that we cover the court sometimes kind of fuel
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slot and of course, it's more that there judicial conservative and judicial liberals which means their view of interpreting the constitution in different statues. i do think that the concern and i think the groups also fuel it. i think the interest groups on the left and on the right, at times their rhetoric is irresponsible. >> and wrong. >> it is contributing that sometimes in misleading views of the court which is very smart people engaged in a struggle how to interpret the constitution and statutes. but genuinely wanting to get the right answer that they believe
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is the right answer not saying i'm going to roll in this case or you get the next time, it's not like that, i've cover the court for 25 years and lost a lot of respect for a lot of institutions in this town, the supreme court is not one of th them. >> if you have a gun to see an argument of the court, do so. every time i'm up there or watching, it's only branch of government that still works and is really remarkable and almost crying to me that americans cannot see because is not televised. >> there is good news which is an easy solution for the court, they could grant more cases for me and neil and decide them unanimously showing politics doesn't matter at all and they can always agree on things. i think there is a solution. >> i think this is a concern for the court in the justices and while they will rule quite narrowly and very difficult to predict and when i saw it was certain they were going to roll that doctor must come to an end, i'm not gonna go out on a limb and predict that but knock
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yourself out, if they're too hard to predict right now, they are concerned about the public opinion polls that has the court public confidence in the court in the institution is dramatically higher like twice what congress is in three times -- >> and way more than journalist. >> so the public confidence in the court in an institution is still high but that is crucial that it stay high -- >> it has gone down a lot. >> they are really concerned about that because they don't have an army to enforce their decisions. >> we have other questions appear. >> i want to turn to the question about the words about expanding the supreme court the sum of the democratic candidates have been talking about.
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last time i remember it being tried in a very serious fashion in history in the 1930s, it got shot down pretty quickly. even though president roosevelt had a huge majority in both houses of the congress, what do you think is behind and hattie think the supreme court reacts or do they react to all for the talk about expansion of the court? >> they hate it. that is one thing. i for one think -- these are politicians. what do you expect. the fact is, as long as there was a clear center of the court, it could go either way and i think liberals thought they would trust in the court but for the first time they had no input at all in the selection or
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confirmation of either of the two justices now and there was a lot of hanky-panky of holding the skull you see open and i think all of that was great for mitch mcconnell and republicans and they maximize. but the bad side about it, people who are liberal or even sometimes moderates think that the system is a little rigged and that leads to what i would generally call ideas like court attacking. every justice as far as i know liberal and conservative has spoken out against. >> that's a shame that were in this position and is more than a little bit of hanky-panky. it's a republican senate that did not give a hearing when
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justice schooley was passing on and vibrate 13. and that was putting the court in a political picket and it's entirely predictable that you're going to have calls. how can you not when that is what they did and destroyed the process so i failed terribly that the court is in this position but i know without fault lies. >> i want take issue with that but abroad in the lens a little bit further. because what you see when you see dysfunctional confirmation hearings and you see political candidates talking about expanding the court in court packing and the like, to me that gets back to the idea that the court is deciding so many
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important issues, so many politically charged issues in congress by contrast is kicking a lot of the issues that the framers thought it would decide and wrestle with to either the courts or the executive branch in action. if you put all that together, i don't know how you can be surprised that in the very few instances in which the political process can influence these nine unelected people who are deciding everything from race, abortion and how to solve though pure crisis, of course in the political gets a little bit of opportunity to influence the institution either by delaying a vote on one nominee or by train to derail another nominee or say the constitution doesn't specify the membership of the supreme
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court, and had numerous it is, if the court is going to have that much power and decide all these issues, you have to expect that the political process is going to try to touch. >> over there. >> thank you all so much my name is kathleen i teach at the university of miami law school. there's a handful in the room that work on international trade not that intersects with your work but it might in the future of nondelegation doctrine. you may know there is a case of the federal circuit now to look at the delegation for the president to put on national security terrorists. we all started voting the nondelegation doctrine quickly and following gundy in the last term. it's hard to predict with this court, i'd welcome your expert views on where we might head if not this term but further down the line on the nondelegation doctrine.
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>> if he started learning about the nondelegation doctrine you figure quickly there's not that much to learn. somebody famously said that the nondelegation doctrine had one in 1931 and been downhill since. the supreme court struck down two statutes on nondelegation theories and it really has struggled with how you apply the doctrine. >> explain what it is for peopl- >> for the nondelegation doctrine for those of you who do not wake up thinking about that. [laughter] it's the idea that congress can delegate essentially too much legislative authority to the executive branch were impermissibly delegate too much legislative power to the executive branch if it gives the executive branch assignments without providing any meaningful constraining direction. part of the reason the doctrine
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has not done particularly well since 1931 there's a lot of federal agencies that are supposed to regulate the public airwaves in the public interest in the supreme court said that is good enough and in the public interest is good enough, what would not be in there's nothing in the constitution speaks this directly so even the justices who would like to have a more robust nondelegation doctrine, they tend to be the justices and there is not text to appoint to print i guess i would say, in gundy which is the case -- i will not bother seeing what the acronym is. it was closely divided but if you read between the lines, there is five justices on the court at least have some of these for the idea that congress is delegating too much to the executive branch. >> but i don't think you have
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five justices that have a view there's a clean line to apply. i think it's an area where they should try to make argument that there's too much delegation doctrine here or too much delegation, if i were advising one of my clients about this i would probably advise them to stay away from the nondelegation problem and tried to focus on something that is specific to the statute that is problematic that the courts say this congress cannot do but in all of it, this is an issue that will come back up to the court, maybe the trade contacts or in other contexts but it's not something that is easy predict that there's five justices that are going to resurrect the nondelegation doctrine at least in those terms. >> i would say one quick thing, i think the non-delegation doctrine, most everyone agrees with congress will declare war and then congress can give the
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authority to the members of cfr or something like that. that is a flawed and violation of the nondelegation principle. the trade cases are interesting because they come close to the hypothetical unlike those sworn in and other stuff around the court. i think those are the ones you want to watch and see but there may be a revival the doctrine. >> a question on there? >> my name is jeff, i am curious as to what your views are about the chief justice going over the senate in january and sometime early next year. and how they're feeling about the in the twitter universe are coming after him . . .
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i think this chief justice will use that as the model. impeachment is weird and the senate is weird and that the chief justice can make any sort of he can be overruled by one senator >> wasn't part of the reason is they talked about everything beforehand and rehnquist had the parliamentarian sitting on his shoulder basically and daschle and lot probably got along better than schumer and mcconnell but leaders of these parties do tend to when push comes to shove to understand that they have an object here and if the object is to complete the trial and
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reach a result in relatively quick order, it's a different objective then if one wants to drag it out and the other one doesn't but in the last impeachment that did not and up being a problem and i would greatly suspect that this chief justice does not want to be making rulings that would get overruled by a majority and you're going to see him looking very regal but not much else. he may be doing stuff behind-the-scenes, making sure he understands what everybody wants but i don't know if we're going to get to see it. >> nina, you alluded to him looking regal. to me the interesting question is strikes or no strikes. chief justice rehnquist out of nowhere and i think it came from gilbert andsullivan or something but showed up in word wearing stripes on his robes . i kind of think it would be neat if he did . >> no way.
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>> i think if ginsberg can have a dissenting power he should have a special impeachment robe that he wears only for impeachment. >> read? >> whatever. i would do stripes if i were him but something to stick out. >> it shows what we are talking about this term and the court being the center of attention in the election year, the court picking the mind of all the democratic candidates so it's i'm sure not where johnroberts would like to be in january or february . however, by tradition they start at 12 or 12:30 so he could do everything and the object will be to do it well and the question is whether he will be drafting it in opinion while he listens to some boring debate on the floor of thesenate . anybody else? yes.
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>> jeremy young, i'm a journalist with al jazeera. i have a question for nina, i was wondering if you could share a personal story about your interactions with the notorious rvg , maybe something that reveals a little bit about her sense of humor, her character. >> she is quite funny at least publicly. she really is a shy person and she is a quiet person. the secret of ruth bader ginsburg isthat she's a performer . it's how she got to be good at what she did as a lawyer and it's how she got her job on the supreme court, because she was not as she would tell you president clinton's first choice by any means. he tried cuomo, he tried george mitchell and there were other people and finally he gets to talk to her and he
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just falls for her speaker. but and she gives a good speech and sometimes she's very funny on the bench. but that is not the person i've known for more than 30 years. when we were both very young. but the only story i'll tell you which is really quite amusing about me really more than her is that when i started tocover the supreme court i didn't know anything . i'mnot a lawyer . i really knew nothing and maybe in the second year or first year, i don't remember, i opened this brief in a case called reed versus reed which was the first sex discrimination case before the four where they ruled against sex discrimination ultimately and it said that women are covered by the 14th amendment and i go all women
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are covered by the 14th amendment, it's post-civil war in the constitution about african-americans. and i looked to the front to see who wrote it and it was written by our success for at rutgers university and in those days we had little phone booths in the supreme court pressroom that were about the size of my chair here and i go in one of these booths and i call up and i get anhour-long lecture . and i probably knew a lot, and that's how i met ruth bader ginsburg and over the years how i've known her more and more overtime so it's not a funny story , but it's a fascinating person. >> she took in mind to educateyou for an hour .
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that's revealing. >> yes. >> andrew shapiro. this is a question for the book on impeachment coming out, there's been speculation online at one of the reasons why democrats don't need to subpoena mulvaney and others now is because once impeachment happens they can call them as witnesses during the actual impeachment trial and that chief justice would rule then whether they can bring in rather than go through supreme court process where he's deciding to go anyway just wait until it gets to the senate floor and get those witnesses then. i was wondering what you thought of that legal theory thatspouting out there now . >> i'm not going to predict how he's going to rule. i certainly think those witnesses can be called then and that's a faster route but
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really the reluctance to call these folks as a lot more to do with the fact that they feel the case is 100 percent rocksolid on facts as they are already . they don't need to garner more facts to go ahead and take the vote in the house so that's really what it is. >> but let me ask you a question, if in the impeachment proceeding that senate were to call let's say john bolton and the president were to object and go to court at the same time, could he do that? i know that we all have always thought that impeachment is at least, some people think it's the only remedy. some people think it's not the only remedy that it is at least the remedy. >> there's a case called nixon versus the united states and is not actually president nixon, there was a judge nixon who was impeached
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and how he had the same name is beyond me but anyway , no relation . but the supreme court they are said basically federal courts have no business in impeachment. so i suspect that's what would happen even if the president tried to do that. i think it would be a terrible organization but he's known for making terrible ones. >> we've reached the witching hour which is 1:30 and they tell me you are extremely prompt and that he if i even let this go over two minutes, i will be impeached. so thank you all for havingus . thanks to my panelists.
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the supreme court first heard oral arguments in this case in 2017 and subsequently returned the case back to the lower court for additional consideration. the justices have through june 2020 to issue a ruling. >> your argument next in case 17 1678, hernandez versus mesa. >> mister chief justice may it please the court. when this case was argued two years ago counsel for respondent and counsel for the united states were both asked whether petitioners would have a remedy if sergio hernandez had been standing on us soil when he was shot and killed. both said yes. the question before this court is therefore whether that infraction is nevertheless foreclosed because in this case sergio was standing a few feet tothe mexican side of the border at the time he was shot . for twre


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