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tv   Newsmakers Carrie Severino  CSPAN  July 6, 2018 10:10pm-10:43pm EDT

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without them and without having faith in humanity, there is no hope. i askedlly helped me, one of the people, why did you myp me, and he told me, grandfather was trapped because of the holocaust. watch afterwards, sunday night at not a clock p.m. eastern on c-span2's book tv. newsmakers,s on severino of the judicial .risis network or i let me begin with roe versus wade. forhat is the litmus test republican senators and a majority of democrats, are any names red flags for senate
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republicans or democrats? have seen this issue come back. we don't know how any of them will vote. going back to the 1980's, justice o'connor, people were worried this was the vote that was going to overturn roe versus wade. justice kennedy. justice souter. so i think speculating on what anyone would do is very difficult. one that merrick is people seem to think is more out there than others, but when i have looked at it, even watching a recent video, she says this is not the way to look at a judge at all. judges are not going in there, here is a case i want to overturn, here is how i am doing it. they look at the law, look at the facts of the case, and text oft based on the the law and the text of the constitution. any of the top three we are looking at is going to do that,
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and things that senators murkowski and collins have said is their number one thing. yes, they are concerned about roe versus wade and the president but the biggest priority is having someone that will abide by the constitution, and that is what we have seen in all of these candidates. host: we heard from senator collins the roe versus wade will be a decisive factor for her? carrie: sure. that is totally understandable. but it is difficult to predict what any of them would do. it is not something a president can or should ask. hats people will ask it bring the confirmation hearing, it is not something that they could or should answer. in accordance with long tradition, justice ginsburg being the most storied participant, they can't answer questions about what they would do on a specific case. and that is important because going in, it may be wanting for -- it may -- for you i,one thing for you or
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but they are going to have literally thousands of pages of briefings on both sides, precedents that they may net i've considered, historical arguments they may not have been aware of, so this is the reason it is not proper for any of them to prejudge what they would do if they were in that position. you don't know what the facts of a specific case are. and finally, it is important to remember that after justice kennedy's retirement, the swing vote on the court is chief justice roberts. so whatever this next nominee would do, it is premature to think that would be the deciding vote very justice roberts is the wildcard and is not someone who wants to move in major steps. ands an incrementalist would rather avoid the issue altogether, from what we have seen of his jurisprudence. agree that over the past 45 years, if there is one legal issue that has tied together legal conservatives,
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it is that roe versus wade was wrongly decided. would it be a huge disappointment to you and other legal conservatives if it turns out the nominee did not support overturning roe versus wade? carrie: criticisms of the opinion itself is not limited to social conservatives. the bill like laurence tribe say there is basically no law in this opinion. so people who disagree with like a result where there is widespread abortion access in this country, or think that maybe elsewhere in the constitution you could find it. i think a lot of it goes back to the question of, how does one move going forward with a decision with that question. maybe the president has said iss is something he ha hoping for, but every president is entitled to hope for things from a judge. at the end of the day, the judge
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is not a fairy godmother that is going to grant your wish list. here is a top 10 list of things and here's what i want done with them. what you are looking for someone with a judicial philosophy that they're going to be applying to cases, and that may turn out very different from what you predict. so many huge issues that often times we cannot predict, the commerce clause challenge to obamacare for example. it was a gigantic supreme court issue. was it something that people thought about when these justices were being vetted for the supreme court? not really. and we can't predict what the next big question is going to be. that's why it's so important to focus on their philosophy. judges are not supposed to be there for a specific result, anyway. i think this is something americans across the board would like. they are there to interpret the
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law and that puts the ball back in the court of the legislators, and allows the american people who elect them to determine the policy direction of the country, not the courts. whatllowing up on that, did you think of the decision in the quill case this past term, unusual, in unusual san unusualstices -- divide of justices. does that tell us anything about where the chief justice is going in the future? the chief justice frequently was the harder-to-predict swing vote, and maybe some of that is from his own judicial philosophy. he said in his conversation -- and is confirmation hearings,
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that he is not an originalist. and it makes it difficult to predict because you don't know what type of analysis he is going to use and it specific case. so it's not surprising in this case that he doesn't fall along the traditional lines, because he is not going with an philosophy exclusively. it's hard to predict him. that's why it's a distraction to focus on one case, because we can't predict that case y and chief justice roberts takes an incrementalist approach and he doesn't want to make these big, overwhelming decisions if he can help it host: -- if he can help it. conservatives used to talk about judicial restraint, letting the people's elected representatives make those decisions rather than judges. are the candidates that the president might nominate people who would exercise judicial
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restraint? but the definition you are using is in the definition i would embrace of judicial restraint. our constitution does not say, and all things people's representatives make the law. .hey have limited authority it is only the authority the constitution gives them. that question came up in the obamacare case. they also have limits, like the bill of rights, limits on government power. so where there is something in the constitution, the courts do need to step in and then they often have to step in to validate laws because they other exceed the government's authority or they violate some of those limits on government. i think thehat, idea of judicial restraint is, it is not for a judge to bring his or her view of the politics into it. we should try to avoid coming up with judicial tests in general,
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because if the test isn't there in the law or the constitution, then you likely have a case where a judge is bringing in his or her own view, how do i think this major question should come out? it is not something required by the constitution, it is something that our system leaves to the voters and their elected representatives. >> wouldn't liberals say a lot of the same things? it's just that they look at different limits in the constitution. they would say lawmakers are limited to the extent that they violate the due process clause, the equal protection clause, and that is the philosophy behind, for example, the marriage decision, roe v. wade, other decisions i suspect you disagree with? there are different interpretations of where those constitutional boundaries are.
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that is where the rubber hits butroad in many cases, historically if you look back at the warren court there wasn't the idea of, we are bound by constitutional limits. it was almost like, how can we find an area in the constitution and weekend hang a hook, then we can have a very wide scope, moving things in a direction we think the constitution should go. do you try to look and understand those terms as they were understood by the people who ratified them, and that could be the framers, it could be, it depends on when an amendment was ratified when that relevant question is. but the idea that that is what we are looking at, not today will i read this. when i think due process i think something expensive and bro ad. wen we are reading laws, have to look at words as they
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were actually passed. we have to be careful not to redefine the terms. i think that would be a question that would ignite debate and i know justice scalia, just as riordan used to have it -- justice breyer used to have a debate, and that was one thing they would talk about, how broadly you can look at some of these things. because of the certain point of ooe gets to broad -- two broad, then it can be an empty vessel. we don't elect supreme court justices at all. they are there to interpret and bring into effect the laws that are passed by elected representatives. so they are people putting areent in -- so if there people putting content into the law has to come from the legislature, not the bench. wouldt think liberals like justice thomas to be importing his view of how policies should be done into the
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court, any more than conservatives might want justice ginsburg putting her views in their. in there. i think that's a recipe for taking politics out of the system. unfortunately, this is what justice scalia talked about, if judges are becoming more like legislatures and if the words are just placeholders for whatever content the justices want to import, then we have a political race going on here. and that's not what we really ought to have. extentyou speak to the to which the three finalists we tom to be having right now fill the kennedy seat, the extent to which they are on a sliding scale of original is him? is there anyone who is more of a strict constructionist then another, in your view? the great news from my
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perspective is that we have an embarrassment of riches here. you have judge amy barrett. had as many opportunities on the bench to show how she applies original is be abut she happens to leading scholar of original is a. so there isn't a lot of question of, what would she really do? on has written extensively this and understands on a deep vehicle -- a deep theoretical level of what is going on with original is a. but the other judges, when you are deciding a case you are bound by precedent. and it's not always something the judge might agree with, or may think this isn't really a test or a rule that was grounded in original understanding. judge kavanagh does this, going back to first principles and discussing, here is the original understanding. but in his current position he
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isn't able to affect that if there is a contrary supreme court precedent. just remembering to get that out here and wedent is are going to apply the precedent that we have. for me it would be a difficult decision. i'm glad i don't have to make the choice between these three but it's a good problem to have. a razor thin republican majority, 51-40 nine, and if senator john mccain is unable to vote, do you think he should resign? that is senator mccain's call. that should be his call to make but i do think there is a big if, on if the democrats are united. as we saw with justice gorsuch, three democrats voted lester to confirm justice gorsuch. when you have a nominee that is so clearly well-qualified, likable, evenhanded, has a history listening to both sides
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of the argument, certainly in , peopleisan environment who he worked with closely recognize that. each of these potential nominees really has that and i think it would be very hard for those thecrats, particularly three who voted for gorsuch but many others who are up for reelection in states that went for trump, to vote against a nominee like that when there are and to viewoices, an extreme party line might not be popular. it might lay well in california, massachusetts, new york, that i'm not sure how that plays in missouri, indiana, florida, all these states, i think it will be much more difficult question. and it's not like last chair where they can think, my constituents are going to forget what happened between now and the election area -- now and the election.
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it's a time for choosing and they have to make that choice. >> is this different because the seat is different, replacing justice scalia versus replacing justice kennedy? kennedy was a swing vote in more than 90% of the cases. carrie: he was a swing vote that was still more conservative. term, he voted almost 100% of the time with conservative members of the court. and of the justices on the supreme court, justice gorsuch was the one with whom he agreed the most, and vice versa. wasyone thought this someone who would be decidedly to the right of kennedy but it didn't turn out to be as much the case. i think people overestimate the distinctions. major issues and any subsequent justice is going to differ, and gorsuch has differed from scalia and certain votes he has taken. but the supreme court, 40% of
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the cases are unanimous. and of the remainder, i predict the next justice would be someone to vote similarly as to how justice kennedy voted. justice,here is a new it's a new court, but it think the shift has been dramatically overstated. ask about judge kavanagh. during the fight over obamacare, he wrote an opinion that said we should throw out this challenge to obamacare on narrow grounds. is that opinion a concern for conservatives? carrie: i don't think it should be. have looked people at that and thought, is this what we saw with chief justice roberts? to a lot of people, their conclusion was that he looked at the potential of making a decision he knew was legally correct but had major implications he did not want, overturning obamacare, and he blinked any found a sneaky way out with a tax penalty distinction there.
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with kavanagh's opinion, it's very different. he did clearly right about the problems underlying the law and the major issues. his question had to do with the anti-injunction act, an argument the supreme court, 9-0 they said the anti-injunction act did not apply there. but that is a question he has faced elsewhere in his time on the d.c. circuit judge and it fits in with his understanding of the anti-injunction act in general. when you look at his home oford, he is not the kind person who is looking at a case and trying to judge the important decisions. narrative, while some people thought it was superficially similar to roberts, i don't think that is what is going on. he recently said the consumer financial protection board was unconstitutional.
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this is a similar thing. this whole agency is unconstitutional, it is not constitutionally constituen ated. >> assuming monday evening president trump doesn't come out of the white house with someone that is not on the list of 25, assuming there is not a reality television program surprise coming at us monday night, what are you prepared to do in terms of ad spending? have you made reservations? are you ready to back whichever the nominee is, assuming it is out-of-left-feel choice that we are not familiar with? carrie: i'm confident he's going to choose someone from the list, which gives me the confidence to say yes, we will be able to
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fully support the nominees. it's an amazing group of people under consideration. when justice gorsuch was were prepared with websites and dads on the various candidates and if we are in the it'sposition now, again, an embarrassment of riches. whoever it is, we are ready to defend his or her record. there will be attacks. we have seen those previewed already and there is going to be character assassinations and distortions of the record, and even i think outright lies and deception. that's why i am happy to be where i am because i know that person is going to need defending and we will be happy to stand up for them. >> and is your focus swing states where there are democrats, or is it more on alaska and maine? how do you focus your efforts? carrie: our focus would be those swing states. democratic votes last time and i would like to expand that margin, especially
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given the choice clearly in front of some of these senators up for reelection, when they are going to be accountable to voters in their states in states that supported trump. this is a key issue driving voters to the polls. there is variety about whether people supported his views on immigration or traitor whatever, but for many voters this is a number one issue for them going to the polls and this is a winning issue for president from -- for president trump. see ak we are going to lot of democrats who feel they have to vote for someone who is an excellent nominee. >> how much are you prepared to spend on behalf of the nominee, and will you disclosure donors to the public? another $10 million during the course of the campaign, and we will certainly
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do that and more if we see the need. i certainly see this heating up. we are a c4 so we don't have to donors, andlose our we have an obligation to them and a world of red hands and maxine waters and all the kinds of attacks we have seen on conservatives and members of the administration. i have a duty to my donors to and them confidentiality, we have seen the same with the demand justice group on the left. same position. they don't disclose their donors, it's a common c4 position. >> when you talk about attacks, doesn't the president bear some responsibility? he has been very critical going after senator elizabeth warren about the issue of her jeans and heredity. does he bear responsibility? carrie: i don't think the president has said elizabeth warren should not be able to sit down with her family and the in a restaurant. personal harassment deserves no
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place in our political system. we should debate each other on the issues. we can certainly dress political candidates and we are certainly talking about her own honesty and that is a reasonable campaign topic very but it is the civility of being able to go home and have dinner with your family without having to face harassment. about attacks on reporters and fake news and the rest? don't think he's saying reporters should be hounded out of society. those are some attacks we have seen from the left that's inappropriate. host: what about his rallies, the rallies when people are shouting things about various news networks and so-called fake news. he clearly is encouraging that, right? carrie: the president's view of the news media is understandable. there is a lot of bias there. i have children at home. it feeds into each other, if one
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kid hits another they start escalating. i do think it is a different situation that we see when you were encouraging personal attacks on someone. another one of those points where, people agree or disagree with the president's approach about how we talk about liberal bias in the media. it is something many people are concerned about. but going back to the supreme that is not a controversial thing. it is something that unites people. who consider themselves never-trump have to admit, justice gorsuch, what an amazing pic, and i think they will be saying the same thing now. you can be personally opposed to the president on all sorts of levels but acknowledge that in this case he has done a great job for america. mentioned the demand
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justice group on the liberal side of the fence. what you think they are doing in terms of organizing, and if progressive interests were later to this game than your side was. inause i don't feel like past years there was quite as much as on the liberal side over the supreme court as there was and ifconservative side, you expect that to be different this time. carrie: our organization was founded to defend nominees because we saw what was happening from judge bork and and justices -- thomas on. that took people by surprise back in the 1980's because they were much more civil campaigns, let's ask the questions and they more or less get unanimously confirmed. so the attacks took people by surprise. i think it took the right
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several cycles to realize what was going on. the left was very effective in doing it first within the senate. robert bork predates our work but our organization was maybe one of the first ones explicitly out there defending them and has maintained that as our focus. demand extent, maybe totice is playing catch up replicate the efforts we have done. we will see how they do. it is going to be an exciting nomination process. host: should diversity, either a female or minority, should that be a factor in his decision? carrie: the factor he should look at is there judicial philosophy and the way they approach the law. that doesn't mean you don't have diversity. we have a wide range of different backgrounds, we have amy barrett, a mother of 7, 2 children adopted from haiti, one
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with special needs, she lives diversity and her on life. we have a judge on the sixth circuit, of south asian descent, you have people of a wide range of backgrounds. ett, who grew up in a trailer park. there is a huge range of people the president is looking at, but they won't be chosen to fill a specific quota. they can stand on their own with their own resumes and i think that is something we should all be celebrating. rrie severino, thank you for joining us. carrie: great to be here. let me begin with you as someone who covers the supreme court. is abortion the driving issue moving ahead? >> it will be, certainly if amy
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becauseis the nominee, she has been so outspoken in her personal views on abortion. the onebook could be that overturns roe versus wade, or scales it back significantly. borkentioned the robert nomination. had robert bork been confirmed that the supreme court, roe versus wade would have been overturned, or at least that is what he said. liberals remember that. they know how important this is. they may not have the power to stop it, but it will be front and center. the nomination of amy barrett make it more difficult for democrats because of her life story? >> it might come in a sense. her life story helps. the fact that she is a woman probably helps. she is also younger and has less experience and can be gone after in that way. and something's she has said is an academic make very clear that opposed tolly
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abortion and views roe versus wade is wrongly decided. judge capnagh, they may feel the same way but there is not as much pop record -- not as much public record on the issue. the three i would keep the closest ion are the ones who voted for justice gorsuch. joe manchin, heidi heitkamp and joe donnelly of indiana. donnelly may be the most interesting, particularly if barrett is the nominee because she is from indiana. you have an additional wrinkle there with a home-state selection. the other thing we need to look at, and this is on the opposite side, is there may be complications with kavanagh if
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he is the nominee, from his work in the bush white house that could raise the ire of civil libertarians. there may be a separate issue with him, and these are sort of balancing act questions. oni guess what will be going at bedminster, new jersey, some of them will be right to sort this out. terms of a timeline, what are we looking at in terms of hearings and a final vote? >> i would say we are looking as soon as hearings what is now the end of the iod, or earlyer december. the confirmation vote could be in late september or early october. the question would be whether this gets complicated by the government funding deadline at
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the end of september, and if they try to get ahead of that, or if they have to deal with spending bills first. host: what did you learn from carrie severino? answer abouther judge kavanagh was interesting, that she is not concerned about him on obamacare the way she has been very critical of chief justice roberts for his vote to uphold obamacare. kavanagh might disappoint conservatives in some respects, but not enough that she and probably others are willing to say it's a problem. r coverseg store washington for bloomberg news. thank you to both of you for being with us here on newsmakers. >> c-span, were history unfolds
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