Skip to main content

tv   Sen. Lindsey Graham Others Discuss Judicial Nominations  CSPAN  September 5, 2020 7:00pm-8:01pm EDT

7:00 pm
♪ the contenders, about the men who ran for the presidency and lost but changed political history. tonight, south dakota senator and u.s. ambassador to the u.n., george mcgovern. the contenders tonight at 8:00 p.m. eastern on c-span. >> senate judiciary committee chair lindsey graham joins the south carolina chapter of the federalist society for a forum on judicial nominations. after his remarks, legal experts discussed the role of the federal judiciary, the senate confirmation process, vetting of nominees, and tenure of federal judges. afternoon, all.
7:01 pm
behalf of the charleston, columbia and greenville, south carolina chapters of the society, i am delighted to welcome you to our event today. we are excited to be hosting senator graham and a moment. good afternoon and welcome. a couple of brief housekeeping announcements and we will get right down to what we are here for. first, we have a pride for cle credit in south carolina. if you would like credit for attending this event, i ask you submit a record of your attendance. use the q&a function and send a message that will be viewable only by me has your name and south carolina bar number. about halfway through, i will ask you to do it again to make sure you are still with us.
7:02 pm
and at the conclusion, i will ask you one last time. i also want to very briefly preview a couple of upcoming events. next week on thursday at 2:00, we will be having a virtual roundtable between three attorneys general. texas andlina, nebraska. it's going to be a fun event and i would love to see you there. the week after that, september 14, ilia schapiro will be with us live in columbia to preview the upcoming supreme court term and his forthcoming book, "supreme disorder." a couple weeks after that, we will host judge jeff sutton. and ed welland. they will discuss their book. nobody came today to hear me give announcements and i know
7:03 pm
you are excited to hear from senator graham. if we have ever had a speaker truly needs no introduction, it is he. let's jump right into it. let me lead into the first question with a bit of a windup. since its founding, the federalist society is been deeply concerned with the role of the federal judiciary. one of the founding principles is that in our constitutional system, it is emphatically the role of the judiciary to say not with the law is, but what it should be. one way we advance that principle is by selecting and elevating judges who share that. originally under your surpassed, the senate 200 confirmations a president
7:04 pm
trump's judicial nominee and for the first time and i believe more than 40 years, every vacant circuit court of appeals seat has been filled. what does this mean? what does this achievement mean for the future of the federal judiciary? sen. graham: number one, think you very much for having me and honoring me. i really appreciate what you do for the cause of good judging, giving us input about nominees. efforts to to prohibit people from being a member of your society and still be a judge, i will stop that with all of my might. that is ridiculous. you can be a member of the aba any in good standing. it's ok to be a conservative and a lawyer. the bottom line is what does it
7:05 pm
mean? it means that president trump has done more than anybody in my lifetime to reshape the federal judiciary to a center-right judiciary. by focusing on filling every vacancy. chuck grassley was the chairman for the first two years of president trump's turn. appeals, two supreme court nominees, and we have 70 district court vacancies and 49 nominations. we will probably do 30. we have done 120 on my watch. we have made it a priority. mitch mcconnell deserves a lot of credit. we are in the appointment is in us in the senate. i can tell you that for all of who campaign on our behalf and say that judges matter, trump heard you, mitch mcconnell heard you, and we have delivered. this is what i would urge you to think about -- your four more
7:06 pm
years of this, four more years of taking circuit court judges. four more years we can flip more district circuits. the bottom line is there will be at least a couple vacancies and we 2020 and 2024 will have a chance to fill those as president trump can get reelected and we hold the senate. think about that. think about how satisfied you must be as a federalist society member with president trump in -- trump and the republican senate. thank you for this acknowledgment. the bottom line for me is one of the big issues for the nation is what kind of judiciary you want to have and that will loom large on the ballot. there will be an effort by the democratic party to expand the number of judges on the supreme court. they are openly talking about
7:07 pm
that and numerous groups are 92 diluteexpand it to the center-right agenda we have nine two- expand it to dilute the center-right agenda we have created. i just think this has been one of the great accomplishments for president trump, myself and mitch mcconnell. a lot is at stake in 2020. host: you mentioned some of the statistics, the numbers of judges. in the eight years of president obama's administration, total of 55 federal appellate court seats were filled. that is over eight years. and less than four years, 53 seats have been filled by the current administration, so nearly on pace. what does that tell us about the priority, the amount of effort and emphasis that leader mcconnell and yourself and others have placed? sen. graham: it tells you everything you need to know.
7:08 pm
that in one term we have done as much as obama did in two terms. that mitch mcconnell and myself see picking judges is one of the most important functions of the united states senate. and the presidency of the united states. we had two conventions and almost nothing was said about protest and disorder in the streets. the republican convention focused heavily on law and order and supporting victims of crime. what you talk about determines what your priorities are. i think we have done a good job of proving through our actions that when we talk about making the judiciary interpret the law rather than making it from the bench, we have delivered and i hope people remember that. host: let me ask you as well about a particular moment in the past couple of years.
7:09 pm
on september 27, 2018, right in the middle of the contentious confirmation hearings for judge brett kavanaugh, now a justice. on that day, delivered remarks at a hearing of the senate judiciary committee that some observers have identified as crucial to his eventual confirmation, and that ilia schapiro has identified your greatest moment. talk with us a little bit about that moment and the emotion and passion that was present in the room. sen. graham: why did people listen to what i had to say? i voted for sotomayor and kagan. nobody would have cared if i got mad about brett kavanaugh, just one more person. but i had something that nobody
7:10 pm
else had. the ability to look the democrats in the eye and say what the hell are you doing? i would have never done this for sotomayor and kagan. you want to keep this seat open, you don't care how qualified he is. you want to paint the picture for 2020 and you were dumb enough to say that. what got me going is i have known brett kavanaugh for almost 20 years. i know him to be one of the most capable people any republican president would nominate to the supreme court. here is the one thing that united the party. cavanaugh -- brett kavanaugh was the private secretary of president george w. bush. he met his wife working for the bush administration. president bush was on the phone day in and day out, calling republican senators, vouching for him. so you had the bush group, the trump group, the mccain group and romney group. all of us believed that anybody on the republican side would have put brett kavanaugh on
7:11 pm
their short list. so what happened was we saw this as an attack on us, conservatism. we saw what they were doing to brett, crossing a line of wanting power too much. i saw it in terms of an offense against a friend and a betrayal of what i had tried to do. bork,clarence thomas, alito went through this -- every republican conservative is a racist, blah blah blah. why is it always our people? what i said that day i meant, that i looked everyone in the eye and said i never would have done this to your nominees.
7:12 pm
i would not have picked sotomayor or kagan but they were qualified. brett kavanaugh is as qualified as anyone ever nominated to the supreme court and was a good man and what we were doing to him is unconscionable. this is why that matters. if they had succeeded in driving him away and he had withdrawn , who would be next on our side ? conservative man or woman would want to throw their hat in the ring go through this? you have to remember the accusations were five, three of them anonymous and two of the three proved to be absolute manufactured. what happened to dr. ford was real somewhere sometime, but i'm confident that brett kavanaugh had nothing to do with it. you were talking about a party in high school that no one could validate the claim. we are talking about how may beers he had while in high
7:13 pm
without a a party date and location and it was just a complete low point in my career in the senate. i spoke up, as i am right now . the more i think about it, the more pissed i get. because a lot was at stake. if they had succeeded in doing this, they would have changed the people who would come forward to be judge because people will be driven away. anything they could do we would wind up doing. so i think the best thing that happened here is that he made it onto the court and i think they will be less likely to do this to the next nominee because it blew up in their face. and i think it affected senate races in that cycle, and i want to let you know that when i voted for sotomeyer and kagan, it did not make me less conservative. i followed the traditions and
7:14 pm
qualifications, not ideology, and now after kavanaugh, everything has changed and thank god he is on the bench. and to the extent i have motivated people on our side to stand up for him, i am glad. from my point of view the real hero here as much as anybody is susan collins, because she had the courage to evaluate brett kavanaugh as a judge and human being and found him to be highly qualified. host: let me follow up on that. you mentioned robert work, justice thomas, justices ginsburg, sotomayor and kagan. you said it seems like now all that has changed. so let me toss out a couple statistics and then get your reaction. justice ginsburg confirmed 1993 by a vote of 96-30 and spoiler
7:15 pm
alert, the margins are going to get narrower as we go. 2009, confirmed 68-31. 2017,, justice kavanaugh, 50-48. the trend there, it doesn't take a statistician to see the increasingly narrow margins. is the continuation of that trend inevitable or can it be reversed? is it like a door that only swings in one direction? sen. graham: pandora's box has been opened and read kavanaugh showed how far it would go. but harry reid did more to unleash these horses than anybody in recent memory. changing the rules to a majority vote in the circuit court of appeals. when they had power, they went
7:16 pm
away from the 60 vote requirement to 50 votes for circuit and district courts. the bottom line here is i think you're going to have more ideologically driven nominees because you don't need to reach across the aisle and pick up a vote like you used to. i don't see the rules changing anytime soon. we had to change the rules for gorsuch to stop his filibuster twice. and i would say as of gorsuch and brett kavanaugh, nobody can look you in the eye and say they are not equally qualified to sotomayor and kagan. so the point is that conservative nominees have been treated critically unfairly. it all crescendoed with brett kavanaugh. when harry reid change the rules, it change the entire nominating process. what i fear over time is that if we don't turn it down a notch , that good men and women will be more reluctant to be a judge.
7:17 pm
because of what you have to go through. think say this -- i brett kavanaugh having survived was a great thing because it shows that these tactics did not work. host: we want to be respectful of your time. can i give you one last question? if it is not an intrusion on your schedule. i know you have other things and we don't want to keep you from it. earlier in remarks, you mentioned more than 300 special interest groups and a few of their colleagues have voiced support for the idea of expanding the number of justices on the supreme court. this would not be the first time it was ever discussed. i think it was a century ago during the new deal, there was a , from myking plan recollection, about the switch in time that saved nine is the phrase. there has been a discussion once before at least, but it has
7:18 pm
never been done. it would be unprecedented. do you sense that there is any actual support? is there any likelihood? sen. graham: look at chuck schumer. he is probably going to get challenged by aoc in the primary. let's talk about some of the things the democrats and the house are openly talking about. making d.c. estate. -- a state. alexandria was ceded to virginia so people in the greater d.c. area could vote. there is a way to enfranchise people in the d.c. area without making it a state. they are talking about making puerto rico a state and doing away with the electoral college. south carolina, we will become far less relevant. but one of the most egregious things they are talking about is expanding the number of judges so they can dilute the center-right majority we have created over time.
7:19 pm
and from 2020-2024 there will be two, maybe three vacancies, but they are trying to reshape the way our founding fathers created america to their advantage. they're trying to do away with the electoral college, to reshape what a judge does and the number of people serving on the supreme court. they are trying to add states in a manner i think is overwhelmingly partisan. and if we lose the house and republicans lose the senate and biden wins, i think most of what i just described has a better than 50-50 chance of coming true because they will try to change the rules of the senate to do away with the legislative requirement and filibuster. schumer and all of leadership in the senate will be under
7:20 pm
enormous pressure from the left. so a lot is at stake. my opponent, we will talk about where he is at versus where i am at later on. but today is about the federalist society. -- i is about thanking me want to thank you for helping me make sure we have good information about judicial nominees and making you where to south carolinians how much judges matter in our lives and taking a stand for conservative judicial philosophy. which is absolutely a great thing to be doing, you should not be ashamed of it. any efforts to blackball your group will be met with fierce opposition by me and many others. so thanks. host: thank you. kept youe have already ca
7:21 pm
longer than i originally asked for. we appreciate your time and leadership in washington. thank you again for joining us today. sen. graham: thank you all. host: thanks to senator graham. we will turn to our panel. i introduce them in just a moment. by the magic of technology, there they are. popping back up, on muting their microphones. it is a distinguished panel. if you struggle with an inferiority complex, you do not want to host a panel like this theyse i will tell you have accomplished a thing or two. with mark champa, from -- graduated from brigham young , valedictorian of his
7:22 pm
class. from harvard, he worked with judge gorsuch. previously was the principal at the doj office of legal policy, where among other things he personally prepared over 100 nominees for confirmation by the senate and in the process earned the attorney general's distinguished service award. professor brian fitzpatrick has an undergraduate degree in chemical engineering from notre dame, graduated from harvard law for justiceked scalia. he taught at nyu school of law and is currently at vanderbilt law school and has received all kinds of awards and published all kinds of books. lastly, jd from notre dame with judge sykes on the seventh circuit and he served as subcommittee counsel and chief counsel and legislative director for senator flake, as deputy
7:23 pm
assistant ag and currently as chief nomination counsel for the senate judiciary committee. so if ever there was a group of folks who know a thing or two about our topic today, judicial nominations and confirmations, this is them. they know a lot about it. let me start with my first question. mike, let me direct this to you. it is quite possible that a number of our viewers are not familiar with some of the procedural, mechanical steps that take place even before a nominee is announced. can you give us a 30 second view of what that process looks like? >> i would be happy to. mark can fill in what i miss. it starts off when a vacancy is announced. so a judge sends his letter to the white house saying i plan to leave the bench for whatever reason.
7:24 pm
at that point, interviews happen, so names are selected by the white house by the department of justice, usually in consultation with home state senators, especially for district courts, and there are interviews at the white house. in the current administration, they are usually in the counsel's office and department of justice. the interviews have a lot of focus on trying to find contextual list -- contextualists. they don't have explicit litmus tests in terms of how you feel about roe v. wade or heller, none of that sort of thing. in the district courts, there are a fair amount of mechanics in terms of what a district judge actually does. i think the jurisprudence is more important in terms of interviewing when it comes to circuits. but for districts, there's a lot of concern. can this person do this job? a district judge is a very hard job. after that, somebody is selected
7:25 pm
, there is vetting by the department of justice and fbi. vetting process, the person is nominated. after the nomination, there is aba vetting on their review and after that, a questionnaire gets sent to the senate, usually while the vetting is going on in the department of justice. the questionnaire is assembled at the same time. that is all the information about speeches they have given, articles they have written. most important cases they have litigated, people they have litigated against and with. that coming to the senate is what sets the clock in terms of the hearing. usually about a month after we receive the nomination paperwork and questionnaire, we schedule a hearing. there are also blue slips, once
7:26 pm
the nomination happens we send blue slips to home state senators. they are blue pieces of paper we send to them. they sign back that they approve the nominee, if it is district court, it is necessary to hold a hearing. if it is a circuit court, the practice is more varied in terms of whether or not a blue slip is necessary to have a hearing proceed. then we have the hearing. people are familiar with those . then after that there is a committee process in terms of transferring the nominee from the committee to the floor, after which they have their vote. and if confirmed, the president appoints him or her. they do in oath of office and they are good. host: we are almost at the halfway point. credit,ould like to get send a message.
7:27 pm
we will use the email as your first login but check in right now at the halfway point. i will address this to the panel. whoever wants can jump on it. one of the things we have seen over the last couple of years in the nominations context and in nearly every context, is how long past a relatively long past social media, public writing or grad school papers can come back to haunt a nominee. talk to us a little bit about that. is that a new phenomenon? maybe it appears to be, or maybe it is longer standing. what advice would you give to people currently in college or law school about what they post and blog about? >> this was one of the most
7:28 pm
disappointing, i think, episodes during the trump administration, as we did lose one very good court of appeals nominee who was nominated to the ninth circuit to replace judge of scanlon because he had written some columns in the stanford newspaper when he was an undergraduate basically making fun of identity politics. they found these articles and they turned them against him and sadly one of our senators from the great state of south notlina, tim scott, was willing to vote for him and so he had to withdraw his nomination. so it is a poignant and real phenomenon you are describing here. is that this is been
7:29 pm
going on for a long time, and it is because i don't think the democratic party can beat republicans on judicial philosophy. we have the judicial philosophy issue sewn up. when elena kagan during her confirmation hearing says we are ists now, i think we know that we have won the battle of ideas. so the only way left to bring down a nominee is to find something personal in their past. that is why they go to college writing, why they go after brett kavanaugh with the allegations they went after him for. in some ways it is a tribute to the success we have had on substance that these issues are used instead. it has been going on for a long time. i think the conservatives have the upper hand on substance for a long time. >> i generally agree with everything brian has said.
7:30 pm
i do think that is the motivating reason why there is a focus on a nominee's past writing and past associations, also if they were a member of an organization they had looked on negatively for any reason. also annk there is opportunity to find something there. this term, this nominees around the age who were writing often for college newspapers during a very politically active time , during i think the 1990's. there is more today with college
7:31 pm
campuses digitizing publications. there is more of that becoming available for people to find. and finally with social media, there are more opportunities for people who don't know that maybe in five years they want to be considered to be a judge to say something dumb or not dumb. but to not behave appropriately or favorably by some people. i think there is a combination of circumstances that has led to this becoming a bigger issue and it is unfortunate because it does put the focus on things that probably shouldn't be that important. certainly if the nominee has done something in their past or said something in their past that is by most people's general standards morally repugnant, that is certainly relevant. but to the extent that people have just expressed opinions and
7:32 pm
did it in a way when they were 19 or 20 years old and might not have done when they were more grown-up and mature, it is unfortunate to reject them from public service on that basis. host: mike, at the beginning you mentioned the american bar association and specifically pointed out something that i think could be an interesting factoid many viewers may not know. fact that inut the recent years, the aba review process has been post nomination. expand on that a little bit and how that might have been different and prior it in estrogens. >> the -- and prior administrations. role has varied
7:33 pm
considerably from administration to administration. history as i understand it was eisenhower was the first president to sort of invite them into the judicial evaluation process and they had a pretty standard role from eisenhower up until george w. bush. when they were thinking of nominating somebody to a court they would give that name to the american bar association and have them run a review. , during the reagan and distraction, got out the american bar association was feeding these names to prepare the opposition research ahead of could certain conservative groups found out about this and started saying why can't we get that information ahead of time? stop sending the information to anybody. that was sort of the background of it. i think what second president bush came into office, they cut
7:34 pm
the aba out of the front-end. so under president bush, they found out what everybody else did and they would be able to do their evaluation afterwards. president obama then put them back in the front end position. nomineesas evaluating before obama and then when trump took over he went back to the george w. bush plan, which they find out when everyone else does. the trick of that is that we move pretty quickly. at least early there was concern that they weren't able to get ratings out by the time there were hearings. when we worked for senator flake, we did a letter commending chairman grassley for just moving ahead with the hearings before the aba rating. it has worked pretty well. i think there have been relatively few nominees who have had ratings but the aba does not find out about it until
7:35 pm
everybody else does. host: let me direct a question to fitzpatrick. i am trying to toss questions to particular panelists but please toif i direct a question someone, if you want to jump in, just raise your hand and don't let me cut you off. i will head it toward somebody but please feel free to jump in. professor fitzpatrick, let me use one well-known example from recent years. not to talk so much about that instant as the question of is this a recent phenomenon? how it is written. you have studied and researched nominations and confirmations. historicalsome perspective. when a then professor, now judge was in her confirmation hearing,
7:36 pm
the subject, the fact that she was of devout became a significant part of that hearing. stated.a, as it was it is a fact that a judicial nominee's fate, which is somewhat distinct from whether they were treated fairly and their degree of devotion, has that ever been relevant in the judicial confirmation process and is this a new feature, a thing we see going forward? >> well, of course, religion should not be relevant but the truth is this has been used against catholics for a very long time. are you going to follow the pope or follow the law? theyou going to follow wishes of the american people? this has been a question hanging
7:37 pm
over catholics for a long time. i thought we had resolved it, but apparently we haven't. i do think there have probably been many more overt instances of certain biases in the past. i think there was a long skepticism towards jewish justices and so i don't think this is the first time we have ever seen anything of this nature, but i think it is the first time we have seen something this overt in a long time and i'm sorry that we have. this is something we are going to discuss today and i know that this is just a sign, these things coming back, of just how polarized and partisan the judicial nomination process has become. the days when someone like justice scalia, just as devout a
7:38 pm
catholic, confirmed 98-0, are long, long gone. >> i agree with all of that from professor fitzpatrick, but having seen it happen a few times now on the committee, i think one of the tougher parts of it is that i think both sides kind of talk past each other or don't understand where they're coming from. i think at least some of the democrats don't think they are applying a religious test. as far as they are concerned, they have no problem with the catholic on the court. there are plenty of pro-choice catholics. this is about determining their policy views, not religious views. but i think republicans see that as know, you are changing the terms of the religious test saying that certain kinds of our oklics i approve of and they are good but others are bad. i think they are operating in
7:39 pm
good faith but talking past each other in terms of theological or sociological problems different , conceptions of what religion is. it is essential for them both to operate in good faith but the result winds up being the long-standing problem of catholics need not apply. so there isn't a clear way forward, and i think professor fitzpatrick is right, but also the overarching issues and the role the court plays in so many hot button issues where religious adherence seen as a proxy for how you see about -- how you feel about those issues. host: i want to get reactions to that. mark, i want you to take this one. so we are talking about the number of filibusters for presidential nominees.
7:40 pm
necessitating a roll call vote. president clinton, 15. george w. bush, 39. president obama, 175. a significant uptick. in all previous presidents, all of them combined, 244. present trump less than four years, 314. obviously, there are some differences of viewpoint and some procedural maneuvers being taken. what we take away from this and what is the effect? what does it tell us about the process? it is an interesting thing to talk about. oftentimes, gets talked about
7:41 pm
today, especially sometimes in the senate, people talk about it depends on what side you are on when the rules are being changed. in terms of the filibuster, it is actually, as you point out, traditionally it wasn't something that was used for executive nominations and judicial nominations. for instance, when the republicans basically followed harry reid's playbook to do away with the 60 vote threshold and filibuster for a supreme court nominee, there's just not a lot of historical weight. one thing that explains the numbers is just the increased retaliation, the increased
7:42 pm
partisanship that has gone into judicial nominees and confirmation. another thing that i think explains the numbers to a certain extent is what harry reid did. once he nuked the filibuster for lower court nominees, filibuster was no longer a weapon that the minority could use to stop a nominee, but they could use it to delay or postpone. once it is a different kind of weapon, i think that is in part why we have seen it deployed so much. now is basically a routine thing today that a filibuster is done on just about every nominee and you have to file cloture to get past it.
7:43 pm
i think it is unfortunate. i think the notion that nominees -- and this for the first time up during the bush administration, the notion that a majority of senators that wanted to vote for them and confirm a president nominee couldn't do that because a minority was preventing an effort to vote was really a new thing. the use of the filibuster in that circumstance is what led to this deterioration over the course of the bush, obama and no w trump administrations. >> until about one year ago, if you filibustered a nominee, you couldn't stop them, but there
7:44 pm
are 30 hours of post cloture time, so you could delay that nomination getting voted on by 30 hours, which in senate time is like two days. we are not here that often. so i think that is why you have those 300 filibusters. 300 times 30 hours under the rules until we change them. it clogs up all the time and prevents us from moving on these votes. they nuked that a year ago and about oneown to two year ago and that is part of why we have been able to confirm so many district judges. as mark was saying, the weapon did not go away, just shifted in terms of how it was used. and this game is still being played, so next week hopefully we will vote on part of a bipartisan package of new york
7:45 pm
nominees. she was the democratic pick in that package and the democrats still filibustered. so we still had to file cloture, we are still going to have to eat up two hours of floor time and she is a democrat. host: let me direct this question to the panel. you can determine who wants to answer. somebody already mentioned that it is part of the vetting process, that it is not litmus test driven. you are not going to ask at the -- ask a candidate argue for or against qualified immunity? how would you vote on qualified immunity? or any other issue. what i gather is that it is to determine [indiscernible] if someone walks in off the street, how do you determine his or her jurisprudential
7:46 pm
philosophy? >> a great question. it won't surprise you to know that just about everybody who walks into the eisenhower executive office building for an interview to be a nominee for the trump administration will tell everyone happily that they for a lifetime have been committed to contextualism and that sometimes it is a challenge sort of figure out what is behind the surface of those kinds of answers. but there are different kinds of ask to seeou can what they mean by that. but sometimes, you can tell who , who maybe just a week before decided to read the cliff notes version of a matter of interpretation by justice scalia.
7:47 pm
they have all of a sudden found a conversion to federalism. extualism. for some people who are very , very smart, they get it and understand it. it is harder to tell if they are really committed to it. in those instances, maybe you have a written record to go off of. these kind of issues frankly may not ever come up even if they had been a judge. it does become a challenge and that is why sometimes you can get cues and information from people who know that person and that is one of the reasons you make phone calls and talk to people who know them, and tease
7:48 pm
out what background they really have. >> i a bit of a dissenter on the am point that we can't ask the nominees questions about their views on legal issues. easierpolitically it is for whatever administration is empowered to have a rule that says you are not allowed to ask nominees about what they might do, but from the perspective of a good democracy, i'm not sure it makes a lot of sense for the american people to have no idea what these nominees are going to do with this life tenure we are about to give them. and so i tend to think the american people have a right now. the judges have life tenure for a reason, and that is if they , change their mind later on, they can still keep their job. they're not going to be under undue pressure to follow whatever they say during their confirmation hearings. and so i would like to have an honest discussion with nominees
7:49 pm
about what their views are instead of just dancing around these issues. it is too important a position, on the supreme court especially, to leave to tea leaf reading. host: one of the things we have heard a lot about, and i will throw these numbers at you. you can discuss whether you think the public perception is accurate or not. one thing we have heard a lot about, and i think the perception is, that under the trump administration, the age of judicial nominees has drastically been lowered. so question one, is that in fact the case? here are the numbers. there is the average age of circuit courts, federal appellate courts nominees under
7:50 pm
the past five administrations. george w. bush, average age was 50. president clinton, 50. george w. bush, 51. president obama, 52. president trump, 48. just the federal circuit court of appeals. president trump with an average of 48 years of age of nominees is a couple of years younger. back to the question, is the perception that all of these judges are just barely out of law school accurate or not? accurate, ist is that a good thing, bad thing, in different? i have views on this but i don't want to keep talking if mike or mark want to chime in. but i think there is too much of a premium placed on finding
7:51 pm
young people for the bench. and the reason for the premium is life tenure. i think that life tenure is the source of many of the problems in our confirmation process. i think that is what led the process to become so polarized, so ugly. both parties are pretty ugly and it gets worse and worse every four years and it all goes back to life tenure. these people can basically be on the bench for 40 years if you find young enough nominees. i really have to wonder if the founding generation, if they had known we would live as long as we do if they would have wanted that. i think it is a fair question whether we ought to consider an alternative to life tenure at some point.
7:52 pm
it would de-escalate a lot of the acrimony we see and allow some more seasoned lawyers to get a nomination every once in a while. i think it is a fair question that we should be thinking some about. host: put that idea in a thought bubble, i want to come back to it. if and how that would be possible. i want to come back to that. you anticipated my next question, but before we go to that, let me see what mark and mike have to say. are they in fact younger? the numbers don't necessarily seem to bear that out. >> i think there have been a handful of nominees that have been a little younger than we might have seen in prior administrations, but if we are talking about a talent pool of country, really highly qualified lawyers who
7:53 pm
could be a federal judge and do a good job as a federal judge, your talent pool isn't so small that you will only find qualified people once they reach the age of 55, or that the difference between 50 and 48 means you have some drop-off in quality. i think professor fitzpatrick is actually correct, that the desire to nominate where possible when someone is a little bit younger is because of the time they can spend on the bench and that if you nominate someone who is a little bit closer to retirement age, you are in some ways just turning that seat right over to your successor in the presidency, whereas if you nominate someone a little younger, there is some staying power. but i would certainly take on anyone who would argue that a
7:54 pm
two year difference has led to a decline in quality of nominee. i think it is actually just the opposite. i think the quality of nominees has been higher than ever. i can tell you from having sat through a lot of interviews with experienced, distinguished lawyers and understanding some of the talent pool across the age spectrum, you can find some pretty terrible judges and terrible lawyers that have lots and lots of experience just as much as you could find terrible lawyers who are terrible because they don't have any experience. i don't think it is a direct correlation. >> let me say quickly, i absolutely agree with mark. president trump has nominated the most talented people for judgeships in american history. his judges are even better than
7:55 pm
ronald reagan, in my opinion , and that is a very high bar. so you are right, there's absolutely no correlation between the two. >> i think it's also the average might not capture it. i suspect if you look at total distribution, trump's judges are probably a little more bimodal than obama, where they were more clustered around 51 or 52, whereas with trump, you have a decent number in the lower 40's. i think part of that is frankly coalition politics where it to -- where it goes to the aba. part of why they have a seat in the process is because the bar is part of the democratic coalition. that is the trial bar, who they need to placate in their judicial nomination process , whereas with republicans it is not really the case.
7:56 pm
host: so what i'm hearing you mahomes or curry can and should be in vp respectively at a young age based on performance and ability and not based on playing in the nba and nfl respectively. agree that across the board, they have been great. there is something to a lot of 's young judges have been fantastic, and at the same time, some of his strongest judges have been his oldest one -- his oldest. one of them was so impressive that the l.a. times had a hatchet piece against him because they were so annoyed at how good of a job he was doing. hawaii has probably been our
7:57 pm
oldest circuit judge, probably just an absolute dynamo. the administration has done a good job of not boxing itself in. host: we have a couple minutes left. i want to be respectful of your time. let me make one last announcement. if you are getting cla credit, this is your final check and. -- check in. in the brief time that is left, i want to circle back to the concept that has been raised of moving away from tenure to another system. how is that possible? can be done statutorily? the idea is that it would de-escalate the process. what are the chances of it happening? anyone can chime in. >> the leading proposal, which i support, is to give every
7:58 pm
justice one 18 year term. the terms would be staggered so every two years, another term would end. every president would get two nominations every four-year term. i think it would de-escalate the acrimony. even if you don't get this nominee of someone you want, the next nominee could be yours two years from now. could it be done statutorily? there are theories that say yes. theories that depend on making the justices coming up at the end of their term into senior justices. i don't know if i buy that. if we have to amend the constitution, then we have to amend the constitution. i think we are getting so bad with the acrimony that both sides might be willing to do something as drastic as that. host: any thoughts? >> i haven't really thought about it. interesting idea. >> it is fascinating.
7:59 pm
i certainly think that it can be helpful if smart people from both sides are trying to collaborate together and de-escalate and ratchet some things back. i don't think many people will argue that the never-ending escalation of partisanship of judicial nomination is a good thing. host: i have more questions that i wish i could ask. i wish we had more time. all that means is that we should get together again at some point in the future. thank you for your time. a fascinating discussion. we are grateful for it. thank you to our viewers. we hope that you will have a safe and enjoyable long holiday weekend. thanks and we hope to see you in a future event. >> >> you are watching c-span, your
8:00 pm
unfiltered view of government, crated by america's cable television company as a public service, brought to you today by your television provider. >> coming up, tonight on c-span. next, "the contenders." elaine weiss -- about the men who ran for the presidency and lost but changed political history. tonight, south dakota senator and u.s. ambassador to the united nations, george mcgovern. then we will hear some personal stories shared at the democratic and republican conventions. now, here's the contenders on george mcgovern. sen. mcgovern: in 1968, many americans thought they were voting to bring our sons home from vietnam in peace. and since then, 20,000 of our and since then, 20,000 of our sons have come home in coffins.


info Stream Only

Uploaded by TV Archive on