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tv   QA Ilya Shapiro Supreme Disorder  CSPAN  October 4, 2020 11:00pm-11:59pm EDT

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its new term monday, hearing oral arguments via conference call. listen to the oral arguments live or on-demand at supreme court. ♪ justice ginsburg: when i was growing up, the first branch was very different than it is today. that persisted. i think back to 1993, when president clinton nominated me for the good job i now hold. i had been general counsel to
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the american civil liberties union for several years. the vote was 96-3 in my favor. my biggest supporter on the judiciary committee was not the then chair, senator biden, although he was certainly in my favor, but it was orrin hatch. i think today he would not touch me with a 10 foot pole. [laughter] we are still friends, but if it came to a vote on me, i don't think he would be the supporter he was in 1993. it was similar with stephen breyer when he was nominated the next year. this was well into the 90's, a vote in his favor. it has not been that way for the four most recent members of the court.
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and it has been on both sides of the aisle. i wish there was a way i could wave a magic wand and put it back to when people were respectful of each other and congress was working for the good of the country and not just along party lines. someday there will be great people, great elected representatives who say enough of this nonsense, let's be the kind of legislature the united states should have, and i hope that day will come while i am still alive. susan: ilya, you just published a book on the supreme court. we just heard the late justice ginsburg, hoping for a day when congress would return to less partisan times.
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you call it, under the same toxic cloud that affects all of our public discourse. how did we get to this point? ilya: yeah, i share her wish that we could wave a magic wand and unwind it. it turns out this is what i , wanted to find out in writing a book, after i set out to write about the kavanaugh process. it turns out that politics has politicsen part of the of confirmations and nominations. george washington had a nominee rejected, the president had to balance regional concerns, then it become a matter of slavery and on and on. different things played a role. what is new is that first of all you have big centralized government in washington over the course of decades. power has been amassed in the supreme court has played a part in that, and within washington, a skew away from congress that
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doesn't resolve controversy so much anymore but hunt it to the administered of agencies and executive branch, which are sued, and it goes to the court as well. so you have that important decision-making process. at the same time, different interpretive theories map onto partisan preferences when the parties are more ideologically sorted than at least the civil war, if not ever. of course there's gonna be a fight every time there is a vacancy for one of these powerful seats. susan: one of the downsides is the public increasingly sees the court as a political institution. is that the right way to look at it? ilya: i think it is definitely unfortunate that people see the court as liberals and conservatives, let alone democrats and republicans in the partisan vein.
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that is the natural result of this dynamic, where if you are an originalist or textual list, if you view the law as the meaning of the words when they were enacted, you will probably going to be appointed by a republican president. if you are more pragmatic, you think the meaning of the text changes over time, chances are you have been appointed by a democratic president. it is that ultimate divergence in different views and methodologies that is causing that. there are no more liberal republicans or conservative democrats. even though i make it clear, try to make it clear in my book i am not saying the court is a political actor and that is different from saying the process of nominations and confirmation has been and has to be political because of the nature of the dynamic, i think it is unfortunate indeed that
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people see the court as another political actor i can to -- akin to congress or race for the white house. susan: before we get into the history you have written about, you are the lead constitutional scholar at the cato institute. for viewers and listeners, would you tell people who are the cato institute and tell me specifically about your center and what you do there. ilya: cato is the country's largest libertarian think tank. we are politically independent, we are generally for limited government and individual liberty and free markets. my center was established over 20 years ago now, over 30 years ago now, about a decade after cato itself. it is now 43 years old. we published papers, file amicus briefs with the supreme court
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and other courts. we tweet, blog, published papers. my job is a lot of fun, straddling the legal, academic and media world. susan: i wanted to start with a set of statistics you offered about scotus nominations in general. we put those on a chart. there have been 164 nominations to the court, including the current one. of those, 126 were confirmed. 12 withdrawn, 12 rejected, three postponed, and 10, no action. and then the one currently in play with judge amy coney barrett. let me ask you on the 10 with no action, that is a flashpoint for the current nomination because of no action on merit garland. -- merit garland. let's listen to the leaders talking about the process. [video clip] >> the american people do not need any more revisionist history lectures, anymore
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threats, or any more performance outrage from the side that launched and escalated this fight time after time after time. there is one course. it does right by the judiciary, the senate, the yet unnamed nominee, and the american people. it is a fair hearing, a fair process, and a fair vote. >> here's how the republican leader describe the senate role in confirming supreme court justices. he actually said, "we have an obligation under the constitution to consider supreme court justice should we choose to take advantage of it." did you catch that? did you catch that, madam president? it is an obligation but only if the republican leader chooses to take advantage of it. i see -- when a democrat is president, it is an obligation
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you don't have to take advantage of. susan: you study the history of nominations. who has a history right on election year nominations? ilya: you can argue it lots of different ways, and politicians being hypocrites on both sides is nothing new either. you talk about a little bit of the statistics. to go more broadly, which party controls the senate and white house is the whole ballgame here. that might be obvious but it is a real difference historically. i will get to election year and a second, but overall, counting all of those nominations we had before judge barrett. confirmation rate is about 90% if they are the same party, and if they are different parties, it dips below 60%. that difference is even more accentuated in an election year. election year, 19 have been during a united government and 17 of the 19 have resulted in confirmations.
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one of the ones that didn't was a technicality with george washington withdrawing and resubmitting nomination. that got confirmed. with divided government, only one in 10 have gotten confirmed, the last time that happened was 1888. you could argue that is the major principle and mitch mcconnell has been making that point. at the end of the day, these are political arguments. there's nothing in the law about it, it's just making your case to voters that this is kind of judge we want and the people elected us and we will pass it, or let the people have their say. at the end of the day, these are political arguments the voters have to ultimately weigh in on. susan: during the upcoming nomination hearings, people will hear from phrasings regarding the nominee. textualist and originalist, are they synonyms for the same
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thing? ilya: textualist is statutory. they are similar beyond that, except the constitutional interpretation often takes part in a greater historical time and it is harder to get at what the original public meaning of what the text might mean. we look at contemporary dictionaries, how the language is used to understand what something might mean. textualism, it is more modern statutes, the language is very similar to what we use, if not the same. you kind of parse it together in context. susan: they may also hear questions about the phrase natural law. what does that concept mean? ilya: this came up a fair bit with clarence thomas's confirmation nearly 30 years
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ago, and it is the idea that there is an underlying principle or substance to the law, natural rights sometimes is invoked as well -- the rights we have in nature before any human government is formed, inalienable rights given by our creator in the words of the declaration of independence. the natural law is kind of the background on which we legislate, around which the constitution exists. a kind of filling in the gaps, if you will, of the text. susan: if confirmed, judge amy coney barrett would be the fifth female to serve on the court, but the six nominated, harriet miers failed. what was the reason for the failure? ilya: she was considered not up to the job at the end of the day. she had trouble in meetings with senators and in the so-called murder board, that's when the
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nominees practice with white house and justice department officials for confirmation hearings and never having in an academic or judge or constitutional lawyer, she was in private practice and close to george w. bush, his personal lawyer and then white house counsel. she did not have the same kind of background as most modern supreme court nominees do. at a certain point, the bush white house felt she was not up to the job and they pulled her. susan: as we are talking this morning, judge barrett is beginning one-on-one meetings with interested senators. in your book, you tell a number of stories about how important the personal introduction to senators was for certain nominations. with such a divided congress, do they matter as much? ilya: probably less, especially since the republicans seem to
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have the votes to from unless something comes out of left field between now and the eventual vote. maybe with a more moderate democrat, if she can charm them, and she is very graceful and charming, so maybe that might give some bipartisan cover perhaps. at the end of the day, this close to the election with tensions heightened, these meetings are probably less important than they have ever been. susan: she is 48. how does that age put her in the spectrum of appointees? ilya: right around the sweet spot. a little younger than the average. i think gorsuch was 49, kavanaugh 52. thomas was 42, 43 when he joined the court. we have had younger people. she is not exceedingly young. right around the middle. it means she could serve for 30 years or more.
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that's been a big change in the modern era. before about 1970, the average tenure was under 20 years. since 1970, is more than 25. susan: her law degree is from notre dame, every other sitting justice is from harvard or yale. when did that trend take place? ilya: very recently. john paul stevens was northwestern and rehnquist was stanford. this kind of professionalization or goldplated credentialing in the legal profession, and this is the pinnacle of the legal profession, is a fairly recent development. in earlier decades, you did not necessarily travel far, especially to law school, if you wanted to practice in chicago, you went to law school in chicago. now the law is becoming nationalized and elites in all
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professions becoming nationalized, there is the skew. having gone to the university of chicago law school myself, i think it's a breath of a to have some of midwestern experience. -- a breath of fresh air to have some of midwestern experience. susan: the hearings of course will be televised live, streamed live on the internet, followed by social media, blog about and covered in every way. when was the first public confirmation hearing in our history? they were not always. ilya: for most of our history, we did not have them. the first was 1916. we don't have c-span footage, unfortunately, but i would contend it is the most controversial one we have had. people ask me which was the worst we've had, expecting me to choose among kavanaugh, thomas and bourque, but louis brandeis, in 1916, the first jewish nominee, and even more controversially, was a social progressive, wanting to reform all sorts of industries, civil
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rights, a host of areas that made him politically very controversial when he was appointed in that presidential election year of 1916 by woodrow wilson. at the time, it was so controversial that they had for the first time a public hearing, but it was seen as unseemly for the nominee to appear. so he did not and the process lasted five months. the longest confirmation we've ever had. the voting margin was broader than some of the more contentious ones recently, but it was very heated. even more, once he got on the bench, very soon after, charles evans hughes, one of his colleagues on the bench resigned, to run against president wilson and the election. if you thought 2020 or 2016 was politically contentious in the terms of the interplay of the presidency and the court, 1916 gives it a run for its money. susan: the first time a nominee appear before a committee and testified, the first time was 1938. what were the circumstances?
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ilya: felix frankfurter, also happened to be jewish, but i don't think it was that. he was a harvard professor and they wanted to question him more broadly. it did not last very long, and indeed, what we are used to did not really start up until the 1960's and it did not last the four days, either. byron white, in 1962, his whole hearing was an hour and a half, wherein he testified 15 minutes, largely about his football playing career. definitely the last justice to have played in the nfl while being a yale law student. but yeah, things have changed. susan: the first televised hearing was sandra day o'connor in 1981. in your final section on reforms to the process, one of the things you suggest is no longer televising the hearings. why do you suggest that?
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ilya: that is perhaps an awkward thing to touch upon when talking to c-span, but i think the hearings were a good development and broadcasting them was a good development, but at this point when everyone knows what will go on, it is at best kabuki and at worst harmful to public discourse. the nominee is coached and trained to talk a lot and not say anything. justice ginsburg perhaps pioneered that method at her hearings in 1993. the senators, those are of the same party of the president trying to lob softballs and making the nominee look good, in the opposing party is either trying to have harsh gotcha questions or just speechifying to have a clip for their election campaign advertisements. we don't learn very much about the nominee and we don't learn very much about the law, and all
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of their paper trails, their judicial opinions and academic writings are available online at the end of the day. you could still have a close hearing to discuss the fbi background report, sensitive financial records, those sorts of things they already do in closed session, but the public hearing i think gets us all much more into the muck and harms the process in public more than it benefits. susan: while were talking about access to the court, the court announced when they open sessions, october hearings will be made available by telephone as they happen. it was a covid driven innovation for the court. are you a fan of real-time streaming of court arguments? ilya: i like the audio and i like the audio when they ask questions one after another rather than the free-for-all when the lawyer barely has a chance to say a few words in response to a question before another one is asked.
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that is also a covid innovation because they are using i guess a telephone conference call. it is not a zoom. they made it into the 20th century, not quite the 21st. they get to have about three minutes at a time, each justice, asking a question and the advocate responds. it has worked out. we've had some sittings that way in the spring. the longer this goes, the more the norm is established we will have live audio, and i think it will be hard to put the genie back in the bottle. susan: you probably know what our positions are on that question. during the presidential campaign, there are suggestions a biden presidency and a barrett confirmation might lead to the expansion of the number of seats on the court. the number nine, as you tell in your history, is not set in stone. the court has been various sizes through history. how was the number nine decided
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on and when? ilya: we started with six, and then when john adams lost his reelection bid to thomas jefferson there was a decision , that gave adams more magistrates to appoint and cut the seats on the courts to five to prevent jefferson from getting a chance to appoint the court. in the lame-duck session, again, after adams lost, that's when he nominated and confirmed the federalist controlled senate, marshall was a lame-duck appointee of a losing presidential election. after that, thomas jefferson expanded the court back to six. then we had the seventh seat later added, jefferson's attempt to counteract john marshall's
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federalist sway on the court, and then eighth and ninth seeds were added under andrew jackson. they led to dred scott, solidified a jacksonian view of state and federal relations on the slavery question and that was not a good thing long-term. it went up to 10 briefly under nixon and congress tried to cut that back under andrew johnson, who was impeached but not removed, but it is an active law. it is not something constitutional, it would just take a simple act of congress signed by the president. the senate would have to get rid of the filibuster first, there is a senate rule that says you need 60 senate votes to proceeded to a final vote on legislation.
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there is no more filibuster or judicial nominees, that was gotten rid of by the democrats. if the democrats win the senate by enough of margin and joe biden wins the white house, it becomes a possibility they could remove the filibuster and add however many seats they want. although they should be cautious. all of those 19th-century occasions i noted did not really benefit the country long-term and the last time something was tried was by fdr when the supreme court, the nine old men as they were called, were rejecting new deal programs and roosevelt proposed to add an assistant justice, how helpful, for the oldest men, over 70. that was usually unpopular and his vice president campaigned against it, the chief justice, and progressive justice brandeis were against it. even though fdr had been reelected in a huge landslide in 1936.
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in 1938, the democrats lost eight seats in the house. so be careful with that. susan: dwight eisenhower had five appointments and most significantly put forward earl warren as chief justice. he later called this the biggest damn fool mistake i ever made. it is important to talk about the war in court. -- the warren court. why was it his biggest mistake? ilya: earl warren was a republican governor of california and had a moderate record and was a popular figure in the party and contributed to eisenhower being selected as a presidential nominee. it was a bit of a reward as well as recognizing this was an esteemed republican public official and lawyer and should be a good choice for the court, especially to be chief justice, given the political skill
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required for that job. ultimately warren was a progressive, a liberal on the court and a host of ways, whether with regard to civil rights -- it was his court to put in the unanimous -- this was one of the less controversial parts of the court, the brown v. board of education and desegregation, the unanimous order. but other things related to criminal procedure and other areas that effectively spawned the modern conservative legal movement in response. eisenhower in seeing the direction warren took the court i think was surprised and disappointed. susan: 1968, lbj administration, the abe fortis elevation to achieve. you said this provided the inflection point to the modern era. tell me the story. ilya: one of the inflection
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points in my book, the first part is the past until 1968 and the second part is what i call the present, really from nixon through kavanaugh. the third part is future possible reforms. before we get to fortis and lbj, i thought you were going to go to the election year vacancy a month before the election with eisenhower, which he called his second biggest mistake on the court, where the senate did not want to go back, they were campaigning, and he appointed william brennan. brennan was not a surprise or should not have been because he was already a left-leaning justice on the new jersey supreme court. eisenhower picked him to shore up support in the metropolitan northeast, especially among catholics. that came up a lot as well.
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it was an appointment, not a confirmation, a month before the election and somewhat controversial. moving to 1968, this is warren again, announcing retirement. lbj is the president and announces because of vietnam and his dwindling popularity, he will not be running for reelection. but he nominates fortis to elevate him to be chief justice. fortis had bipartisan opposition on ethical concerns. he had not disclosed certain things. some people call this the very first filibuster of supreme court nominee, but he never even got to that point. he never had a majority of declared support in the senate and it was not purely partisan opposition. that nomination goes nowhere. richard nixon wins the election and ultimately gets to replace earl warren with burger. susan: how did that work out?
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ilya: the language they used was a little different at the time, they talked about strict construction which justice , scalia would say is a misnomer, you want narrow construction. strict construction is what they talked about. burger was a moderate conservative, that was known for changing his vote, was known to be cagey in various ways, and both in terms of intellectual or jurisprudential output or management of the court by modern historians is not given very high grades. another appointment nixon made -- nixon was moderately happy with burger, but another appointment nixon would be disappointed in, harry blackmun, who authored roe v. wade among
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other opinions and votes on the left he would take. blackmun had been buddies with burger, they were known as the minnesota twins, but at the end of their lives, blackmun did not go to the funeral of burger's wife. they had had such a falling out, mostly over these jurisprudential commitments. susan: you referenced roe v. wade, 7-2 decision in 1983, and it is obvious to anyone listening to this that it becomes the central theme of every supreme court nomination. what is it about that particular decision that has made it continue to be argued so vociferously in the united states? ilya: i agree with justice ginsburg actually and her criticism of roe v. wade, that it was premature and cut off a political debate going in a certain direction in the country, as well as doing it the wrong way, talking about an amorphous privacy right
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somewhere and during a previous precedent among various amendments, rather than what justice ginsburg would have it, and equal protection, women's equality justification. it's also different in other privacy cases, unlike the contraceptive cases that came before it or the homosexual, sexual activity cases that came after it, is not just consenting adults. at some point, there is the second human, whether at birth, conception or anytime in between. the way it short-circuited the political debate is unlike the way debates have proceeded in any other western democracy, where eventually there may have been court rulings but the political process was allowed to work.
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as you say it shaped and , poisoned our legal discourse ever since. curiously, roe v. wade and the issue of abortion did not play too large a role in the of nominations and decisions that came down after. president ford nominated john paul stevens, a moderate republican in his day, sort of to the left jurisprudentially. he was not asked about that case, and sandra day o'connor, in her 1981 process it did not , play that large a role. it really wasn't until bork in 1987 that roe assumed the huge role it plays in all of our supreme court discussions. susan: president nixon also had other important appointments, including powell, and he brought william rehnquist to the court. it was the first time the aclu
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opposed an appointment to the court. why was his appointment controversial? ilya: there were a few reasons. rehnquist was known as a law and order type at the justice department, there were concerns about statements he had made about rolling back certain criminal procedure rulings that the warren court had made. also when he was clerking on the supreme court for justice jackson, there were memos he wrote about brown v board, there were some questions about was he on the wrong side of history on issues like that. also he was in the justice department, which was getting to be politicized in the nixon administration. this was before watergate. he did not participate in the saturday night massacre as robert bork did but there was an affiliation of sorts.
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definitely the most conservative appointment president nixon made, and these controversies would come back again when president reagan elevated bill rehnquist to be chief justice. that is the same time that scalia was nominated by president reagan. that is part of the reason why scalia was confirmed unanimously. susan: a quick note about jimmy carter, one term president, no supreme court openings during his term, but you're right that he shaped the federal judiciary -- how? ilya: in consolation, as it turned out. congress significantly expanded lower courts, adding circuit and district judgeships.
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carter appointed more judges in one term -- i am blanking on the number, i think it was 269 -- than any other president, a record we are unlikely to see beat, including 59th circuit judges. trump is close, i think he's at 53. carter was able to transform certain circuits, certain he the ninth circuit. it leans left not because of geographic, but it is the history, it's that carter got to build about half of the newly expanded court and a sort of stayed in the democratic appointed family ever since. carter is one of four presidents who never got to appoint a supreme court justice. susan: ronald reagan made scotus a campaign issue. he seated half of the federal judiciary during his two terms. i wanted to talk to you about edwin meese in the direction of the federal court. ilya: he had worked with reagan
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when reagan was the governor of california, and kind of previewed the judicial selection process he would take to the white house in california. that is to look at people who were not simple he loyal republicans, but look at what kind of intellectual or jurisprudential commitments they might have. at the same time, with robert work and scalia and other academics, originalism was a burgeoning area of intellectual fervent. meese gave a famous speech in 1985, halfway through reagan's two terms, talking about the need for appointing originalists. at the time it was original intent of framers but that has been refined since nobody cares or knows what james madison had to say about violent video games, but what the words on the page meant when they were enacted.
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meese played an important role in linking intellectual develop into the sort of judges that president reagan and subsequent republican presidents wanted to appoint. susan: in addition to scalia, reagan also brought anthony kennedy and sandra day o'connor to the court and elevated justice rehnquist to chief. let's focus on the nomination of bork. that was in 1987. verb forup creating a borked."e, "i got let's listen to an event that happened on the senate floor shortly after president reagan announced the nomination. this is senator ted kennedy of massachusetts talking about the impact of judge bork if he succeeded on the court. >> robert bork's america is a land in which women would be forced into back alley abortions, blacks would sit at segregated lunch counters, rogue police could break down doors in midnight raids, and
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schoolchildren could not be taught about evolution and artists would be censored at the whim of government. the doors of the federal courts would be shut on the fingers of millions of citizens for whom the judiciary is and is often the only protector of the individual rights that are the heart of our democracy. susan: 12 days of hearings, five days of questionings for the nominee himself, and a 42-58 vote against his nomination. what happened? ilya: there were a number of things. first of all, i think the republican strategy, the white house strategy was flawed. they tried to portray him as neither a liberal or conservative, just calling them as he sees them, much in the way of lewis powell, the moderate and swing vote at the time who bork was nominated to replace.
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and they were not ready, the republicans, for the attack by ted kennedy and others. the outside activist groups. this was a fairly novel that got tremendous media attention and accentuated the attacks on bork. a little bit of demagogue rhetoric. that speech came less than an hour before the formal nomination was made. the rapid response operations used now were not in place. bork himself did not do himself any favors. a senator from illinois would write in his book about the confirmation process, which was significantly about the bork hearings, he tried to sway debaters points than pickup votes. he gave these very dry, turgid
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lectures about points of law and was not endearing himself to the committee regardless of the ultimate merits of his legal opinions. this was the first time a nominee was rejected effectively for his judicial philosophy, not simply that he was not qualified or ethical issues or came from the wrong part of the country. susan: why did it become a tipping point? ilya: the media attention and the role of outside groups was a big deal. the idea that someone so eminently qualified, and everybody agreed he was, could be rejected, came as a shock. even after the democrats had won the senate in the 1986 elections, and that was a key thing that happened between the scalia-rehnquist confirmations and the bork confirmations.
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joe biden had told of the reagan white house that if they nominated someone like scalia or bork, things would be ok and the outside groups would have to deal with it. a year later, biden was running for president already and had heard in earful. as chairman and under the attacking leadership of senator kennedy, they needed to get a scalp, if you will, and oppose this direction on the court. before we got anthony kennedy as the eventual confirm nominee for the sea, we had douglas ginsburg, announced by president reagan, but before he was submitted to the senate, it came out he had smoked marijuana at law school. i consider him the last public casualty of the drug war, i can't think of another public
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official harmed by coming out that he smoked marijuana. susan: we have about 20 minutes left. we have to fast-forward through some interesting modern history. a quick note about david souter. you said it became an object lesson for future presidents. why is that? ilya: the republicans basically overreacted after bork. they saw what happened was someone who had a long track record of potentially controversial or at least twistable positions, and they wanted someone who would be a good conservative on the court but without that kind of track record. being vouched for by john sununu, the chief of staff from new hampshire, and the senator from new hampshire, they pushed david souter, who had been
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attorney general in that state, and briefly on the supreme court in that state before reagan tapped him for the first circuit, and eventually picked him over someone with a much more visible conservative record, edith jones, who to this day is on the fifth circuit. she was appointed to the fifth circuit when she was 35, i believe, by president reagan. it would've been very different if bush had gone with edith jones. susan: clarence thomas, i'm sure everyone listening has memories of what happened, and we are noting that the current democratic presidential nominee was chair of the committee during the hearing. you write that it was the right nominee at the wrong time and it was the greatest shift in jurisprudence in the court's history. what you think are the lessons from the clarence thomas confirmation? ilya: we have the most contentious confirmation
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processes when big shifts are possible. he was nominated to replace thurgood marshall among the most progressive, left side of the court, the first african-american on the court, and here was clarence thomas, even though he was also african-american, was then and still is the most conservative member of the court. that shift is probably even bigger than the one we will see if judge barrett replaces justice ginsburg. that goes into why we are living in such a controversial moment. thomas was young as well, i think 42 or 43 by the time he joined the court. and he is on the court nearly 30 years later and he could still serve, he is in his early 70's, for a while yet. we talked about inflection points and this was an indication of a shift on the
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court. george bruce brought john roberts and -- george bush brought john roberts and samuel alito to the court. john roberts quickly became chief after the death of william rehnquist. you write that he is the first chief justice to be a median vote in half a century. what has his tenure been like so far? ilya: he's only been the median vote for a couple of years, since justice kavanaugh replaced justice kennedy. and i mean median, not swing. he plays a different role and goes about it differently than kennedy did, who was truly a moderate and can go different ways on different types of cases. roberts is a conservative and that is hard to deny. i don't think he has shifted to the left as others have done since during the court, but he -- since joining the court, but he is more of a minimalist.
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he doesn't want the court to move in big steps, doesn't want to get too far ahead of public opinion and wants to defer to the political process as much as possible. he cares about those sorts of things and judicial restraint, not acting boldly, more than things like original-ism or textualism or overarching theories. we've seen particularly in the last two years when he has been in the middle of the court jurisprudentially, not just physically as the chief justice, some of his votes or have scratches based on his past records. the abortion case this past term, the obamacare case, when even kennedy was ready to throw out the entire law. roberts has been acting in a way that to his mind, and we can debate how successful he has been or if he was calculating correctly, in a way to try to preserve the court's institutional reputation or legitimacy. susan: throughout your book, you talk about the varying standards that individual presidents
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brought to their supreme court selections. when we moved to president barack obama, what were his standards for choosing his two justices? ilya: it's a little different for democratic presidents than republican ones, although the set of appointments is much lower in modern times as well. we've only had four supreme court nominations by democratic presidents in the last 50 years. what obama wanted was someone on the progressive side. it is hard to err therefore democratic presidents because the legal profession is generally to the left, at least at elite levels, and he wanted representational picks. he wanted more women on the court. i think why sotomayor was his first pick is he wanted a hispanic voice on the court as well. all things being equal, or slightly unequal. so yeah, he appointed sotomayor
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and elena kagan, who was at the time and remains the only non-judge, the only person without judicial experience. she was a solicitor general. both of them have continued to be fairly reliable votes on the left side of the court. with kagan also being cagey and more political and putting together coalitions in the middle with john roberts. susan: moving on to president trump's nominees to the court. first, neil gorsuch. a few democrats crossed over for his nomination. when you watch the confirmation process he went through, how does it say in the context we've -- how does it fit in the context we've been talking about? ilya: it is hard to separate the gorsuch nomination itself from what happened the year before when justice scalia died in february 2016. there had not in an election
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year vacancy since 1968, the fortis elevation. and there are these arguments about whether the senate had a duty to act and all of this sort of thing. and of course merrick garland was nominated. the republicans had won the senate, and they said there should be a rubber match for the people to decide who should make the pick. it was a gamble that ultimately mitch mcconnell won, risky one, i think more people expected trump to lose, and hillary clinton could have nominated someone less moderate than garland. out of that bad blood and the unusual nature of donald trump's candidacy, the resistance to his presidency that is ongoing to this day, you have the garland nomination. the first ever partisan filibuster of a supreme court nominee. chuck schumer probably knew this
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would mean ultimately the filibuster would be gone and he would have much less leverage over the future, presumably kennedy replacing nomination let alone ginsburg. but felt he had no choice. the base wanted blood. ultimately mitch mcconnell voted to eliminate the filibuster and gorsuch was confirmed. you recall, thomas was confirmed 52-48 and alito was 58-42, and it could have been filibustered. there was an attempt to filibuster alito. joined by about half the democrats, including joe biden, barack obama, hillary clinton, chuck schumer. those looking for their own political future. it had never gotten to the point of an actual filibuster blocking a final vote until gorsuch. he got through on the party line except for three votes.
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and a year later, it came time for kavanaugh. susan: let's play a clip from the judiciary committee hearing. it shows the theme between the two parties as they approach the brett kavanaugh nomination. this is dick durbin and lindsey graham. [video clip] >> i am telling the truth. >> i want to new what you want to do. >> i am innocent of the charge. >> you are prepared for an fbi investigation? >> they don't reach conclusions, you reach conclusions. >> if there is no truth to the charges, the fbi will show that. are you afraid they might not? >> this is not a job interview. this is hell. this is going to destroy the ability of good people to come forward because of this crap.
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to my republican colleagues, if you vote no, you are legitimizing the most despicable thing i have seen in my time in politics. susan: nominees are still coming forward in the process is still happening. what has been the outcome of the kavanaugh nomination? ilya: a poisoning of the well between the parties and supporters of the parties. i think the kavanaugh experience, like the putting together of the list of potential nominees by donald trump in 2016, forged together the republican coalition further, and a lot of people who might perhaps not have wanted to push for a nomination this time around because of what they feel is the unfair treatment kavanaugh had, they are going along with that now. it was a further escalation and
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further ratcheting up of tensions in this modern tit for tat regarding confirmation battles. susan: your book closes as you reference descriptions for what ails the process and the court. what is really practical? what kind of solutions can the country approach that are achievable? ilya: those that are practical would not do that much and those that would do something are really impractical. or too politicized. term limits is talked about a lot. there has been more chatter recently because we want to avoid, ideally, these morbid health watches over octogenarian justices or politically timed retirements. i had an op-ed in the atlantic last week, and there was a
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seminal article on term limits. about 15 years ago, there was an article about an 18 year limit, so people would know when they vote, it would directly affect the confirmation process. i think it would help public confidence in certain ways but it is not a panacea. it would not change the courts ideological balance or the power the court has and therefore the importance of the seats, even if they are only 18 years, rather than 30-plus. plus, it would take a constitutional amendment. if we had the unity of will to achieve that, maybe there would be less underlying tension in the first place. other proposals, in terms of packing the court, expanding the number, restructuring and other ways, may cycling through lower court judges, they are very political. they are either impractical or it would be seen as so political it would only continue the cycle
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of partisan retribution. at the end of the day, a lot of reform proposals are rearranging deck chairs on the titanic. the titanic is not the process, it is the ship of state. it's the product of a court that has to rule on national controversies in a large and diverse society. if we had centralized government power with the court ruling on all issues rather than having congress resolving it or state legislators resolving it, given the separation of interpretive theories that map onto partisan preferences, there is no way to avoid these big fights. just as it took decades for us to get where we are, i think any change will come not soon but it would have to be more gradual. susan: another thing your book demonstrates, a nominee appointed to the court can be very different over the worst of his or her tenure.
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always affecting the outcome of decisions. ilya: yeah, presidents have in mind the next election or a particular issue, executive power in wartime for george w. bush. who knows what the real controversies will be in 20 years and how they arise? certainly, even if you don't so call misfire with a david souter or john paul stevens or warren, there's a lot of unpredictability in this business. susan: as a new session opens in confirmation a process is underway, i want to thank you for talking about your book. we appreciate your time. ilya: my pleasure. go to, not only to buy the book, but you can download an appendix to dive down into these nominations. susan: thank you again.
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♪ [captions copyright national cable satellite corp. 2020] [captioning performed by the national captioning institute, which is responsible for its caption content and accuracy. visit] >> all "q&a" programs are available on our website or as a podcast at >> she spends washington journal, everyday we are taking your calls live on the air on the news of the day, and we will discuss policy issues that impact you. coming up monday morning, previewed the new supreme court term and the upcoming confirmation earrings for judge and aney barrett, discussion about the 25th amendment and continuity of government with a michigan law professor. watch washington journal, live
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at 7:00 eastern monday morning. be sure to join the discussion with her phone calls, facebook comments, text messages, and tweets. president trump appeared in a short video posted on twitter from walter reed medical center where he is being treated for coronavirus. after the video was posted, the president waived to supporters from his motorcade just outside the hospital. after a brief ride, he returned to walter reed. we are getting great reports from the doctors. this is an incredible hospital, walter reed. the work they do is absolutely amazing, and i want to thank them all, the nurses, the doctors, everybody here. i've also gotten to meet some of the soldiers and the first responders, and what a group. tolso paid a little surprise some of the patriots we have out on the street and they've been out there a long time.


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