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tv   Firing Line With Margaret Hoover  PBS  July 29, 2022 11:30pm-12:01am PDT

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. a powerful republin senator speaks out on the future of the supreme court. and on january 6th and donald trump. this week on "firing line." >> mr. trump needs to step aside. >> he was one of trump's toughest critics before becoming a loyal defender. >> are you willing to stand with me and millions of others who want four more years? >> yes! >>enator mike lee is a staunch conservative who clerked for justice samuel alito. now he is sounding an larmalarm >> we lose ability to protect the court if we allow arguments to take root that are focus opened expanding that. after trump lost in 2020, he explored ways to challenge the election results. >> i encourage the president and his political team to exhaust their legal remedies. >> on january 6th, he sided with
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the vice president. >> our job is to open and then count. open then count. that's it. that's all there is. >> now facing a tough re-election, trump sis on his side. what does senator mike lee say now? >> "firing line" is made possible in part by -- >> senator mike lee, welcome to "firing line." >> thank you. >> you grew up in a family where the one day you would skip school is when your father would argue in front of the supreme court as ronald reagan's solicitor general. >> worked like charm. >> you later clerked for san i'm alito and on a short list for
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donald trump to be nominated to the court. you have now written a book. saving nine. that explains the history of having nine justices on the court. and you write that we arrived at that number through a long series of historical accidents that brought us somehow to the right place. what is right about theumber nine? >> number nine wasn't written on the stone tablets. it's not enshrined in the constitution. it's right because it works. it's right because it's been the law since 1869. for more than a century and a half, we had nine justices. during that same time period we had the greatest period of peac peacetime economic expansion the world has ever known. we brought more people out of poverty within our country. that is more than we thought possible. it works because it helped sustain the rule of law in
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america. if it's not work, don't fix it. by trying to fix it, by trying to change it, you might break it. >> your book is also caught on to the left's audacious plan to pack the supreme court and destroy american liberty. certainly there are congressional democrats who are in favor of packing the court. however, you admit in the book that about half the democrats actually are not interested in expanding the court. the question to you is how imminent a threat is this? >> look, i think it's very real threat. a few years ago no one -- no one in washington would have been taken seriously. it has really since it was last attempted in 1937 had this very lengthy period of the last 85 years of people uniformly
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rejecting it. it was a mistake then. they all said it was a bad idea. that started to change in the last two years. a mainstream thought. not everyone is publicly championing it within the democratic party. doesn't give me much comfort here. you don't actually have to succeed in packing the court in order to inflict lasting damage on the court and the constitution itself. >> how so? >> okay. so the last time this was attempted it was in 1937. it failed as a legislative matter. there the were a number of reasons why it failed. one reason why it failed was because it had the intended infect before they voted on it. it threatened and intimidated the court. >> in your book you spend quite a bit of time criticizing frank
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l franklin del nor roosevelt's court packing scheme. and in 1982 on the original firing line, william buckley jr. hosted a supreme court clerk who is an fdr appointee. in this interview, the subject of the court backing came up. take a look at what he says. >> the court packing plan, i think was a real -- a real -- much more difficult issue. i think in retrospect, i must say as a young law student, i support it. and i must say that i think i was totally wrong. but i think that, you know, he was vexed by a court that was, in my judgement, making the wrong decision. >> so the court packing plan didn't work. pritchard later agrees it was a bad idea. but you make the case that it worked in the sense that it
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intimidated some of the justices. you write in your book, "the biden administration is using the threat of court packing and much the same way that franklin roosevelt did in 1937." >> yes. >> how so? >> well, using it in the sense that even though president biden himself has yet to come out and, well, full throatedly champion this. he has flirted with it. he created a mission to study it. he has never rejected it since he's become president as he had overwhelmin overwhelmi overwhelmingly rejected it. he dismissed it as a bone head idea. he did, after the decision came down, the press secretary did come out and said that is something president does not agree with. that is not something he wants to do when asked on air force one about expanding the court. >> yes. so -- >> and he created a bipartisan commission to study the court. >> yes. i created a bipartisan committee to study the court and it was understood that the job was to
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study this idea, this idea of court packing and idea that almost everyone, republican, democrat, independent had or realized was a bad idea including mr. pritchard. >> and the report refused to take a stand. >> it refused to take a stand. it normalized. it gave credibility to the idea of court packing. one of the reasons why the days following the leak of the dobbs opinion there were trending posts on twitter, #expandthecourt was trending. it normalized it. because all of a sudden you have a lot of former judges and professors and practitioners coming together. many of whom concluded that this was a good thing to do. >> how distinguish between factions of the last two advocated nor position and the majority of sort of centrist democrats who seem to agree with you and the president that it is bone headed idea? >> look, i like to believe.
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i'm willing to accept the premise that most democrats, most rank and file democratic voters out there understand that this is a bad idea. but what i look at when i see washington, what scares me when i see washington, one thing that prompted me to write ts book is that among democrats in washington, those serving in the house and in the senate, you're not seeing many if any come forward and say this is a bad idea. let's not do this. that's a disturbing trend. >> we have the president saying he is not for it. >> that was a tepid denial at best. he's not exactly completely denied he wants to do it. when you have the press secretary say that is not something he wants to do o words to that effect, that's hardly a denial. that's hardly an opposition. that is hardly something saying that the president of the united states would veto any effort to pack the court. >> so there are three co-sponsors on this bill on the senate. it doesn't have broad support in the senate. about you what the you're saying
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is you're concerned about radical ideas and extreme ideas can make their way into the mainstream. >> yes. they make the way into the mainstream. especially when spoken by leading outspoken advocates of a particular policy within a particular party. >> >> i was so surprised that bernie sanders isn't even in favor of packing the court. >> and yet you don't hear him expressing vocal opposition to it. and, sure, there are some democrats who aren't yet comfortable it with. but they're not saying much. >> so on the point about the effort to pack the court having been successful anyway, and the idea that the biden administration is perhaps using this to intimidate the justices, i just have to ask you. you know samuel alito personally. you know many of the justices personally. and i wonder whether you really think that somebody like neil or clarence thomas or amy barrett or brett kavanaugh or sam alito
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would be intimidated? >> i don't believe any of those justices are themselves going to be lightly, easily intimidated. and i think we've seen in our experience just in the last few months that they were threatened and intimidated for many weeks between the leaking of the dobbs opinion and the final issuance of the dobbs opinion. that didn't change their votes there. and i think a lot of credit nes to go to them for that very thing. >> but human beings are what they are. human beings end up responding to a whole variety of considerations. and over time, i think it's very plausible that one or more justices can be impacted in one way or another. and maybe in subtle ways. my point is this. there is not a good reason to increase the number of justices on the supreme court in order to
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achieve a desired political outcome. whenever you do that, you threaten inevitably to politicize the court. when you do that, you really do undermine the constitutional system. >> in your book, you also detail how the founders really intended for the court to be insulated from politics. >> yes. >> even strongly approved of the nominees, and i want to ask you about confidence in the supreme court nationally. because it's at historic lows, particularly among democrats and independents. and democrats and independents account for half of the electorate in this country. and i think of you, especially after having read your book, i strikes me that this decline in confidence in the court doesn't so much have to do with the appointment of trump nominees to the court, but how they were appointed. and so i would think that it would matter to you that such a
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large number of americans, even if they are not republicans, have lost confidence in the court. >> yep. first of all, that is disappointg. that is zdiscouraging here. confidence in most of our institutions is declining. there are a lot of reasons why that may be happening. i don't understand all of them. but the decline in the public's confidence in a whole lot of institutions is becoming more noticeable every day. >> and the court haas has been insulated until very recently. >> relatively so. yeah, there are a lot of reasons for that. now, i think some of it has to do with the fact that the way that they attacked. i mean, first of all, look at the dobbs' decision. democrats' response to that has been to demonize and delegitimatize the court itself. i think that is unfortunate. now sometimes they try to couch that, try to argue as an excuse for delegitimizing the court. we don't think the process by
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which some of trump's nominees were put on the court was legitimate. i don't see that as a helpful productive exercise. i also find it disingenuous. because they were put on the court by the process ordained by the constitution. >> you're up for re-election year. it was tweeted after amy coney barrett's nomination in the final weeks of trump's presidency, refusing to consider another nomination because it occurred in the final year of the presidency and then rushing through your own party's nomination in the final months of the next presidency is a form of court packing. >> no. he could not be more wrong. he could not be more wrong there. that is not court packing. >> you think it's appropriate? >> what he is complaining about in that quote, he's complaining about fact that we didn't confirm merit garland to the supreme court. president obama nominated him. we declined to confirm. now let's understand, he wishes we had confirmed merrick garland
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to the supreme court instead of gorsich. we were sparing him the pain and form formality through a process that we knew would end in a dead end. i don't think it would have made any difference to the left had we held a hearing and then voted not to confirm him. we were not going to do it. so somebody's mad about that. mcmullen is mad about that. he calls that packing. that's not packing. that is very, very different. >> do you think it might have made a difference to the lidge midcy lidge midcy part of the court? >> perhaps. i don't know. i don't really think it would make any difference. i think they were mad at the fact that we didn't confirm merrick garland. now in the past they have held hearings and people they intended to take down. and in some cases they succeeded. intended to take down robert bork and they did.
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of. >> they subjected him to a gruesome hearing process. they failed on that one. we knew that we were not going to confirm merrick garland. so we didn't hold a hearing. >> do you think republicans bear any responsibility for the politicalization of the court? >> no. >> i don't. >> none? >> sure. you can always identify some republicans who have politicized some issues. so i won't say republicans never have any blame on any subject. there is a stark difference between the two parties. i can tell you what i as a republican advocate and what i stand for and what i stand for. i make this point in the book. even with regard to opinions that i regard as wrong, i go out of my way to couch the criticisms of those decisions in such a way i make clear. this is not a bad court that sometimes gs it right. this is a good court.
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it's the best of its kind anywhere in the world. a good court that sometimes gets it wrong because it's run by fallible mortal human beings. i can't say that every republican speaks that way. i can tell you, it's the way i always speak. and by and large, most republican office holders speak of the supreme court more in the terms i just described. the terms that i use and lately, especially, democrats used to also. but today's democratic party, especially the elected leaders in washington, have chosen very different path. >> it feels to me the same fringe promoting packing the court is the fringe that is also that you're characterizing here. it seems to me there is a distinction. >> sure. >> well, yeah. there is a huge difference between lekted democrats serving in washington and rank and file democratic voters throughout the country. >> or democratic progressive
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activists. >> there is also some difference among democratic senators serving in washington, d.c. but there is a difference though. there is no one within the democratic caucus in the senate or the democratic rank and file within the houts who is actively pushing back against those democrats who are undermining the credibility of the court. i do not see it. now i'd love to be proven wrong. i don't see it. >> you served as a clerk for justice alito. justice alito's opinion, in your book, you write how tightly guarded and you spoke to this in interviews, about how tightly guarded draft opinions are. you recall having kept track of where every copy went of old drafts, shredded and then incinerated and then liquified. i wonder what insight you can share with me about how the justices lives have changed.
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since that leak. >> well, they've endured death threats. they used tbe rare. one of them, justice kavanaugh has more than just received a death threat. he had someone show up at his house with all the equipment necessary to break into his house and kill him and his family. their lives changed significantly. >> how has the court changed since the leak? >> the court itself, i hope, doesn't change. won't change. i know they're doing everything they can to not change it. >> among the leaked texts between you and mark meadows is one from january 3rd where you said you disagreed with some of your colleagues plans to object to the election. everything changes, of course, if the swing states push this
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into state law. can there be alternate electors? even aer states certified election results? >> yep. >> once a state certified an election result, and particularly once the lektors have gathered and cast their votes, arguably not. but there is some argument that up until the moment that the votes are open and counted, a state official or a state office could identify a mistake they made, a mistake of law. that -- or a mistake of fact. a certain number of votes weren't counted. they found the proper result hadn't been achieved much it's unclear. there out to be some ordained legal time line by which this can happen. i was suspicious of this from the beginning. what the texts doan show, these
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are part of an on going series of conversations each text isn't cumulative of previous texts and other conversations i had with him and with others in which i was warning them against this. i was saying i don't see a path for you. this is one thing. i believe that there were going to be no slates. but i was trying to get out of him whether he believed otherwise. and that's why i suggested, look, this couldhange if states switch their slates. you are don't see that happening. >> you said i've been calling state legislators for hours today and going to spend hours doing the same tomorrow. i'm trying to figure out a path i can persuasively defend. what kind of path could you have defended? >> again, in theory,tion if a state legislature were an officer authorized by state law had identified a defect in the way the state had counted its tes, it couldn't just be a willy-nilly thing. the legislature decides we want
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donald trump to be the president. that wouldn't do it. it would have to be this is the correct outcome under state law. and we messed up. putting it in an analogous position to the state of hawaii in in the 1960 presidential election, state of hawaii had certified that they had made a mistake of fact as to the nixon slat and so they recognized the kennedy slate as pasting the legitimate votes. it has to be something like that. my point there was i didn't see any indication that any of this was happening. and i couldn't get any information out of the white house but at the same time, was hearing rumors from around champs elysees and the country suggesting this is happening. i couldn't get any information from nick. >> so you took it upon yourself? >> in the last 72 hours before january 6th, i real why i do need to know this. because people were assuming that we were going to be getting these competing sides.
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i saw no indication of that from anywhere else. i started randomly cold calling legi legislators i never met from all the states. saying i just need to know something. you are guys planning something on this? every one of them, without exception, said no. >> president trump endorsed you in your re-election. and while you haven't always supported him, you did vote for him in 2020. and i want to ask you specifically about january 6th. the former president took an oath to preserve, protect and defend the constitution of the united states. do you think that president trump's actions leading up to and on january 6th lived up to that oath? >> look, a lot of things went wrong on january 6th. i think leading up to it, i think he got some bad advice. i think there were some peopl who for whatever reason, maybe they believed what they were sayings with true, but they were not right. or i don't know what happened.
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he got very bad advice. he got bad intelligence. and i think he, perhaps, believed that this stuff was really going to happen. that the election really had been stolen in such a way that he could himself change the outcome of it by notifying people of what was coming. i really don't know. i do think it's unfortunate for a variety of reasons that capitol hill wasn't adequately fortified that day. >> how about on that day? >> did he -- >> on that date, we knew in the days leading up it to, we got reports from capitol hill police and from, i think some of it came from e department of justice and the fbi from the department of homeland security that there were a lot of people planning to converge on capitol hill and a little worried about capitol hill security. there were a lot of things that went wrong that day. i don't know exactly to whom each of those mistakes are attributable. sure, i would have loved to have
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seen more of a direction from the president of the united states earlier in the day saying, hey, knock this stuff off. don't go into the capitol. >> how about during those 187 minutes? >> sure. >> you are doing nothing. is that upholding his oath to the constitution? >> i don't think doing nothing was the right thing to do. >> was it not upholding the oath to the constitution? >> i don't know enough about what he was doing during that time. it seems to me that had that been me, i would have thought that my to the constitution would require more than that. i don't know what he was told or what he was experiencing. i would have been pleased to see something earlier than that. >> because you went against donald trump's intentions, efforts, desires, by choosing not to object and certify the election. >> i voted to certify. >> you voted to certify. you chose not to object. and mike pence presided. but 2:24 on january 6th, as you
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know, trump tweeted mike pence didn't have the courage to do what should have been done to protect our country and our constitution. >> yeah. i was very -- i was very dispd disappoint bid that. i have never, not in my lifetime, i have never seen a vice president more loyal and more supportive of the president with whom he served. >> so who is worried about the constitution in that moment? was that mike pence? >> mike pence. >> so donald trump was wrong about the constitution. >> yes. yes. and i think he got some very bad advice about the constitution that day. >> does that disqualify him from being president dagain? >> what i learned what qualifies someone to be president is the voters. >> how about for you? >> i would love to hear some time his side of it, his explanation for this. >> has that happened yet?
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>> not yet. >> i hope he gives it to you. i hope he gives it to the american people. >> in >> indeed. >> senator mike lee, thank you for coming to "firing line." >> thank you. >> "firing line" is made possible by --
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