B (2:45)

Well, it's for all practical purposes, completely unprecedented to say we won't meet with this candidate, we won't hold hearings, we won't have a vote. That is something which hasn't happened certainly in the 20th to 21st centuries, and so far as they know, never in American history.

A (3:02)

And even if it's a highly polarized 5, 4 court, and the Court is about to shift the way we might see it shift now, even then, you're telling me that somebody gets a hearing and gets seated?

B (3:17)

Not only that, in the years since 1968, there have been 16 confirmations of justices to the Supreme Court. In eight of those instances, the justice who was confirmed clearly moved the Court in a significant ideological direction from where it was before. That is, the new justice was considerably different ideologically from the justice replaced. What's interesting is that in all eight of those cases, the President appointing the justice was a Republican. In each of those instances, the nominee was confirmed with the effect that the Court has moved dramatically to the right since 1968, largely because, for example, Warren Berger was confirmed to replace Earl Warren, or Lewis Powell was confirmed to replace Hugo Black or Harry Blackmun to replace Abe Fortas or John Paul Stevens for William Douglas or David Souter for William Brennan or Clarence Thomas for Thurgood Marshall, and so on. In each of these instances, there was a sharp move of the Court ideologically. And in each of those instances, the Senate, sometimes controlled by the Republicans, sometimes controlled by the Democrats, confirmed because in each of those instances, the nominee was thought to be well qualified and reasonably moderate. And despite the fact that the appointment had a significant change on the way the Court would do its business, the Senate did its job, which was to confirm as long as the nominee was in fact, well qualified and reasonably moderate.

A (4:55)

One of the things that's really been hard for me, Jeff, is there's this kind of shifting array of arguments that are proffered, and you go through these in your most recent piece, and so you sort of think, oh, the argument here is, you know, the President is a lame duck President. He's in his last year. Let the people have a voice, right? That was the initial argument, but then as soon as you muster arguments to that, you get a different set of justifications. So what is your answer to the ostensibly constitutional objections? That the President is only the President for three years, and we're so close to a new presidential election that we just have to let the people decide?

B (5:36)

Well, first of all, it is the fact that vacancies in the last year of a President's term are relatively rare, mainly because justices generally don't voluntarily step down in the last year of a term. Nonetheless, in 10 instances, presidents have nominated and the Senate has confirmed confirmed new justices in the final year of a President's term. And this includes such obscure presidents as George Washington, Thomas Jefferson, Andrew Jackson, Abraham Lincoln, William Howard Taft, Woodrow Wilson, Herbert Hoover, Franklin Roosevelt, and even Ronald Reagan. There are a few instances in the early 19th century where the Senate did not confirm a nominee in the last year. But in every one of those instances, the sitting President had not been elected. It was a President who assumed office because of the death of a president. And in those years, the Senate had a view that, well, maybe the President who was never elected in the first place in the last year of a term shouldn't be able to do this. But except for those few cases, in every other instance when this has occurred, the President is nominated, the Senate has confirmed, and so far as I know, Barack Obama was elected president twice. And he is no different in this regard from the names I just read off, all of whom were in similar situations and all of whom had their nominees confirmed. The other issue, of course that's raised is, you know, the notion that, well, we should let the next president should decide. And this again is just a ludicrous point. The President of the United States is elected for a four year term and it is responsibility to meet the obligations of the position, whether it's to be commander in chief, whether it's to deal with international relations, whether it's to sign or veto legislation to the last day of the term. And the notion that the President should somehow be denied the constitutional authority that is given to him by our Constitution in the last year is simply not at all supportable historically. I mean, the truth is, this is about one thing and one thing only. It is about the fact that the Republicans in the Senate don't want to confirm a nominee who will affect the ideological balance on the court. And these arguments that they've given are frankly just excuses that have no credibility and carry no weight.

A (7:57)

Now, before we leave the constitutional question, there was a dust up about two weeks ago about something that I'm not sure what I think about, which is does the Constitution require the Senate to give a hearing? Is advising consent something that the Senate must do, or is this an utterly voluntary enterprise that the Senate can simply say, yeah, no, you can't make me.

B (8:23)

Well, there's nothing explicit in the Constitution that requires the Senate either to have a hearing. Indeed, for much of our history, the Senate didn't have hearings on Supreme Court nominations. And nothing in theory requires the Senate to confirm a nominee, but there is a understanding about the purposes and design of the Constitution. When it was adopted, it was not completely clear what advising consent meant, but the way the framers understood it, frankly, was that at one point, you know, they were distrustful of the President of the Executive when they were first creating the Constitution. And so they talked about the possibility of letting the Senate nominate and appoint Supreme Court Justices. And they decided that didn't make a lot of sense because having a multi member body like the Senate make nominations and appointments is not a very realistic way to go. So what they decided to do was to give the power to the President, but as a check on the President, because they didn't always trust the President, they said, well, you can't just appoint Supreme Court Justices. You've got to go through the process of getting the Senate's consent. And what that exactly meant was not clear from day one, but over two centuries of experience, it has become clear. What it means is if you appoint someone who's not qualified, the Senate does not and should not confirm. If you nominate somebody who is way off the mainstream of legal thought, then the Senate is within its rights to say, no, we think that person's not appropriate for the Supreme Court. But if the President nominates someone who is well qualified and reasonably moderate, the tradition has developed that that is appropriate. And it is the responsibility of the Senate to hold hearings, to vote, and in fact, to confirm in those cases.

A (10:10)

But you've used these words that are so, it seems to me, so central to the fight we're having now. You're using words like tradition and norms and rules, but that seems to be having no salience in the conversation. Right? These are just norms. These are just traditions. And it seems to me that isn't part of the problem that, you know, even if you've got a norm that's 200 years old, you can just walk away from it and say, yeah, it's not the norm anymore.

B (10:38)

You can walk away from the text of the Constitution as well. And you could choose to disregard Supreme Court opinions because you don't like them. You know, we don't like judicial review. We don't agree with the Supreme Court's interpretation of the equal protection clause or with the Supreme Court's interpretation of same sex marriage or whatever. I mean, but norms are fundamentally what make a legal system operate. The Constitution is filled with relatively vague provisions which over time come to have meaning and they can be departed from with reason, with justification, with explanation, with argument. But in this instance there's none of that.

A (11:15)

So let me just ask you about the other in the shifting array of justifications. The other one that's come up that's quite funny I think to me is, well, the problem is that Merrick Garland doesn't believe in gun rights. And I don't know if you've heard the ads, we can listen to one now. But the idea that his vote to take a case en banc in the D.C. circuit Court of Appeals, he never wrote a word about guns, but he said, hey, we should look at this gun case has become emblematic of an antipathy to the Second Amendment. Let's listen to this ad. It was a million dollar ad from the Judicial Crisis Network that aired last week in Colorado.

B (11:58)

President Obama wants another liberal Supreme Court justice.

A (12:01)

The NRA says he would take away law abiding Americans ability to own firearms for protection.

B (12:07)

Small business leaders say he would side with special interests.

A (12:12)

Jeff, what do you do when instead of looking at the 19 year record of the nominee, we're speculating about a vote to go en banc and that says Mitch McConnell is evidence that the NRA would never agree to this nominee?

B (12:28)

Well, I mean, the problem is Mitch McConnell is supposed to do his job as a member of the United States Senate, not be the agent of the nra. Democratic senators, for example, have voted to confirm many justices whose views on particular constitutional issues that they care deeply about were either absolutely known or reasonably predictable on issues like abortion and affirmative action, on campaign finance. We all knew what John Roberts and Samuel Alito and Clarence Thomas and Antonin Scalia thought. But the fact is Democrats said, okay, that's not our business. Our business is not to refuse confirmation for justice because we happen to disagree with the position he might or might not have on a specific issue. That's just not the Senate's job. If that were the test, then we would not have had on the Supreme Court Antonin Scalia or Clarence Thomas or John Roberts or Alito or Rehnquist or Warren Berger for that matter. Because members of the Senate would have said, well, they have positions we don't like, so we're not going to let them be on the Supreme Court. What you have then is total paralysis and chaos and that's not the way the Constitution is supposed to operate.

A (13:31)

And is this then an indictment? Can you turn this into a sort of pox on both your houses indictment of the big advocacy groups and lobby groups that have made a nominee's position on, you know, abortion on the left or abortion on the right or guns or on, you know, any number of issues, the litmus test. And then they spend millions of dollars to un seat or to not even in this case afford a hearing to a nominee, because there is a machinery, I think, on both sides that didn't exist 100 years ago. Is that the real problem?

B (14:09)

I think that's exactly right. I mean, I think what's happened is that it used to be the case that the Senate could do its business on confirmations in a reasonably businesslike way without much public attention, without it being highly politicized in the vast majority of instances. But several things have happened. One is the media televising hearings has made the process something much more accessible to and therefore of much greater interest to people, which is both good and bad. The Internet, of course, has expanded that dramatically. The growth of interest groups that have a strong voice in the approval or disapproval of what members of Congress choose to do has had an enormous impact. And then of course, Citizens United and the impact of money on the political process has given those interest groups 10 times, 100 times more power than they would have had otherwise. So, yes, this is the product of the fact that members of Congress are across many different issues, not only this one, much less willing to do their jobs and in a responsible manner, and much more willing to do the bidding of their donors. And this is a very dangerous thing for the current state of democracy in the United States. And it threatens not only this issue, but the whole legislative process as we've seen in recent years.

A (15:34)

You've heard me say this before. I love the Great Courses and I'm excited about their new the Great Courses plus video learning service. Now, instead of trying to pick out the one course that's interesting to you, you have unlimited access to a vast library of the Great Courses lecture series in all kinds of fascinating subjects ranging from science to history to cooking. You can watch full courses start to finish or just select the specific lectures interesting to you. The Great Courses plus has nearly 5,000 different video lectures taught by top award winning professors. And you can watch these video lectures from the Great Courses plus at any time with from anywhere on your tv, laptop, tablet or smartphone. So get started today with this great offer. Go to thegreatcoursesplus.com amicus and you will have unlimited access to the entire the great courses plus library completely free for an entire month. That's thegreatcoursesplus.com amicus and don't forget the plus. So I want to back into something you said right at the outset because you said, and I think this is really, it seems to me, the crux of the problem that what Republican obstruction, you know, you take away the bells and the whistles and the guns and the, you know, give people a voice stuff. And the real heart of the issue is we don't intend to lose control of the court. And if that's the heart of the issue, then if Hillary Clinton is elected in November, that problem doesn't go away. I think an article this week in Politico calls this full scale constitutional meltdown. Right. It's not clear to me at least that their posture changes if unless a Republican is elected president in November. Right.

B (17:22)

I mean, I think we already have full scale constitutional meltdown. To be clear, I think that what the Senate Republicans are doing here is on the order of the Southern Manifesto in which a group of Southern members of Congress signed a manifesto essentially stating that their state should not abide by the ruling of the Supreme Court in Brown v. Board Board of Education. It is a complete defiance of constitutional responsibility and obligation. That's number one. Number two is that if a Democrat is elected president in the 2016 election. I think your point is exactly right. The concern, the anxiety, the terror that the Republicans would feel about a Garland confirmation at that point, or the truth is in selecting Merrick Garland, who's a wonderful jurist, President Obama was already giving enormous deference to the Republicans. If you made a list of all of the potential nominees that a Democratic president would consider, Merrick Garland is on the far right of that list. And so if a President Clinton is elected, assuming she decides I want to make my own nomination, it's very likely that it would be someone who's considerably less to the right than Merrick Garland, what will the Senate Republicans do then? Well, I mean, I said at a lunch conversation with my colleagues the other day that I didn't believe they would confirm any realistic Democratic nominee. I think that they will throw the nation into this kind of a complete chaos because they think they're so terrified of their interest group supporters that the thought of allowing the Supreme Court to move, and by the way, we say move, if Merrick Garland confirmed, one has to ask, what would the Supreme Court be? Well, my view, if Merrick Garland were confirmed, it would basically move the court back to where it was when Samuel Alito replaced Sandra Day o'. Connor. And it's not the end of the world for the Republicans in truth, but this is the concern they have, and I understand the concern, by the way. I mean, I do understand why they don't like this. It will mean that the Court will be much less sympathetic to a whole set of issues that they like. But it's important to remember that when Alito was confirmed, the the Court effectively overruled recent decisions in which Justice o' Connor had been in the majority on issues of affirmative action, on issues of abortion, of issues of campaign finance reform. And that's a switch that happened only a relatively short time ago. All this would do is move it back to that point in time.

A (19:56)

And o' Connor famously said at a conference once, very shortly after Alito replaced her, she said, they're dismantling my entire legacy. I mean, she had been the critical fifth vote in one central doctrinal area after another. And you're quite right to point out, I think that all got washed away in the course of just a few years. So the idea isn't so much that the Court is radically transforming, it's just shifting infinitesimally back. So let me just ask you briefly, because in this past week, we've seen kind of two hard to reconcile messages coming out of the Court. On the one hand, Justice Alito said very shortly after Justice Scalia died, oh, we can stay the course. We can do this eight Justices thing for a long time. We will just slog through it. On the other hand, I think this week we saw some pretty good evidence, you know, a 4, 4 decision in the public sector unions case, Friedrich, which we talked about on this show earlier this year, which means that nothing happens, which means that public sector unions live to see another day. And then we saw a very perplexing order this week in Zubik, the contraception mandate case that more or less looked like a cri de cur from the Court saying, oh, my God, we don't want to be forced and have a patchwork of decisions in the lower courts. Are we starting to see out of the Court a real visceral sense that being four, four, possibly this term, possibly next term, is not a sustainable solution?

B (21:29)

Well, of course, being four, four is not a desirable state of affairs. No court is constituted in such a way to have an even number of Justices for the obvious reason that you don't want this situation to arise. My is, this is not the problem. I mean, the problem is that we should be going through the ordinary process of naming and confirming a Supreme Court Justice. But it is a problem, and the Court will, you know, will manage it. It will manage it with some bad outcomes in the sense, not necessarily ideologically bad outcomes, but it'll leave things unclear and confusing and leave lower courts in disagreement. But that happens. I mean, that's not the end of the world. If eventually there's a ninth, just the court can clean that all up in six months or a year or 18 months. I don't think that's the fundamental problem. I do think the fundamental problem is that what we're seeing here is a completely constitutionally illegitimate action on the part of the Senate Republicans. But sure, it's confusing and it's complicated, and that's why we never have courts with even numbers of justices.

A (22:37)

Before we leave this vacant seat, I want to ask you one last question. Because you've known Barack Obama for a long time, I think, since he was a student. Do you have some sense of what the play was here? In other words? Boy, I have gotten a lot of angry mail from people who said, why didn't he put up someone I can get excited about? The left needed to be rallied. Why did he put up the least exciting nominee that he could possibly find? To me, it seems like this is pretty in keeping with what Barack Obama thinks the court is. But do you have some thought or speculation or ins about why, in the face of, you know, the opportunity to pick another Brennan and another Marshall, Obama chose Amarit Garland?

B (23:28)

So, first of all, Obama was not a student here. When I was dean of the law school, I hired him to join the community here as a lecturer in law, and then he spent the next dozen years at Chicago. Just to be clear. No, I think your analysis is spot on. I think that that President Obama, from the time I first got to know him as a young academic and lawyer, was a relatively moderate liberal. He was a little skeptical about judicial activism. And I think people like Kagan and Sotomayor, who are moderate progressives, were the kinds of justices he ideally thought should be on the court. He was not someone, I think, who, who, even if he had a free hand, would have been quick to appoint a William Douglas or William Brennan or Thurgood Marshall to the Supreme Court. Now, Merrick Garland is not an Elena Kagan or Sonia Sotomayor. And my guess is that if the president had had a free hand, he would have appointed another justice like them, a sort of more moderate but liberal. I think Garland was, because he wants to get this done, and he thinks that this is a responsible compromise. He understands the position the Republicans are in. And this was a genuine effort, I think, on his part to find common ground and to say, look, I've given an awful lot here and I'm taking a lot of heat from my more liberal supporters who think I should have gone with a more progressive nominee. But I think this is Obama being a reasonable person, which is what he is, in fact, and trying to get this done. And I think it's deeply disappointing that the Republicans have not understood that or I guess have simply turned their back on it.

A (25:13)

He's the last reasonable man in America. This is truly a tragic state of affairs. Before we let you go, Jeff, I want to ask you about an unrelated topic, but one you've written so eloquently on. You know, you wrote an article many years ago that I thought was incredibly brave and I know it was polarizing, called Our Faith Based Justices, where you talked about the elephant in the room, which is that the court in that instance, it was looking at the so called partial birth abortion ban. And you simply said, you know, how can we not talk about religion when we're talking about abortion cases? And you can describe the fallout, but you've been one of the people who has very openly connected the religion of the justice, the faith of the justices and doctrine in some cases, particularly the abortion cases. And I wonder if you would talk about that for a minute.

B (26:12)

Well, I first became kind of sensitive to this issue back in 1972, 73, when I was a law clerk to Justice William Brennan and the Court was deciding Roe v. Wade. And I watched Justice Brennan address the conflict that he himself felt between his religious views about abortion and and what he felt were his constitutional responsibilities as a Justice. And I remember coming away from those conversations with the justice, very impressed with the effort he made to separate his personal feelings from his constitutional responsibilities. And what led me to write the piece you're referring to was the Supreme Court had, in a 5, 4 decision, held that prohibition of so called partial birth abortion was unconstitutional. And then after Justice Alito replaced Justice o', Connor, the Court almost immediately turned around and effectively overruled the prior decision, saying that a ban on partial birth abortion was permissible? And calling to mind my experience with Justice Brennan had led me to write this op ed which basically raised the question of were these justices careful enough in thinking about separating their own personal religious views from their constitutional responsibilities in the way that Justice Brennan had been several decades earlier? And I made the point that one would have a similar reaction if there were a group of Jewish Justices who voted in a way that was completely different from the other justices on the Court on a matter that clearly implicated issues of, let's say, Israel, or if there are a group of African American justices who voted differently from all the other justices on the court on an issue that clearly implicated the interests of African Americans. And I said, it's not realistic not to think about the question in those circumstances. Is this affecting the justices, and if it is, how do we think about that? Is it appropriate? Is it not appropriate? And so on. In this instance, I thought it was inappropriate to the extent it was the case. And I caught, I have to say, a lot of flack about it. But the most interesting response was from Justice Scalia. Justice Scalia and I had been colleagues at the University of Chicago Law School and friends for a number of years, and we remained friends after he left the law school to go first on the Court of Appeals and then on the Supreme Court. And I learned from some students that he had said, I will never set foot in Chicago again and never hired a Chicago clerk again as long as that stone remains on the faculty. And I was. I discounted this as implausible. But then I heard it from several other people. And then a biography was published about Justice Scalia which related the fact that Scalia again, re emphasized this point in speaking with the author. And I was really disappointed in Justice Scalia because we are friends and we have talked about things over the years. And eventually I decided that this is not acceptable. Not only is it not acceptable in terms of a personal relationship, but also he really wasn't willing to come to the law school to hire our students as law clerks. And so I wrote him a letter in which I basically said very carefully, I'm sorry you were upset by that op ed. He didn't say, I was sorry for the op ed, but I said, I'm sorry you were upset about the op Ed. And Scalia, at this point, particularly, I think embarrassed because of the biography, wanted this done. So he called me immediately, and like a good Catholic, Catholic that's quoting him, he forgave me. And we then moved on from that moment as friends again. And he came immediately to the law school and started giving talks and started hiring our students again. But the truth is, the fact that Scalia responded the way he did to that, to me, was in some degree a confirmation of what I was worried about.

A (30:07)

And he's. You know, one of the things that was striking to me is he's written at length about how easy it is for him to separate his Catholic faith from, you know, his jurisprudential viewpoints. And again, I sometimes felt, you know, he was so careful to say this over and over again that one couldn't help but think, hmm, why does he feel so strongly about this? But I guess I want to ask you why this is the third rail when we talk about justices. I mean, we are hopefully poised for confirmation hearings at some point in the future, and we are not going to talk about religion again.

B (30:45)

We. Well, we like to imagine and have the aspiration that justices decide cases based upon the law, and the law is not about what race you are, what religion you are, what ethnic origin you are, what gender you are. We know, of course, that those things inform the thinking of justices in often positive ways because they give them a better understanding of the richness of the circumstances that may be presented by any particular case. But we also hope that they're able to, in the end, separate themselves from those perspectives and reach decisions based upon what we regard as appropriate legal considerations. And we also know that justices do have strong ideological differences, and they're often predictable in their votes. And sometimes they're predictable because we understand they have a judicial philosophy that actually leads to a fairly predictable set of outcomes. But oftentimes we also know, and this is true for liberal as well as conservative justices, that they have personal perspectives and interests that others would regard as biases. So I don't think it's surprising that we're reluctant to talk about the issue because we do have this need to accept the aspiration that justices are not voting their race or their gender or their national origin or their religion. And for the most part, I think justices do strive, as Justice Brennan did, to do just that, but not always perfectly. And I don't this may be an unfair statement because I haven't gone to look. But my guess is if you looked at Justice Scalia's decisions during the time he was on the Supreme Court, that it would be very hard to find many that would not have come out in a way that a good Catholic would have wanted.

A (32:38)

Wow. That's a sobering and incredibly, it seems to me, timely note to end this conversation on.

B (32:45)

It also may be wrong, by the way. So I haven't gone and checked that, but that's my guess.

A (32:50)

Well, someone I'm sure who's listening to this podcast is going to check and write in, and I will let you know. Professor C.H. jeff Stone is the Edward H. Levi Distinguished Service professor at the University of Chicago Law School and a nationally acclaimed scholar on the First Amendment and a regular contributor to all sorts of national magazines. Jeff Stone, thank you so much. It was really a pleasure to have you.

B (33:15)

It was great fun. Thanks so much Sally. Anytime.

A (33:19)

And that's just about going to do it for this week's episode of Amicus. Please, please do let us know what you think. We have been loving reading the mail you've been sending in, especially the mail in nomination of Walter Dellinger, last week's guest to fill the vacant seat at the U.S. supreme Court. Our email address is, as ever, amicuslate.com Please also consider leaving a few words of support on our itunes page. Your reviews there always help make our show more visible to the those who don't know about it. Just search Amicus in the itunes store and click on the Ratings and Reviews tab. And thank you for that. If you're a new listener or have missed any of our past shows, you can always listen to any and all of them on our show page. You will find that@slate.com amicus and if you're a Slate+ member, you can find transcripts of our shows there. Although be warned, it takes a few days for them to post. Thank you as ever to the Virginia foundation for the Humanities where our show is taped. Our producer is Tony Field, Steve Lichtai is our Executive producer, and the Chief Content Officer of Panoply is Andy Bowers. Amicus is part of the Panoply Network. Check out our entire roster of podcasts@itunes.com Panoply I'm Dahlia Lithwick and we will be back with you very soon for another edition of Anarchist.

B (34:42)

It.