Why It’s Worth Opposing Gorsuch

Summary

Podcast Summary: "Why It’s Worth Opposing Gorsuch"

Amicus With Dahlia Lithwick | Law, justice, and the courts
Host: Dahlia Lithwick, Slate Podcasts
Guests: Senator Sheldon Whitehouse, Tom Rosenstiel
Date: March 18, 2017

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Episode Overview

This episode explores the contentious confirmation of Supreme Court nominee Neil Gorsuch, the political stakes surrounding his appointment, and the broader implications for the integrity of the Supreme Court. Dahlia Lithwick interviews Senator Sheldon Whitehouse, who sits on the Senate Judiciary Committee, on why opposing Gorsuch is significant beyond the individual nominee. Later, she transitions to a conversation with journalist-turned-novelist Tom Rosenstiel about his timely legal thriller, "Shining City," which delves into the machinations behind Supreme Court confirmations.

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Interview with Senator Sheldon Whitehouse (00:33–20:13)

The Stakes of Neil Gorsuch’s Confirmation

• Why Gorsuch’s Confirmation Truly Matters (02:29–05:34)

  • Whitehouse argues that any Supreme Court nomination during this period is significant due to a pattern where a Republican-appointed majority tends to side with big special interests, reshaping economic, judicial, and political systems to their advantage.
    • “Americans have a lot at stake in having a court that goes back to being a court again and doesn’t turn itself into a delivery system for big special interests.” (02:56, Whitehouse)
  • The significance is amplified because the Republican Senate majority, by refusing to give Merrick Garland a hearing, transformed a constitutional process into "a power play," calling for Democrats to use the hearings to educate the public on the deeper problems at play.

• Legitimacy of the Hearing after Garland’s Blocked Nomination (04:00–05:34)

  • Whitehouse acknowledges the frustration over legitimizing GOP obstruction but insists that showing up to the hearings is essential to “make a really strong case to the American public...about what has gone wrong with the court and why.” (04:46)

Tracing the Influence of Money and Power

• Connecting the Dots: Citizens United and Special Interests (07:28–09:33)

  • Whitehouse draws a straight line from big money’s influence (as seen in Citizens United and subsequent decisions) to judicial outcomes, McConnell’s obstructionism, and the very nomination of Gorsuch.
    • “In cases that pit corporations…against human beings, it is 17 to 0 in favor of corporations in those five to four decisions…That makes a kind of sordid triangle of influence.” (08:24, Whitehouse)
  • Lithwick notes Gorsuch’s record doesn’t offer much on Citizens United, but Whitehouse counters that Gorsuch, in the Hickenlooper case, endorsed strict scrutiny for political donations, which signals he would likely “come down on the side of the influencers” (09:45–10:31).

• Public Distrust and the Court’s Reputation (10:31–12:26)

  • There’s broad bipartisan dissatisfaction with Citizens United; Whitehouse points out, “85% of Americans think it’s a horrible decision.” (10:45)
  • This has left Americans believing that “a corporation is likely to get a fairer shake from the Supreme Court over a human being rather than vice versa.” (10:55)

The Powell Memo and the Conservative Legal Project

• Historical Context: Powell Memo as Blueprint (11:12–13:27)
  • Lithwick draws on the 1971 Powell Memo, suggesting that today’s Roberts Court is the “full flowering” of its vision for corporate dominance.
    • Whitehouse agrees, quoting major court watchers who see the Court as partisan and ideological, e.g., “Chief Justice Roberts has served the interests and reflected the values of the contemporary Republican Party.” (12:52, citing Jeffrey Toobin)

Framing the Gorsuch Debate: Mainstream vs. Special Interests

• Is There a Judicial ‘Mainstream’? (13:27–15:47)
  • Both Lithwick and Whitehouse reject “mainstream” as a meaningful standard, focusing instead on the battle between unprecedented special interest capture and public frustration.
    • “Everybody brings their own mainstream to the debate…there ain’t no mainstream.” (13:55, Lithwick)
  • The critical question is whether the Court will act as a neutral, independent body or continue to side with the powerful.

Erosion of Norms and Democratic Danger

• Destabilization of Judicial Norms (15:47–17:35)
  • Lithwick and Whitehouse discuss the dangers of accepting the Supreme Court as a mere political entity, warning that to do so would erase “the wonderful joy and luxury of living in an honest government.”
    • “For this generation to blow it, I think would be a really significant disgrace in history’s judgment.” (16:32, Whitehouse)

Should Gorsuch Bear the Sins of Trump? (17:35–20:07)

• Presidential Responsibility and Judicial Independence
  • Whitehouse argues the focus must remain on Gorsuch’s record, not Trump’s controversies.
    • On Trump: “He gets up in the morning, he tweets a bunch, he watches the news…but in the meantime, Vice President Pence and the Koch brothers operation are all carefully just laying the groundwork for...the running of the government.” (19:19, Whitehouse)
  • The big questions are whether Gorsuch will continue the special interest agenda or bring balance.

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Conversation with Tom Rosenstiel: The Mechanics and Morality of Confirmation Drama (21:04–44:18)

Shining City: Fictionalizing the Confirmation Circus

• Why Fictionalize the Supreme Court Confirmation? (21:05–23:41)

  • Rosenstiel chose the topic because “so much of it is cynical and a kind of kabuki theater…a great way of capturing kind of the inner hidden Washington.” (21:20)
  • His protagonists—fixers often maligned as amoral—serve as truth-tellers and carry the story’s moral core.

• Parallels Between Life and Fiction (24:40–27:40)

  • Rosenstiel describes the eerie timing: the writing was completed before Scalia’s death, and his novel’s justice dies the same day as Scalia.
  • The fictional president, Jim Nash, seeks to nominate a true moderate, a constitutional “essentialist,” reflecting a yearning for independence and consensus lost in today’s polarized process.

The ‘Essentialist’ Judge: A Third Path

• Inventing a Middle Ground (27:09–30:23)
  • The fictional nominee’s philosophy—"essentialism"—sees the Constitution as a compromise, not sacred text:
    • “Rather than some kind of biblical text, it’s just what people at that time agreed to...original intent is simply to get a government created.” (27:55, Rosenstiel)
  • The character’s independence leaves him with weak partisan support, echoing the plight of real-life moderate picks like Merrick Garland.

Judicial Experience—From Academia to the Trial Bench

• The Value of Real Trial Experience (31:36–34:37)
  • Rosenstiel’s nominee is unique for seeking actual trial experience, shaping his empathy and pragmatic outlook.
    • “He actually sat on mundane trials and dangerous trials and murder trials.” (33:16, Rosenstiel)
  • Lithwick highlights the impact: “This is what is missing in the conversation around who is a viable Supreme Court nominee.” (31:36, Lithwick)

Moderation and the Machinery of Partisanship

• A Love Song to Moderation (34:37–37:44)
  • The novel’s theme is a plea for moderation in Washington’s polarized world:
    • Rosenstiel: “There is a covert center in Washington, but those people do not talk about it...It would make it very difficult to get reelected.” (36:19)
  • The machinery of confirmation—a pre-scripted, interest group-driven theater—drowns out actual debate.

Generational Changes and the Vanishing Center

• Old Hands vs. Young Firebrands (37:44–39:32)
  • The novel depicts veteran lawmakers as brokers of compromise—a dying breed, as younger members are less inclined to cross the aisle.

The Confirmation Process: Kabuki in a Surreal Present

• The Rituals Remain, Despite an Unusual Era (39:32–44:18)
  • Lithwick and Rosenstiel discuss how the “funhouse tunnel” of confirmation rituals persists unchanged, even as the country enters new political territory with the Trump administration.
    • “They are told, you know, don’t answer these questions substantively. This is not a national course on jurisprudence. They are taught how to be evasive…” (41:30, Rosenstiel)
  • Rosenstiel notes how the advent of interest groups and money have overtaken the process, compared to the world of “Advise and Consent” (1959): “There are no interest groups, no staffers, and the words Republican and Democrat never appear in the book.” (42:50)

Memorable, Concluding Insight

• What Would Fix the Process? (43:33–43:52)
  • In answer to Lithwick’s question, Rosenstiel’s single change: “Pick a moderate.” (43:51, Rosenstiel)

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Notable Quotes and Moments

• “When five Republican appointees get a Supreme Court majority...we’ve seen significant torquing...in favor of really big special interests.” (02:29, Whitehouse)
• “Everybody brings their own mainstream to the debate…there ain’t no mainstream.” (13:55, Lithwick)
• “For this generation to blow it, I think would be a really significant disgrace in history’s judgment.” (16:32, Whitehouse)
• “Perception is not reality. Facts are reality.” (22:59, Rosenstiel)
• “Pick a moderate.” (43:51, Rosenstiel)

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Key Timestamps

• [00:33] Introduction to the episode and Senator Sheldon Whitehouse
• [02:29] Why the Gorsuch fight matters and the special interests at stake
• [07:28] Drawing connections: Citizens United, big money, and the Court’s direction
• [11:12] The Powell Memo and intentions behind a partisan Court
• [15:47] On the dangers to democratic norms and legitimacy
• [17:35] Should Gorsuch bear responsibility for Trump’s actions?
• [21:04] Tom Rosenstiel on why he wrote "Shining City"
• [27:09] Invention of a judicial ‘middle way’—essentialism
• [31:36] Importance of real judicial experience
• [34:37] Novel as an advocacy for moderation and the vanishing center
• [39:32] The confirmation process as theater in the age of Trump
• [43:51] If only one thing could change: “Pick a moderate.”

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Final Thoughts

This episode offers a compelling dissection of why Gorsuch’s nomination is more than the sum of his own record, probing the broader implications for democracy, the court’s legitimacy, and the role of moderates in a time of growing partisan machinery. Both the real-world interview and the fictional narrative discussed highlight both the perils of captured institutions and the nostalgia for truly independent, practical, moderate judges.

Transcript

[Senator Sheldon Whitehouse]

To me, the thing that is the huge flashing billboard right front and center is the past record of the court, with a 5 to 4 Republican majority.

[Tom Rosenstiel]

Staffers and interest groups and money propel much of the action. And you have a group of very talented and originally idealistic people who came to Washington to try and make the country better. And many of them feel trapped in this system.

[Dahlia Lithwick]

Hi, and welcome to Amicus, Slate's podcast about the law and the Supreme Court. I'm Dahlia Lithwick. I cover the courts and the law for Slate. Starting Monday, Donald Trump's pick for the Supreme Court seat that has sat empty for well over a year now is going to start his confirmation hearings. Judge Neil Gorsuch will be alternately grilled and celebrated by members of the Senate Judiciary Committee in what has become really the only must see TV event in the life of the high court. Later on in the show, we're going to Talk to longtime D.C. journalist and observer Tom Rosenstiel about his brand new novel that is, weirdly enough, set around a really controversial Supreme Court confirmation hearing. But first, we want to turn to the Senate, where Democrats are trying to figure out how much energy they're going to expend on blocking a Neil Gorsuch nomination, whether it's worth fighting really hard over a nominee that maybe isn't all that different from Antonin Scalia. Sheldon Whitehouse sits on the Senate Judiciary Committee. He is the junior senator from Rhode Island. He served as Rhode Island's U.S. attorney under Bill Clinton and was Attorney General of that state. It is a tremendous honor to have you on the show, Senator Whitehouse. Welcome to Amicus.

[Senator Sheldon Whitehouse]

Thank you. It is my honor to be on your show.

[Dahlia Lithwick]

So I want to ask you, just as a framing question, and maybe this is my journalistic angst showing, but we are dealing every day with four constitutional emergencies. Right. Likened to drinking from a fire hose. And so you're right at the epicenter, it seems to me, of everything, the wiretapping claims and the corruption claims and the investigation into Russia involvement. Is Neil Gorsuch even In the top 20 things Americans should be focusing on right now?

[Senator Sheldon Whitehouse]

Yeah, I think he absolutely should be because of the track record that we have when five Republican appointees get a Supreme Court majority. And what we've seen is really significant torquing of the economic system, of the judicial system, and of the political system in favor of really big special interests. And Americans have a lot at stake in having a court that goes back to being a court again and doesn't turn itself into a delivery system for big special interests.

[Dahlia Lithwick]

So before we even get to the merit Senator, I have to ask you, how do we even feel? Okay, about walking into that confirmation hearing next week? Isn't it ultimately just acceding to and legitimizing GOP obstruction? That was more than just obstruction. It was in deep, deep ways transformed a constitutional proceeding into a power play. And is even showing up next week a form of kind of capitulation, a way of saying, okay, you worked us over, but we're going to be good soldiers. Help my listeners understand how we can be fighting this existential fight when Merrick Garland's not even at the table.

[Senator Sheldon Whitehouse]

Yeah, it's a good question. I don't think not showing up helps. You have to sort of look for where your advantages and your disadvantages are. Unfortunately, one of our disadvantages is that the Republicans control the Senate. They controlled it when Merrick Garland came up so they could deny him a hearing. And they control it with Gorsuch coming up so they can grant him a hearing. And ultimately, if they want to, they can break the cloture rule with the so called nuclear option and jam him through onto the court with a simple majority of votes. So we're forced at this point into playing by the rules that we've been given. And I think the important thing for us to do is to make a really strong case to the American public in the hearings about what has gone wrong with the court and why and to do our very best to, if the Democrats feel that way, to try to prevent the Republicans from getting to 60 votes. If Gorsuch can convince people that he's going to be a different kind of Republican appointee, then, you know, I'm willing to listen. But the track record, as I pointed out, is a, is a bad one. And we could very well end up where we're trying to hold R60 and prevent Mitch from getting to the nuclear option, from getting 50 votes for that.

[Dahlia Lithwick]

So I guess what I'm thinking about is how do we, what's been totally disaggregated, right? A conversation about whether it's even appropriate for this hearing to happen. And Gorsuch on the merits, and I think I'm hearing you say there's a way to tag those two together, right? To talk about the legitimacy of this and also to talk about the merits. Is that where you're headed?

[Senator Sheldon Whitehouse]

Yeah, I think so. I mean, the method that Majority Leader McConnell used of denying a supremely qualified candidate even the courtesy of a hearing has significance and meaning because of what his intention was in doing that. It wasn't about Merrick Garland. He couldn't have cared less about Merrick Garland. It was about trying to get that fifth seat back so they could resume the five to four Republican rampage that served so well, the big special interests that are spending tens of millions of dollars to keep Mitch McConnell as majority leader by pouring just immense money into Republican races. So there is a connection here between the control of the court and the special interests that reaches out and touches the method that Mitch used. It reaches out and touches the future of the court. It reaches out and touches the past. And we have to, I think, tell that story. And if we do, then we have the chance to correct what the real problem is, what the heart of the problem is, and not get too distracted by the method with which McConnell defended the heart of the problem.

[Dahlia Lithwick]

So, Senator Whitehouse, am I right to say that you're trying to draw a straight line? I know you've thought about Citizens United and corruption and big money and dark money as much as anybody, and you're trying to draw a line between those conversations about disparate influence by big money and corruption, tying that to the kind of 5, 4 Citizens United bloc, tying that to the conversation both about the McConnell obstruction and to Gorsuch. Is there also a filament of this that is tying that whole big money, corruption, drain the swamp conversation to Donald Trump himself?

[Senator Sheldon Whitehouse]

I think it's a little hard to establish that. To me, the thing that is the huge flash. To me, the thing that is the huge flashing billboard right front and center is the past record of the court. With a 5 to 4 Republican majority election law, they were 6 to 0 favoring Republican interests against Democratic interests at the polls. In cases where it was obvious that they were favoring Republican interests at the polls when they made the decision. In cases that pit corporations, particularly really big corporations, against human beings, it is 17 to 0 in favor of corporations in those five to four decisions, whether you're a consumer, whether you're an employee who's been discriminated against, or whether you're a union member across the board. They have come down unanimously in these five to four decisions every single time, six to zero in elections, 17 to zero in conflicts between corporations and humans on the side of the Republicans and the big corporations. And when you look at the way big corporations fund the Republican Party, that makes a kind of sordid triangle of influence.

[Dahlia Lithwick]

And I think it's probably fair to say we don't know too, too much from Gorsuch, at least from his record that I've seen about where to locate him on the Citizens United question.

[Senator Sheldon Whitehouse]

Oh, I think it's pretty clear. He wrote an opinion in the Hickenlooper case in the 10th Circuit, where I'm going to get lawyeres now. But he basically said that strict scrutiny was likely required for any law that tried to impede the fundamental right to give money to politicians. So strict scrutiny is, as some people have said, strict in theory, fatal in fact. And it signals, I think, pretty strongly that when it comes down to the interest of money trying to apply influence to elections and the defense of honest elections against that influence, he's going to come down on the side of the influencers.

[Dahlia Lithwick]

And I guess the one thing we can stipulate, you and I, is that one of the most universally hated decisions to come out of the Supreme Court was Citizens United. Right? I mean, this crossed ideology and political partisan lines. I mean, I think, yeah, I think.

[Senator Sheldon Whitehouse]

Like 85% of Americans think it's a horrible decision. And it's spattered onto the reputation of the court in such a way that by nine to one, Americans think that a corporation is likely to get a fairer shake from the Supreme Court over a human being rather than vice versa. That's not a good place for the Supreme Court to be.

[Dahlia Lithwick]

So, Senator, let's go back to 1971 and the so called Powell memo. And this is written before Lewis Powell is on the Supreme Court. He's worked at Philip Morris, he's a successful corporate lawyer, and he more or less writes what becomes the blueprint for corporate takeover of the judicial system. And it becomes kind of the scaffolding under which the American conservative legal movement is born and spawns think tanks, and spawns the Heritage foundation and spawns American Legislative Exchange Council, alec. This is all a plan and Lewis Powell dreamed it up one night. Is it your contention that the 5, 4 Roberts Court that you're describing, that is at the heart of Citizens United, it's at the heart of McCutcheon, the heart of Hobby Lobby, is just the full flowering of that Powell memo and that whatever this court is doing right now, it looks a lot less like doing justice and a lot more doing favors for big business?

[Senator Sheldon Whitehouse]

Absolutely. I think that it has been the stated intention of the Republican Party for decades to accomplish that. And it goes back to the comment in the Powell memo that an activist court could be the strongest tool for the corporate community. And it's not just me who's noticing this. All of the three major court watchers have observed the Same thing, Jeffrey Toobin saying that Chief Justice Roberts has served the interests and reflected the values of the contemporary Republican Party. Norm Ornstein talking about the new reality of today's Supreme Court, that it's polarized along partisan lines in a fashion we have never seen. And Linda Greenhouse, after much, you know, concern and you know, she agonized about this and finally said, I'm finding it impossible to avoid the conclusion that the Republican appointed majority is committed to harnessing the Supreme Court to an ideological agenda.

[Dahlia Lithwick]

So let me ask you this question which plagues me as I prepare to think about these hearings. What has been not a useful framing, in my view, is this language of Judge X is out of the mainstream. There is this mainstream and, you know, whether it's Elena Kagan on the one side or whether it's John Roberts on the other side, there seems to be a presumption there that we all agree what the judicial mainstream is.

[Senator Sheldon Whitehouse]

Yeah, everybody brings their own mainstream to the debate.

[Dahlia Lithwick]

There ain't no mainstream. If there ever was, you know, it's gone. And so I'm trying to think about how this language of what is the infirmity that in your view, Judge Gorsuch, who, you know, lots of people are going to get up and say, he was the best boss ever. I clerked for him. He's a good man, he loves his kids. How do you respond to this discourse of what is the mainstream? There are no goalposts here. What are we really talking about?

[Senator Sheldon Whitehouse]

I think we're engaged right now in this country in an epic battle between special interests which have, to an unprecedented degree since before Teddy Roosevelt captured the institutions of government and frustrated the American public, which to a significant degree is taking out their frustration on the host, the government, rather than the virus, the corporate influence, and that this has actually infected the Supreme Court to the point where you get these five to four decisions that make what would have seemed other courts to be extraordinary calls in favor of the big special interests. And the question which side of that fight he's going to be on is terribly important not only to individuals who are usually the losers when the special interests prevail, but also to structuralists and to lawyers who think that the court should actually be a neutral, independent and dispassionate body rather than something where you can go in and based on who you are, you can predict whether you're going to win or not one of these five to four decisions that just can't be right.

[Dahlia Lithwick]

Do you worry about the destabilizing of the very norms you're talking about the idea that the court is actually meant to be an institution that transcends politics, and that sort of the legal architecture that we rely on isn't a merely political body. It feels as though, in one way or another, all we do now is say, signal that, oh, let's just be honest, America. This is about power, and whoever's in charge makes up the rules. And we all need to just recognize that whatever magical thinking we have around legal institutions was always just that, magical thinking.

[Senator Sheldon Whitehouse]

Yeah, well, it's magical thinking that goes all the way back to the Founding Fathers. And it's magical thinking that generations of Americans fought, bled and died to protect. And for this generation to blow it, I think would be a really significant disgrace in history's judgment. And, yeah, so there really is a peril when people start to question whether the norms are real or not, say that the chalk lines on the side of the field don't count any longer, discredit the referee when he blows the whistle or drown out the whistle, because now you're not playing under democratic rules any longer. You're just playing under rules of power and thuggery. And there are too many things that are a sacrifice to that game, like truth and people who don't have power but are decent people and the wonderful joy and luxury of living in an honest government. I grew up in the foreign Service. I've lived in a lot of places where people didn't have that. And we're lucky, and we put this at risk at our peril.

[Dahlia Lithwick]

I want to give you a chance to, before I let you go, to answer the question that has also been, I think, weighing heavily on me as I go into these hearings, and that is, does it matter that Donald Trump made this pick? Should we be thinking of this confirmation hearing and this seat in a complete political vacuum with the notion that we're going to respect these pristine processes around the court? Or does it matter that a president who is just so enmeshed in so many constitutional controversies is the one that picked him? Is it unfair to Neil Gorsuch to say you are going to have to answer for this president's lawlessness in order to go forward with these hearings?

[Senator Sheldon Whitehouse]

I think with respect to this president, the new question is, how do you feel about the institutions of government? Are you willing to stand up for a free press? Are you willing to stand up for an independent judiciary? Are you willing to enforce the norms of our democracy against this new pressure from this particular chief executive? I do not think he should be held responsible for the sin of being appointed by Donald Trump. Because frankly, if you imagine that Trump barely even knows that he appointed this guy. He gets up in the morning, he tweets a bunch, he watches the news to see what he is doing on the news. Bannon comes in and gets him excited with some crazy stuff. Priebus gives him things to sign and he signs with a big flourish. They take him places and he kind of, you know, lives in the Trump show for the day. And in the meantime, Vice President Pence and the Koch brothers operation are all carefully just laying the groundwork for all of the substance that goes into the running of the government. If he isn't really even very attentive to this, it doesn't make Gorsuch any better or worse of a candidate. Gorsuch has to be measured first on his own merits and second, because we're in this big fight on the likelihood that he will simply saddle up with that. The four that remain of the gang of five and off they'll ride on the special interest rampage they've been on. Those, to me, are the big questions.

[Dahlia Lithwick]

Senator, I want to thank you so very much for your time today. Really, it was a pleasure to have you on the show.

[Tom Rosenstiel]

Thank you.

[Senator Sheldon Whitehouse]

I enjoyed it. Thanks so much for having me on.

[Dahlia Lithwick]

And now for something completely and weirdly different. We talk an awful lot on this show about law and policy, the Constitution, consequential footnotes of various varieties, but we never really talk about literature. And so we're going to spend a little time this week talking to Tom Rosenstiel. He's a veteran observer of the Washington D.C. political seen. He's a former correspondent for the LA Times, for Newsweek. He's founder of the Pew Research Center's Project for Excellence in Journalism. And he's got a brand new book, a first novel, and it's a freakishly well timed first novel about the seamy underbelly of the Supreme Court confirmation process. It is called Shining City. Tom, it is a thrill to have you here. Welcome to Amicus.

[Tom Rosenstiel]

It's great to be here.

[Dahlia Lithwick]

So I want to start by talking. Well, I think I just want to start by asking you, Shining City new novel just come out. What ever possessed you to write about confirmations?

[Tom Rosenstiel]

Well, two things. One is so much of it is cynical and a kind of kabuki theater. And I thought it was a great way of capturing kind of the inner hidden Washington. And also I had this idea that the hero should be the kind of person who everybody outside of Washington thinks is immoral. Or amoral. So the hero in this book and his partner are fixers who are hired by the President to vet and then get confirmed an iconoclastic court nominee. And they're actually pretty idealistic people. And in my experience in Washington, consultants and people who are on the inside like this are often the truth tellers. They're often the people who say to the people who hire them, that's bogus, that's bs. You can't do that, you know, or this is going to go down. Even though to the outside world, you know, a fixer is sort of this person who makes problems go away.

[Dahlia Lithwick]

So that's right. That's one of the central paradoxes is that these people who everybody despises because they just will, you know, guns for hire, they'll do anything for money. And yet they seem to be the only ones who have kind of throughout the book this moral compass that says, am I doing the right thing? Am I doing the right thing? Everybody else is just falling in line, right?

[Tom Rosenstiel]

Yeah. And it's often the case. I mean, these characters are fictionalized, but there are people who have these jobs in Washington and they're usually brought in when things are really bad or the stakes are really high. They clean up other people's messes. And these guys in the book, their name is Peter Raina, who's a former military investigator and he's a Republican. And his partner is a woman named Randy Brooks. And she's very liberal and she's a lawyer. And they're usually brought in when things are really bad and they've come to over the years to realize you can't escape reality. If things are really bad, they're really bad. And perception is not reality, facts are reality. And they're constantly having to tell clients these things which the clients don't want to believe.

[Dahlia Lithwick]

So one of the things that I guess we should just. I don't think that it's a huge spoiler to say that kind of pitted against the day to day drama of a confirmation process. We also have a serial murder running around your novel, which is the one thing I think that makes it not entirely true to my experience of confirmations thus far. But I'm just wondering, notwithstanding the serial killer, did you know when you were starting to write this book what a strange world we were going to enter between Justice Scalia's death and then the whole dust up over Merrick Garland and now the kind of denouement which is the non story of the Neil Gorsuch nomination. But did you know going into this, that we were about to find ourselves in the single strangest confirmation season that I can remember. Certainly, I would say, including Bork, but certainly a very, very weird conversation about confirmations.

[Tom Rosenstiel]

No. The blunt answer is no, of course not. Because when you're writing a novel, you know, that's a slow process. The book was completed two years ago. It was in final copy edit when Judge Scalia died. And, you know, it was eerie because Scalia died on a Sunday and the justice in the novel dies on a Sunday. And everything starts to spin. Even before the end of the day was when Mitch McConnell and Ted Cruz said, we're not going to even hold hearings on whoever the nominee is. And in the book, the president is so nervous about what's going to happen that the first night before the but that same Sunday night, he's called in this fixer and said, I'm going to need you to, even though you're a Republican, I'm going to need you to try and vet my nominee. In the story. In the novel, the President, whose name is Jim Nash, wants to pick an iconoclastic nominee. He wants to pick a moderate, someone who is actually quite conservative on some issues and quite liberal on others and is very blunt. And the president believes, having read Federalist 78 by Hamilton, that this is the kind of justice that the founders had in mind. Someone who is not close to either political party, not close to faction, and in an idealized world, would actually get an overwhelming majority of Senate votes. And in modern Washington, sort of the reverse is true. By picking the kind of justice who the founders had in mind, the judge has actually weak support on all sides. The Republicans would rather not have anyone that the President wants, and liberals are disappointed that he's not a staunch liberal. So the president seeks out this fixer who does bipartisan work precisely because his own people are not enthusiastic about this nominee. And you know, I want. This is what you do in fiction. You try and think of a situation that is going to be challenging to real life and then say, well, what would happen? How does this play out? What are all the forces that are going to act on these characters in this dilemma?

[Dahlia Lithwick]

So I want to go back to. I imagine a lot of folks who've been listening to the show for a long time are like, wait, wait, there's a third way. There's an intermediate path between originalism and strict construction on the one hand, and whatever the progressive living constitutionalism is on the other. And that's what you've tried to posit, right? That there's this hybrid pragmatic theory of constitutional essentialist, constitutional interpretation, something that is right down the middle. Where does this come from?

[Tom Rosenstiel]

So, well, I'm not a lawyer, I'm a journalist, but I, you know, I covered a lot of these things over the years and watched these things that covered the Senate and the House and the judge, whose name is Roland Madison. In the story, he believes that the Constitution and the Bill of Rights were a political document and very much a consensus document. It's what the founders could get passed, could get past the states and get past the Constitutional Convention. And he said rather than some kind of biblical text, it's just what people at that time agreed to. And so his theory is essentialism. Now, I made this up, but it strikes me that it's absolute common sense. He also thinks that original intent is sort of an absurd notion. It's intellectually dishonest. He's very blunt about that. And he says, how could there be original intent when you're creating a document that you're trying to get people to vote on, to pass, it's an ultimate compromise document. There is the original intent is simply to get a government created. And to think that it's the end all and be all is silly. Well, that's a very challenging concept to conservatives, of course, right in their face. And yet he also thinks that there's a number of things that liberals have sanctified which are equally silly. You know, and the president, I'm imagining that the President thinks, well, gee, if we have a guy who's this original a thinker, maybe it will cause the other justices in the conference to think a little bit differently, to sort of be almost shamed into being so political. This guy is so independent, he'll be like a new agent, a bit of sand who grates and makes everybody else think differently. His own people, the President's own people, think this is ridiculous, you're fantasizing this. But of course that's what you get to do in fiction. So I got to make it up and the President gets to make it up.

[Dahlia Lithwick]

Now I have to ask you, because you said so much of this you'd written before we even had Merrick Garland in the ether to talk about. But boy, it feels like it maps so elegantly onto your narrative that you just described, which is a Democratic president with the option of picking a bomb throwing liberal, says no, disappoints the base and possibly the party and even Democrats in the Senate and pick someone moderate. It sounds a lot like what happened with the Merrick Garland nomination last year, right?

[Tom Rosenstiel]

Yeah, in a way. I mean, certainly with the options that President Obama had, he was picking the, you know, the pragmatic moderate. What's different is Merrick Garland was a person who, you know, worked in Washington, was a creature of the city and a familiar figure to a lot of people in the Senate. This character is an iconoclast who lives in the woods in California and is. Has written widely about everything from child rearing to science and, you know, is really a public intellectual who's got a long paper trail that's dangerous. I think Merrick Garland, it's fair to say, was much more careful and probably had, I mean, many people think, always imagined he'd be on the Supreme Court. This, in my story, he's more of a prodigy. Somebody who was such a legal, brilliant legal mind that everyone was saying, well, this is the kind of person who should be on the Supreme Court. But he didn't fit any mold. That's a fantasy, right? I mean, you know, we picked the nine smartest people, nine smartest judges in the country to be on the court. It's not really the way it works, but why not?

[Dahlia Lithwick]

That leads me to another thing that was kind of breathtaking about your imaginary judicial nominee, and that is, oh, my God, he's had bench experience. He has sat in as a judge over murder trials. He has presided over trials. He has actually watched the sausage being made. That, I'm guessing, is part of your notion of what is missing in the conversation around who is a viable Supreme Court nominee. It's not just that he lives in the woods and he runs and writes strange books and gives weird stuff speeches. It's that, oh, my God, he was actually a trial court judge.

[Tom Rosenstiel]

And he did that purposely. He had actually in the story, he, you know, he was the Stanford Law School dean and knew he was headed for bigger things when he decided to leave the academy, but wanted to actually have a bench trial experience. And in the story, of course, that comes back to haunt him. But, you know, that's something that in the history of the court, we've had people who've said, you know, here's the problem with the Supreme Court. It sits above in the attic and has never really watched how things happen. And it's shaped this judge's, Roland Madison's thinking that he actually spent a couple of years watching that sausage being made and has a very different view of the judicial system and the judicial process and the justice system as a result. You know, he was a scholar and he has found this experience to be life changing, that he actually sat on mundane trials and dangerous trials and murder trials. And of course, in the story, one of those trials comes back to life and propels the story.

[Dahlia Lithwick]

But it also, I think, importantly, gives him a real sense of what it's really like to be a public defender, what it's really like to be a state prosecutor. And I think that at least I saw some of what he brings to the bench is that realism that tempers some of the, you know, both the sort of lofty academic thinking he had done prior, but also just the sort of lofty constitutional ideas that are changed, I think, profoundly by the fact that he now sees what lawyers do all day.

[Tom Rosenstiel]

Yeah, I think it's one of the things that makes him more moderate. He's kind of sadness about him. He's. He thinks that the law is something that touches everybody's life in an everyday way and that governs him. I think the President thinks that's also going to affect the other justices, at least in his idealized mind. And, you know, I mean, that's another one of these things that you. What if in fiction you say, what if we had a justice who had had this experience not early in his career, but at a point where he was shocked by what he saw because it was so different than the theoretical impression that he had of the law as a scholar.

[Dahlia Lithwick]

Tom, I want you to talk a little bit about. I think that it's hard to read this novel as anything other than a love song to moderation in a polarized world. And that's not wrong, is it? I mean, that's. It seems that that's an animating. So I want to give you a chance to talk a little. I mean, I think that for me, you know, there's this back and forth at the very end of the book where. But I think it threads its way throughout the narrative that, you know, what should we be doing here? And we have the vice President saying, look, you know, this is an arms race. You know, you put up your guy that's as far to the left as their guy to the right. That's how we win this thing. And, you know, characters grappling throughout with the impulse to keep, you know, fighting, fighting, polarizing, polarizing. And then this judge at the middle, and I think, as you say, these two characters at the middle who are very aware at all sorts of different levels, that that is what's breaking Washington. I'm guessing that is somewhat rooted in your experience as a journalist over the last little while.

[Tom Rosenstiel]

Yeah, absolutely.

[Dahlia Lithwick]

You sound so sweet.

[Tom Rosenstiel]

One of the things that you try and do if you are a good journalist is have empathy for the people you're covering on all sides and try and make, try and allow them to make their best case and try and understand what they're talking about. And so, yeah, I mean, I think, you know, it's one of the things that sort of psychologically roots journalists in a different place than activists. And the hero in this story, Peter Reyna, he was a soldier. He was trained at West Point, and he rose through the ranks and was having a great military career until he encountered a scandal that he wasn't sort of willing to sweep under the rug. And he was rescued by a senator who is someone who's yearning for that moderate center. There were people, you know, through our history and, and certainly during the Watergate era who talked openly about the importance of that center and holding the center together and creating a political center in the story. And to some extent in real life, there are people who yearn for that, but they have to do that almost in a hidden way. So there is a covert center in Washington, but those people do not talk about it. They never proselytize about it in front of the cameras. It would make it very difficult to get reelected. And so they operate this way behind the scenes. And Raine and his partner Randy BrooksShe's a liberal, he's a Republican. They actually are sought out occasionally by people because when these deals need to be made and when these bridges need to be created, they have alliances on both sides. And so they're useful. They're controversial, but they're useful people to have and work with when you're trying to do these rare attempts at compromise.

[Dahlia Lithwick]

And it's probably worth flagging also that at least it seems that the dividing line in government in your novel is it's the old guys, right? It's the guys who've been around for decades who are more apt to have back channel both relationships and the ability to get on the horn with someone and make something happen. It seems as though some of the younger politicians, much like the younger senators that we're seeing now, are much less inclined to be that guy. Right?

[Tom Rosenstiel]

Yeah, I think that's largely true, but geography plays a role in it too. There's a senator who's not that old, but who's from Michigan and a Republican who can get elected in a Rust Belt state that normally elects Democrats. And he's one of those people and he has no greater ambition than to serve Michigan in the Senate, which also makes him useful and somebody who wants to do these things. The president is caught and is sympathetic to this because he actually is very charismatic. People like him. He keeps getting elected because people like him better than they like either of the parties. So there's actually, you know, there is sort of this narrow lane where someone, because of their force of personality can walk that line. It's usually a senator. It's hard to do that in the House. Gerrymandering has made that more difficult. And there are a few people who, who can do it, but you would need to be in the right state, a Republican from California or, you know, a Democrat from a. Who could still get elected in a southern state. These are the people who, if they were popular enough, might be able to sort of wedge that difference.

[Dahlia Lithwick]

So I want to. My last question, I think I want to frame in light of the fact that we are right at the eve of another confirmation here hearing, and I think one of the things you've done so adeptly in your novel is describe the machinery of the confirmation process and how it gears up around each hearing. You've got your groups, they've got their talking points, they've got their ads, they've got their accusations, they've got their language, strict constructionist humility. You know, hippie liberal, like it almost doesn't matter who the judge is, they just get chewed up by the machinery that you describe so well. It's all so pre prescribed. It almost feels like, oh, we're watching this movie again. And I guess what I want to ask you is, my sense is that that feeling that you capture that this whole machinery is designed to do on each side what they need to do regardless of outcome, that it almost moves out of time. I mean, you almost have a feeling, and I'm thinking now about the Gorsuch hearing, that this machinery is kind of clunking away on each side. You know, with its ads and its talking points and its language about strict construction. It's almost happening outside of the context in history of this incredibly bizarre Trump administration that we find ourselves in. It's really a strange and jarring moment. And I think what I'm trying to ask is, is that quite deliberate? I mean, I know again, you didn't write this knowing what was coming, but the ways in which this is. You used the word kabuki. This is all theater that is so dissociated from life as it's lived. And then when life gets super weird, it's still playing out in exactly the same tones.

[Tom Rosenstiel]

Yeah. That's one of the things that I think is so interesting about this. This is that we pick justices for the court and they have such a material impact on how our lives are going to be lived for the next generation. And yet the process that they have to go through, this sort of funhouse tunnel that they go through to be confirmed, is bizarre even to them. They are told, you know, don't answer these questions substantively. This is not a national course on jurisprudence. They are taught how to be evasive and even in the context of Trump. Now, Gorsuch is somebody who was probably on people's lists before. That whole process is going to go on somewhat independent of the Trump phenomenon. And one thing that was interesting, after I finished the book, I read Advise and Consent, which was written in 1959 and was probably the book that kicked off a whole golden era of political fiction, political thrillers. In the 1960s, there was two or three political thrillers on the bestseller list almost every year in the whole decade until 1968. In advising consent, there are no interest groups, and it's about a nomination fight. There are no interest groups, there are no staffers, and the words Republican and Democrat never appear in the book. And the book is 600 pages long.

[Dahlia Lithwick]

Holy cow.

[Tom Rosenstiel]

So we've arrived at a point Now, a generation, 50 something years later, where those staffers and interest groups and money propel much of the action. And you have a group of very talented and originally idealistic people who came to Washington to try and make the country better. And many of them feel trapped in this system. And that's, you know, that's one of the sort of sub themes for me of the book is how could so many talented people come to the Capitol and find themselves following actions that don't work? You know, where they constantly are doing the wrong thing for what they think are the right reasons.

[Dahlia Lithwick]

And so if you could change just one thing about the confirmation we are about to introduce, endure in the coming weeks, it would be What? Unplug the TVs, get rid of the staffers. Fire the groups. Pick a moderate. I'm only letting you pick one.

[Tom Rosenstiel]

Pick a moderate.

[Dahlia Lithwick]

Pick a moderate.

[Tom Rosenstiel]

Pick someone who would actually sort of cause the other justices to say, wait a second, I'm supposed to be independent.

[Dahlia Lithwick]

Tom Rosenstiel is a very veteran journalist, a Washington, D.C. observer. He's a correspondent for the LA Times, Newsweek, and his new novel is called Shining City. Tom, thank you so very much for joining us today on Amicus.

[Tom Rosenstiel]

It was a pleasure, Dalia. Thank you.

[Dahlia Lithwick]

And that is going to do it for today's edition of Amicus. We'd love to hear your thoughts. Our email is is amicuslate.com we're on [e-mail] amicus podcast. Leave us a comment there. Or if you're feeling generous, you can leave one on our page in the iTunes store. It's a good way to let other folks know about the show. We love your feedback. We so appreciate your support. Remember, if you've missed any of our recent episodes, you can find all of them on our show page, thatslate.com and a big thank you goes out as ever to the Virginia foundation for the Humanities, where our show is taped. Amicus is produced by Tony Field. Camille Mott is our intern. Steve Lichti is our executive producer. And Andy Bowers is chief content officer of the Panoply Network. Amicus is part of the Panoply Network. Check out our whole roster of podcasts at Panoply fm. I'm Dalia Liswick. We will be back with you in a couple of weeks on the other side of the Gorsa Cherrings with another addition of Amicus.