(audience applause)

- Well thank you so much, Rob.

Thank you for the enormous
honor of being able

to visit with you all today.

And to talk about a
subject of mutual interest.

I have to begin with

a disclaimer.

I am not gonna talk about HB2.

(audience laughing)

- [Voiceover] Not till the
question section at least.

- Except for one thing.

It's too compelling to ignore.

So I am here in
Raleigh, of course,

here at the NC Policy
Watch, and actually here

to talk to a group I suspect
needs no introduction to

controversies, particularly
constitutional controversies

in the state of North Carolina.

I will have to tell you
that Amendment 1, HB2

and the Senate obstruction of
President Obama's nomination

to the Supreme Court, all
have one thing in common,

they will all fail.
- [Voiceover] Yay!

(light applause)

- And they'll all fail
for similar reasons.

To begin with, they're on
the wrong side of history.

Beyond that, the American
people don't support them.

And even beyond that,
they're all grounded in

very base, hoarse, impulses,
rather than the things

that define the best of us.

The support that you'll
hear and know about

when it comes to the
Senate's obstruction of

Merrick Garland's nomination
to the Supreme Court,

is largely driven

by partisanship,

and lacks support in history,

The Constitution's
text and logic,

and that's not a good start.

I hope it will be of
some interest to you

to talk a little bit
about the sort of

basic process for Supreme
Court nominations,

and some of the basic issues
relating to that process.

And then of course we can
talk further about it,

if you have questions
or comments.

But to begin with,

we all know

the tiny little bit the
Unites States Constitution

has to say about this.

The Constitution says that
the president has the power,

the authority to appoint,

with the advice,
consent of the Senate,

justices to the United
States Supreme Court.

And so, President Obama
obviously has done his part,

he's nominated somebody
to fill the vacancy

left by Justice Scalia.

And I should say, just
somewhat parenthetically,

but because I'm a law professor,

the parenthetically
is a little long.

(audience laughing)

I come to this with
slightly mixed feelings.

Justice Scalia was actually my

constitutional law professor.

And I have known
him, or had known him

for

over three decades.

And actually I had
helped schedule

one of his last public
appearances which happened

at the Union League
in Philadelphia,

in which we had the
opportunity to talk

briefly, and he was
always, to his credit,

very cordial to
me, very tolerant.

Knowing that I didn't
always agree with him.

In fact, the very last
thing he said to me was,

"Professor Gerhardt,
how am I doing?"

He would always say that
with a twinkle in his eye

and a smile on his face.

And I said "Justice Scalia,
we just don't have enough time

"to talk about that."

(audience laughing)

And he, of course, laughed.

And so,

I don't talk about any of
this with any great deal of

personal relish.

The circumstances that often
give rise to vacancies,

are, in a very real
sense, tragic ones,

unfortunate ones, but,
inevitable ones, often times.

And it so happens that
when we talk about

Justice Scalia's vacancy,

it's important, I think,
to define at the outset,

even before we talk
about the actual process,

the context in which it arose.

So justice Scalia died,
as Rob reminded us,

February 13th.

And what is, I think,
particularly significant

about that is more
than one thing.

Nobody saw this coming.

And I think you cannot
forget that fact.

I happened to be at a
conference in Atlanta

on the Thursday and
Friday preceding,

and one of the last
panels at that conference

involved three of
the nation's leading

journalists covering the
United States Supreme Court,

including Dahlia
Lithwick from Slate,

Bob Barnes from the
Washington Post,

and Adam Liptack from
the New York Times.

And as Adam would tell you
and I was there to see this

and know it's true,

on this last panel
somebody said,

will the Supreme
Court be an issue

in this upcoming election?

And Adam, fast out of the
box said "There's no way

"it's gonna be an issue.

"Nobody is sick or dying,
we don't expect a vacancy.

"And people have
said for decades,

"in a lotta years
it's gonna be an issue

"in the campaigns and it
turned out never quite to be."

He said this on Friday.

Then on Saturday he was headed
from Atlanta to St Louis,

where he was

conducting a really
special class at

Washington University
in St Louis,

on the Supreme Court,
and so he was in class

all day on Saturday, and
had turned his phone off.

And,

so if you want to know why
the New York Times story

on Justice Scalia
doesn't show up until

four AM on Sunday morning,
it's because Adam didn't

turn his phone on
until about six PM.

And then he turned
his phone on and,

you know, excuse my French,
all hell breaks loose.

And he realizes,

he's got messages, his
phone's about to burst

and everything else,
and the entire world of

constitutional law changed.

And what you are
largely witnessing,

sort of to tell you one
of the takeaways on this,

is,

what happens when
your national leaders

decide to improvise.

And much of what you've
been watching over the

last several months, is a
number of senators and others

improvising in response
to this vacancy.

They didn't see it coming,
they didn't have exactly

a game plan or strategy in
place to deal with this,

and the same is true
for the other side.

And so a lot of what
we're seeing is literally

being made up on the spot.

If it seems not well
thought through,

it seems like people
haven't really sort of

considered this very
deeply or thoroughly,

it's because they haven't.

And so, really from the
very beginning we've seen

the parties, in a sense,
divide on this pretty quickly.

And one of the critical
reasons for that is because of

the part of the Constitution
I just told you.

The president nominates
Supreme Court Justices,

but with the advice and
consent of the Senate.

And the Senate, with 55 seats,
controlled by Republicans,

is more than aware

that this is going to be a
transformative appointment

to the United States
Supreme Court.

That's no secret.

Everybody understands
that whoever replaces

Justice Scalia is gonna
make a tremendous difference

in the future of
constitutional law.

And just to put it
in some perspective,

I mentioned, Justice
Scalia being one of my

constitutional law professors,
and up until the day he died

had literally shaped the
role of constitutional law

that I taught and lived in.

That we all sort of taught,
and I suppose and lived in.

And,

that court of which he
was a member had been

shaped by Republican
presidents, and had not

been dominated by
or had a majority of

Democratic appointees
for over four decades.

We have not lived in a time

when there was a majority
of democratic appointees

to the Supreme Court until,

when I was in law
school, and before.

That dates me to some extent.

But,

it's worth thinking
about what that means.

That, again, really
underscores the fact

that this is not just
your sort of everyday

appointment to
the Supreme Court,

as if there were any such thing,

now or forever in the future.

This is really just the
beginning of a holy war.

This is the beginning
of thermonuclear war.

This is an appointment

that each side understands,

almost everything they
stand for and care about

is at stake.

So if they fight over
it, it shouldn't be

the least bit surprising.

A process that puts
the president and
senators in control,

is necessarily a
political process.

So we shouldn't
be surprised that

partisanship and politics
are part of it as well.

That's the context.

At the same time, we need to
think about a second thing,

which is, OK, what else

do we know about this,

and is there anything, of
course, history could tell us?

This is where some of
the dialogue takes place.

There's a lot of talk about
what history has to teach us,

if anything, about this,

and I can only mention
a couple things here.

First is, I think,

while there's some
predisposition to

invest history with some
kind of sacred quality,

we shouldn't.

History doesn't bind us.

History doesn't tell
us what we should do.

History might be able to
tell us a little bit of

what we could've
done, or could do,

but it doesn't tell
us what we should do.

And as we look to the past,
we should keep that in mind.

And you can see some
of the improvisation

on the part of
Republican leaders,

in that the rationale for
the opposition has changed.

Initially it was grounded in,

the idea that we
don't do this in

presidential election years.

The biggest problem with that is

that's completely
counter-historical.

There's no history, at
all, to support that.

And I don't say that
as just a partisan.

I've worked in this
process for many decades.

Did have an opportunity to
write a book on the subject,

and more than just
that, have had a chance

to consult with
senators on all this.

And there's no

support for the idea that

during presidential
election years,

the Senate shuts
down for business.

That just doesn't happen.

And,

it is true

that in the modern era,
the Senate has slowed down

when it comes to lower
court nominations,

but for those of us who
care about distinctions,

slowing down for lower
court nominations

is not the same thing

as slowing down for
Supreme Court nominations.

And, in fact, over 20 presidents

have made successful
Supreme Court appointments

to the Supreme Court, during
presidential election years,

or even as lame ducks.

Now that's almost half.

I'm not good at math,
but it's almost half.

Which is, a fact.

So as we go through this,
if there's anything else

we can do, we can try and
keep everybody honest by

making sure that they get
their history correct.

When we do look at history,
we can see a couple things,

beyond what I've already said.

Over the last 100 years,

to the extent it is relevant,

the Senate has actually
taken action on

every single Supreme
Court nomination

with the exception of two.

And the only two
times it didn't,

were the two nominations
that were withdrawn.

President Reagan's nomination
of Douglas Ginsburg,

withdrawn within nine
days of that nomination,

and President George W Bush's

withdrawal of Harriet
Miers' nomination

which also was trying to break
that record of nine days.

And otherwise, every other
Supreme Court nomination

has actually had
Senate consideration.

A second thing, we even
have Senate consideration

of Supreme Court nominations
during the Civil War,

during World War I,
During World War II,

during the Great Depression.

So the fact that there
are important political

and other events has
not stopped the Senate

from at least holding hearings,

and giving consideration
to the particular merits

of a particular nomination.

That's the history.

Now when we move beyond that,
we can ask the question,

OK,

Does the Senate have
the power to do nothing?

This is a very interesting
question in the abstract.

As a practical matter,
it doesn't take much

for the Senate to actually
comply with it's oath.

And so,

there are times when
the Senate does act,

does give consideration,
and in fact,

may reject a nomination.

Or does act, does
give consideration,

and in fact, after floor
debate and whatever else,

may not take a vote.

That's happened a couple times.

More often it's actually
acted positively.

As Geoffrey Stone,
at the University of
Chicago's Law School

has pointed out,

when you consider the record on

how the nomination
of a well-qualified,

moderate nominee has
fared, in modern times,

they are confirmed
100% of the time.

That's the record.

And so,

it's fair to say
that to some extent,

the Republican leadership is
swimming upstream on this one,

when it comes to, at
least, historical trends

or historical patterns.

Other question about
history that comes up,

inevitably is, what's
the closest analogy.

Now this is always, this
is a tough thing to answer,

it's the kind of thing a
law professor would ask,

what's the closest analogy?

And the secret, that I can
tell you as a law professor,

maybe April would agree is
that there's no right answer.

But some answers are
more correct than others.

(audience laughing)

Now you can spend a lot of
time thinking about that.

And so,

my estimation

is that the closest analogy,

the only thing that
sort of seems to come,

I think, anything
remotely close,

arose when Andrew
Johnson was president.

Now many of us probably
don't remember that

'cause we weren't here.

If you were here then you
should be the one speaking.

And so, what happened when
Andrew Johnson was president?

Well, of course Andrew
Johnson was Abraham Lincoln's

second vice president,
a man that Lincoln said

after his inauguration,
"Keep that man away from me."

And so, Johnson
becomes president

because of the unfortunate
and tragic assassination

of President Lincoln.

When Johnson becomes president,

essentially nobody wants
him to be president.

And then he proceeded
to alienate everybody.

(audience laughing)

And so the Republican leadership
in the Senate and Congress

at that time responded
by passing a law.

And in fact, the seats in
the Supreme Court are created

by Congress through legislation.

So Congress passed a law
which prospectively abolished

the next two seats
on the Supreme Court

if their occupants died

during that time period.

So they didn't want Johnson
to make the appointment.

And in fact, there were
two people that did,

in fact, die, and their
seats were then abolished.

Johnson then is impeached and
barely escapes conviction.

He leaves the White House,
Ulysses Grant comes in,

and Congress recreates the two
seats, and Grant fills them.

That's the closest thing

to analogy.

Now if you want to
make an analogy between

Andrew Johnson and Barak
Obama, I would say good luck.

(audience laughing)

If you want to think
about the two people

that had the highest

number of votes publicly for
President of the United States,

the top two are Barak
Obama and Barak Obama.

Johnson got zero.

And then you can just
sort of go on from there.

And so, we can look at
some of the rationale,

and I want to pick that apart
and get to what I think is,

I guess what I'd call the
most credible rationale.

So one rationale we've
already heard which is,

OK, we should let the next
president of the United States

make the nomination.

And that's why we're doing this.

I think,

of course I have a lot
of problems with that,

one problem that I
have with that is,

I actually don't think the
people who say it believe it.

Because I think a
lot of people who say

that they don't want
the next president

to make the nomination
would actually be

perfectly happy voting
against the nominee

even once the next
president got elected.

For example, Pat Toomey
from Pennsylvania,

has said more than
once, we should let the

American people
make that choice.

Choose the president who's
gonna make the next appointment.

Well, when Pat Toomey
came into the Senate,

he then proceeded, less
than two years after

Barak Obama's first
election's presidency

to oppose Elena Kagan's
nomination to the Supreme Court.

Had nothing to do with the
American people's preferences.

So, so much for letting
the president, in a sense,

make that choice.

And I don't think Senator
Toomey believes that.

In fact, he's gone
on to say, no.

There's a second rationale.

The second rationale, and
this cuts closer to home,

is that the Senate needs
to take extra special care

because this is
Justice Scalia's seat.

And the court's
split four to four,

roughly down the middle,

again, my math is
always a little shaky.

And so,

because it's that
seat, we need to,

in a sense turn to the
American people again

to kind of have them

validate the principle.

Whatever principle it may be.

For example, if the American
people were to elect,

I'm gonna just take
a hypothetical,

Ted Cruz, then presumably
that nomination might look

a little bit like what
Justice Scalia did

and maybe Senator
Toomey would say,

OK, that person looks like...

I see some public
support for that.

And therefore I can go with it.

This is just a variation of
really of the first argument.

I'm not terribly moved
by this argument either.

Again, because the
linchpin of it is really

the ideology or
philosophy of the nominee.

It's not about what the American
people say or don't say.

Because the American
people could speak to this,

they could elect, oh,
let's say, Hillary Clinton,

President of the United States,

but my guess is, if Senator
Toomey's still in the Senate,

he's not gonna pay
attention to that,

he'll pay attention to
the fact that he just got

reelected to the
Senate, and say,

oh it's really the
Pennsylvania people,

that's who I'm gonna listen to.

So you'll notice the
ball keeps moving.

It's not fixed.

Which, by the way, if
this were a matter of

constitutional law,
should make us pause.

That's because this isn't
grounded in constitutional law,

it's grounded in
partisanship and politics.

When we strip everything
away, I think we can see,

a couple things.

I want to first
point to what I think

is part of what is going on,

and then I'll point to what
I think is the more credible

explanation for what's going on.

And I say this,

without as much trepidation
as I used to say it.

I should tell you, as preface,

that I grew up in Alabama.

And I grew up in the
1960s in Alabama.

And I grew up as a
Jew in 1960s Alabama.

There were four of us.

(audience laughing)

None of them were
living in Alabama, no.

(audience laughing)

And all I can say is, I think
I know racism when I see it.

And I think some of the
opposition is driven by

the basest, coarsest,

feelings that may exist.

It has to do with
the very simple fact

that a black man
occupies the White House.

When Mitch McConnell
says, no, no, no,

this president won't make it.

That's not a stand on principle,

that's a stand on racism.

And I've seen stands on
racism, George Wallace

was the governor when I grew up.

And I ran as far
away as I could.

All the way to
North Carolina, no.

(audience laughing)

And now look at it, yeah.

(audience laughing)

And so,

I don't think we
can ignore that,

and one reason I point that
out, I hate to tell you,

is because, with
the flip of a page,

racism is not gonna go away.

And I also hate to tell you,

with the flip of a
page, it doesn't mean

that a woman who gets
elected president

is gonna be any better off.

I don't know that I
need to tell you that.

But I think sometimes it
need to be expressed openly,

because I do think there is
such antipathy and hostility

to the progress of
women in society,

it seems to know no bounds.

But I believe, to some
extent, it is generational.

And I believe this
generation that is coming up,

is coming up in a
very different way.

Not to say it's
perfect by any means,

but I think that there are
hurdles to be gotten over,

hurdles yet to be dealt with,

that we can expect will arise.

And so the road, and nobody
knows this better than

Hillary Clinton, the road
ahead is not gonna be easy.

So where is the
principle in all of this?

Well the principle
in a sense is,

intertwined with some of this.

And it is of course,
the basic principle

that yes,

we who oppose

President Obama making any
nomination believe that the next

Supreme Court Justice
should look and have

exactly the same outlook
that Justice Scalia had.

The principle is a principle

of commitment to, for lack of
a better way of putting it,

to strict adherence
to original meaning,

strict adherence to texturalism,

strict adherence to those
things that presume to

the court had been adhered to

while Justice Scalia
was the pivotal vote.

So I have a couple
thoughts about that.

I'll concede for a moment
that that's a principle.

But, I also think
that that principle

tends to conflate
results with ideology.

It tends to only treat as
correct, those outcomes we like.

I can give you an example,
from Justice Scalia.

Now Justice Scalia
knew that he and I

would not always see eye
to eye, and I don't think

there was anybody more
than Justice Scalia

who really hated the
idea that through the

confirmation process
becoming politicized.

And,

but Justice Scalia who
adhered so strongly

to original meaning, only

twice in his almost 30
years on the Supreme Court,

voted to strike down laws for
violating equal protection,

only twice.

The first had to
do with laws that

are what we describe as
affirmative action measures.

Now you may say that maybe
that could be squared

with original meaning
in some sense.

Maybe, as he would say,
because there was a

general sort of hostility and
opposition to what we call

race based laws, race
based classifications.

Maybe, but it's the
second case that

kind of proves the point.

The second time he voted
to strike down a law

for violating equal protection
was Bush versus Gore.

And George W Bush,
I'm pretty sure,

doesn't fit into
that first category.

(audience laughing)

The law that was
struck down in Florida

had nothing to do with race.

It was what we
typically would call

a neutral classification
which typically would get

the lowest

level of scrutiny, or the
greatest degree of deference.

And so, even the most strict
adherent to original meaning

wasn't necessarily as
adherent as one might imagine

or want.

And so,

but, to come back to it,

the biggest problem
with, I think,

the principle that may be
driving or animating all this,

is I'm not entirely sure
how many people who actually

are opposing this really are
committed to that principle.

To put it another way,
they aren't saying so.

You don't find
Republican leaders until

somewhat more recently, and
somewhat haphazardly saying

oh there's also a
principle involved here.

Well, it wasn't
the initial stance.

The initial stance of
Mitch McConnell was,

within days of Justice
Scalia's death,

Mitch McConnell said,

oh, this president
isn't gonna fill it,

it's gonna be left to
the American people.

Nothing about
transformative appointments,

nothing about this
court being split,

nothing about principle at all.

And then when some members of
the Republican Caucus said,

well, what if in the
fall we get shellacked,

and we need to think
about whether or not the

Garland nomination
somehow is gonna be

more acceptable to
us than, let's say,

a different kind of
nomination, what about that?

And McConnell said no,

I said this president
isn't gonna make it.

Again, nothing about
principle, in any of that.

And so if you wanna
make it about principle,

my suggestion would be,
make it about principle.

Make it openly, and
expressly about a principle

of jurisprudence.

But the fact is,

that Supreme Court
confirmation process

is a very

tough place,

it's a very tough place

to make very neat and
careful distinctions

among people's outlooks based on

how you think they would vote.

The people that have run
into trouble in the process,

have not really run into trouble

because they had

I think, because of
ultimately problematic

ideologies, I think it's because

they ran into trouble for
a couple reasons, ethics

was one reason.

I think competency was another.

And then another, I think
is that they simply were,

to some extent,

way outside the mainstream
in terms of what was

acceptable

or public approved sort of

jurisprudence.

John Parker, as you may know,
nominee from North Carolina,

he was on the First Circuit,
rejected for the Supreme Court.

Parker was rejected
because he had views on,

not just segregation, but labor,

that were thought to be,

at least by the Senate at
that time, unacceptable.

And Judge Bork, who was an
imminently qualified nominee,

is the other kind
of poster child

that's oftentimes brought up,

but I'm actually of the view

that Judge Bork's biggest
problem was Judge Bork.

(audience laughing)

And I've said this, both when
I've worked in the Senate,

and other places, 'cause
when I worked in the Senate,

lots of people would
come up to me and say

well why can't we
make these hearings,

like the Bork hearings
and everything else?

And after I finish laughing,

I would say, well there
are a couple reasons.

The first is, that the
objective on the Senate side

if you're in the majority,
and you want somebody

confirmed, is not to make
it into a popular TV show.

You want it to be
the least watched,

most boring production you
could possibly imagine.

You may not quote
me on this, but,

I will say during the course of

one of the hearings
in which I worked,

somebody, one of the staffs
came to me and it was

in the heat of the moment,
they said "Oh good,

"Michael Jackson just died."

(audience laughing)

Why would they say that?

Because it took
the cameras away.

And that made it
even less volatile,

made it less prone to any
kind of public interest.

Lawyers will tell
you if you have,

and you're lucky if you're
never heard this before,

lawyers will tell you
if you have to testify

or anything else, what
you should be doing,

is you should be giving the
shortest succinct statement

you can in response
to a question.

I should say, the
shortest, honest, succinct

statement in response...

(audience laughing)

That is not what Bork did.

And what we would say
to any nominee today,

Republican or Democrat,
doesn't matter what party,

is shut up.

(audience laughing)

And so I often think of,

a friend of mine
from law school,

and I tell this to my
legislative process classes,

it's one of my favorite
moments in legislative process,

'cause it really
illustrates this point,

my best friend from
law school clerked for

somebody named Ruth
Bader Ginsburg.

And when she was nominated
to the Supreme Court,

she had asked my friend,
essentially to be her counsel.

And if you go back, and
you could see this on TV,

and there's a point in which,

then Chairman Biden
asked her a question.

As you could imagine,
Chairman Biden's question

goes on for quite a while.

And he goes on and
on for some time.

And then,

he stops, and he says to
her, do you have a response?

Anything you want to say?

And then she looks at him,

and then she leans
back, talks to my,

they whisper back and forth.

Then she leans forward
and goes, "No senator."

(audience laughing)

That is why she's sitting on

the Supreme Court of
the United States.

(audience laughing)

You know when to talk, and
you know when not to talk.

That is not the moment to
start going off on a tangent,

or anything else.

That is exactly
the moment you say,

no senator, I got
nothing to say.

And that's exactly
what, I think,

that is one of the lessons
from the Bork hearings.

The lesson isn't,
oh, let's make them

as dramatic as possible.

The lesson is let's
make them as boring

and non substantive as possible.

So,

if that's the case,

then it's really hard to imagine

you can turn a Supreme
Court confirmation hearing

into some kind of seminar

on how to interpret
the Constitution.

It's not gonna work.

And plus, people's votes
are probably largely

gonna track their political
partisanship anyway.

So when all is said and done,

it's a very hard thing
to point to to say

oh that's gonna vindicate
this outlook or that outlook.

The fact is we've had
somewhat conservative people

confirmed over the years,
somewhat liberal people

confirmed over the years,
and if you want to talk about

the two most vicious hearings

in the history of the
United States Supreme Court,

I think in some ways
Bork finishes third.

The two most vicious
Supreme Court hearings

in American history, involve,
first Louis Brandeis,

hearings that lasted over
six months and were infused

with antisemitism.

And, the hearings for
Thurgood Marshall.

And I would say, those two,

probably, are the two
most distinguished

lawyers and judicial
nominees in the 20th century.

And those hearings could
not have been uglier.

And at one point President
Wilson goes to Louis Brandeis

and says, "Look, you're
getting beat up in the Senate,

"do you want to come forward?"

And he goes, "No!"

Exactly the same as Justice
Ginsberg's response.

Which is, you know,
Brandeis understood that

there's nothing to
be gained really,

or you've gotta be really
careful about this,

but not much to be gained
by going into the lion's den

like that, and then

allowing yourself to
become a punching bag.

So I'm not convinced
the hearings

are gonna become an elevated

seminar on constitutional
law, anytime soon,

unless, as I often say,

the nominee really
likes his current job.

(audience laughing)

If that happens,

I mean if you really, really
love being on the DC Circuit,

go ahead, do it.

But you don't go in
there and open up,

and talk more than the senators,

unless you're prepared
to be rejected.

'Cause the more you say,
the more you get in trouble.

- [Voiceover] North Carolina
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