WEBVTT

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(audience applause)

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- Well thank you so much, Rob.

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Thank you for the enormous
honor of being able

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to visit with you all today.

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And to talk about a
subject of mutual interest.

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I have to begin with

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a disclaimer.

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I am not gonna talk about HB2.

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(audience laughing)

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

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- Except for one thing.

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It's too compelling to ignore.

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So I am here in
Raleigh, of course,

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here at the NC Policy
Watch, and actually here

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to talk to a group I suspect
needs no introduction to

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controversies, particularly
constitutional controversies

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in the state of North Carolina.

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I will have to tell you
that Amendment 1, HB2

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and the Senate obstruction of
President Obama's nomination

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

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they will all fail.
- [Voiceover] Yay!

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(light applause)

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- And they'll all fail
for similar reasons.

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

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

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And even beyond that,
they're all grounded in

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very base, hoarse, impulses,
rather than the things

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that define the best of us.

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The support that you'll
hear and know about

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when it comes to the
Senate's obstruction of

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Merrick Garland's nomination
to the Supreme Court,

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is largely driven

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by partisanship,

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and lacks support in history,

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The Constitution's
text and logic,

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and that's not a good start.

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I hope it will be of
some interest to you

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to talk a little bit
about the sort of

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basic process for Supreme
Court nominations,

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and some of the basic issues
relating to that process.

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And then of course we can
talk further about it,

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if you have questions
or comments.

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But to begin with,

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we all know

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the tiny little bit the
Unites States Constitution

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has to say about this.

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The Constitution says that
the president has the power,

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the authority to appoint,

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with the advice,
consent of the Senate,

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justices to the United
States Supreme Court.

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And so, President Obama
obviously has done his part,

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he's nominated somebody
to fill the vacancy

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left by Justice Scalia.

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And I should say, just
somewhat parenthetically,

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but because I'm a law professor,

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the parenthetically
is a little long.

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(audience laughing)

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I come to this with
slightly mixed feelings.

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Justice Scalia was actually my

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constitutional law professor.

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And I have known
him, or had known him

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for

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over three decades.

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And actually I had
helped schedule

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one of his last public
appearances which happened

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at the Union League
in Philadelphia,

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in which we had the
opportunity to talk

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briefly, and he was
always, to his credit,

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very cordial to
me, very tolerant.

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Knowing that I didn't
always agree with him.

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

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"Professor Gerhardt,
how am I doing?"

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He would always say that
with a twinkle in his eye

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and a smile on his face.

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

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"to talk about that."

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(audience laughing)

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And he, of course, laughed.

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And so,

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

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personal relish.

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The circumstances that often
give rise to vacancies,

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are, in a very real
sense, tragic ones,

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unfortunate ones, but,
inevitable ones, often times.

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And it so happens that
when we talk about

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Justice Scalia's vacancy,

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

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even before we talk
about the actual process,

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the context in which it arose.

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So justice Scalia died,
as Rob reminded us,

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February 13th.

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And what is, I think,
particularly significant

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about that is more
than one thing.

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Nobody saw this coming.

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And I think you cannot
forget that fact.

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I happened to be at a
conference in Atlanta

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on the Thursday and
Friday preceding,

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and one of the last
panels at that conference

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involved three of
the nation's leading

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journalists covering the
United States Supreme Court,

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including Dahlia
Lithwick from Slate,

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Bob Barnes from the
Washington Post,

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and Adam Liptack from
the New York Times.

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

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and know it's true,

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on this last panel
somebody said,

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will the Supreme
Court be an issue

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in this upcoming election?

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

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"it's gonna be an issue.

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

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"And people have
said for decades,

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

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

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He said this on Friday.

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

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where he was

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conducting a really
special class at

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Washington University
in St Louis,

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on the Supreme Court,
and so he was in class

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

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And,

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

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on Justice Scalia
doesn't show up until

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

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turn his phone on
until about six PM.

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And then he turned
his phone on and,

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

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And he realizes,

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

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and everything else,
and the entire world of

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constitutional law changed.

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And what you are
largely witnessing,

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

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is,

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what happens when
your national leaders

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decide to improvise.

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And much of what you've
been watching over the

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last several months, is a
number of senators and others

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improvising in response
to this vacancy.

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

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

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and the same is true
for the other side.

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

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being made up on the spot.

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If it seems not well
thought through,

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it seems like people
haven't really sort of

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considered this very
deeply or thoroughly,

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it's because they haven't.

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

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

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And one of the critical
reasons for that is because of

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the part of the Constitution
I just told you.

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The president nominates
Supreme Court Justices,

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but with the advice and
consent of the Senate.

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

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is more than aware

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that this is going to be a
transformative appointment

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to the United States
Supreme Court.

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That's no secret.

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Everybody understands
that whoever replaces

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Justice Scalia is gonna
make a tremendous difference

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in the future of
constitutional law.

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And just to put it
in some perspective,

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I mentioned, Justice
Scalia being one of my

08:11.691 --> 08:13.659 align:left position:12.5%,start line:5% size:77.5%
constitutional law professors,
and up until the day he died

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had literally shaped the
role of constitutional law

08:15.795 --> 08:17.363 align:left position:17.5%,start line:5% size:72.5%
that I taught and lived in.

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

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And,

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that court of which he
was a member had been

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shaped by Republican
presidents, and had not

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been dominated by
or had a majority of

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Democratic appointees
for over four decades.

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We have not lived in a time

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when there was a majority
of democratic appointees

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to the Supreme Court until,

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when I was in law
school, and before.

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That dates me to some extent.

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But,

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it's worth thinking
about what that means.

08:58.104 --> 09:01.908 align:left position:27.5%,start line:83% size:62.5%
That, again, really
underscores the fact

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that this is not just
your sort of everyday

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appointment to
the Supreme Court,

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as if there were any such thing,

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now or forever in the future.

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This is really just the
beginning of a holy war.

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This is the beginning
of thermonuclear war.

09:21.527 --> 09:23.863 align:left position:22.5%,start line:89% size:67.5%
This is an appointment

09:23.963 --> 09:26.165 align:left position:17.5%,start line:89% size:72.5%
that each side understands,

09:26.265 --> 09:29.001 align:left position:20%,start line:83% size:70%
almost everything they
stand for and care about

09:29.101 --> 09:30.703 align:left position:35%,start line:89% size:55%
is at stake.

09:30.803 --> 09:33.706 align:left position:25%,start line:83% size:65%
So if they fight over
it, it shouldn't be

09:33.806 --> 09:35.908 align:left position:20%,start line:89% size:70%
the least bit surprising.

09:36.008 --> 09:39.045 align:left position:27.5%,start line:77% size:62.5%
A process that puts
the president and
senators in control,

09:39.145 --> 09:41.480 align:left position:27.5%,start line:83% size:62.5%
is necessarily a
political process.

09:41.581 --> 09:42.982 align:left position:30%,start line:83% size:60%
So we shouldn't
be surprised that

09:43.082 --> 09:47.386 align:left position:20%,start line:83% size:70%
partisanship and politics
are part of it as well.

09:47.486 --> 09:49.088 align:left position:27.5%,start line:89% size:62.5%
That's the context.

09:50.556 --> 09:54.126 align:left position:15%,start line:83% size:75%
At the same time, we need to
think about a second thing,

09:54.226 --> 09:56.128 align:left position:22.5%,start line:89% size:67.5%
which is, OK, what else

09:57.830 --> 09:59.198 align:left position:22.5%,start line:89% size:67.5%
do we know about this,

09:59.298 --> 10:00.900 align:left position:12.5%,start line:83% size:77.5%
and is there anything, of
course, history could tell us?

10:01.000 --> 10:04.937 align:left position:20%,start line:83% size:70%
This is where some of
the dialogue takes place.

10:05.037 --> 10:07.540 align:left position:15%,start line:83% size:75%
There's a lot of talk about
what history has to teach us,

10:07.640 --> 10:09.475 align:left position:20%,start line:89% size:70%
if anything, about this,

10:09.575 --> 10:12.244 align:left position:22.5%,start line:83% size:67.5%
and I can only mention
a couple things here.

10:12.345 --> 10:14.080 align:left position:27.5%,start line:89% size:62.5%
First is, I think,

10:14.180 --> 10:17.183 align:left position:27.5%,start line:83% size:62.5%
while there's some
predisposition to

10:18.384 --> 10:22.388 align:left position:20%,start line:83% size:70%
invest history with some
kind of sacred quality,

10:22.488 --> 10:23.556 align:left position:35%,start line:89% size:55%
we shouldn't.

10:24.690 --> 10:26.792 align:left position:20%,start line:89% size:70%
History doesn't bind us.

10:26.892 --> 10:29.228 align:left position:25%,start line:83% size:65%
History doesn't tell
us what we should do.

10:29.328 --> 10:30.663 align:left position:20%,start line:5% size:70%
History might be able to
tell us a little bit of

10:30.763 --> 10:33.532 align:left position:27.5%,start line:5% size:62.5%
what we could've
done, or could do,

10:33.633 --> 10:37.703 align:left position:25%,start line:5% size:65%
but it doesn't tell
us what we should do.

10:37.803 --> 10:41.807 align:left position:17.5%,start line:83% size:72.5%
And as we look to the past,
we should keep that in mind.

10:41.907 --> 10:43.909 align:left position:25%,start line:83% size:65%
And you can see some
of the improvisation

10:44.010 --> 10:46.078 align:left position:27.5%,start line:83% size:62.5%
on the part of
Republican leaders,

10:46.178 --> 10:50.516 align:left position:17.5%,start line:83% size:72.5%
in that the rationale for
the opposition has changed.

10:50.616 --> 10:53.285 align:left position:15%,start line:89% size:75%
Initially it was grounded in,

10:53.386 --> 10:55.254 align:left position:30%,start line:83% size:60%
the idea that we
don't do this in

10:55.354 --> 10:57.089 align:left position:15%,start line:89% size:75%
presidential election years.

10:57.189 --> 10:58.357 align:left position:10%,start line:89% size:80%
The biggest problem with that is

10:58.457 --> 11:00.760 align:left position:27.5%,start line:83% size:62.5%
that's completely
counter-historical.

11:00.860 --> 11:04.563 align:left position:22.5%,start line:83% size:67.5%
There's no history, at
all, to support that.

11:05.765 --> 11:07.299 align:left position:25%,start line:83% size:65%
And I don't say that
as just a partisan.

11:07.400 --> 11:11.671 align:left position:20%,start line:83% size:70%
I've worked in this
process for many decades.

11:11.771 --> 11:15.341 align:left position:15%,start line:83% size:75%
Did have an opportunity to
write a book on the subject,

11:15.441 --> 11:17.476 align:left position:22.5%,start line:83% size:67.5%
and more than just
that, have had a chance

11:17.576 --> 11:19.445 align:left position:25%,start line:83% size:65%
to consult with
senators on all this.

11:19.545 --> 11:20.713 align:left position:32.5%,start line:89% size:57.5%
And there's no

11:22.281 --> 11:23.716 align:left position:20%,start line:89% size:70%
support for the idea that

11:23.816 --> 11:25.951 align:left position:27.5%,start line:83% size:62.5%
during presidential
election years,

11:26.052 --> 11:29.555 align:left position:27.5%,start line:5% size:62.5%
the Senate shuts
down for business.

11:29.655 --> 11:31.757 align:left position:20%,start line:5% size:70%
That just doesn't happen.

11:32.692 --> 11:33.926 align:left position:45%,start line:89% size:45%
And,

11:34.026 --> 11:35.428 align:left position:37.5%,start line:89% size:52.5%
it is true

11:35.528 --> 11:38.130 align:left position:17.5%,start line:83% size:72.5%
that in the modern era,
the Senate has slowed down

11:38.230 --> 11:40.366 align:left position:22.5%,start line:83% size:67.5%
when it comes to lower
court nominations,

11:40.466 --> 11:43.903 align:left position:22.5%,start line:83% size:67.5%
but for those of us who
care about distinctions,

11:44.003 --> 11:45.504 align:left position:22.5%,start line:83% size:67.5%
slowing down for lower
court nominations

11:45.604 --> 11:46.972 align:left position:25%,start line:89% size:65%
is not the same thing

11:47.073 --> 11:50.209 align:left position:17.5%,start line:83% size:72.5%
as slowing down for
Supreme Court nominations.

11:50.309 --> 11:53.045 align:left position:10%,start line:89% size:80%
And, in fact, over 20 presidents

11:54.447 --> 11:57.216 align:left position:17.5%,start line:83% size:72.5%
have made successful
Supreme Court appointments

11:57.316 --> 12:01.554 align:left position:15%,start line:83% size:75%
to the Supreme Court, during
presidential election years,

12:01.654 --> 12:03.489 align:left position:22.5%,start line:89% size:67.5%
or even as lame ducks.

12:04.757 --> 12:07.326 align:left position:22.5%,start line:89% size:67.5%
Now that's almost half.

12:07.426 --> 12:10.930 align:left position:25%,start line:83% size:65%
I'm not good at math,
but it's almost half.

12:11.030 --> 12:12.698 align:left position:30%,start line:89% size:60%
Which is, a fact.

12:12.798 --> 12:14.867 align:left position:20%,start line:83% size:70%
So as we go through this,
if there's anything else

12:14.967 --> 12:18.738 align:left position:20%,start line:83% size:70%
we can do, we can try and
keep everybody honest by

12:18.838 --> 12:22.842 align:left position:20%,start line:83% size:70%
making sure that they get
their history correct.

12:25.211 --> 12:29.081 align:left position:17.5%,start line:83% size:72.5%
When we do look at history,
we can see a couple things,

12:29.181 --> 12:30.750 align:left position:12.5%,start line:89% size:77.5%
beyond what I've already said.

12:30.850 --> 12:33.419 align:left position:20%,start line:89% size:70%
Over the last 100 years,

12:33.519 --> 12:35.354 align:left position:15%,start line:89% size:75%
to the extent it is relevant,

12:35.454 --> 12:37.323 align:left position:22.5%,start line:83% size:67.5%
the Senate has actually
taken action on

12:37.423 --> 12:39.658 align:left position:25%,start line:83% size:65%
every single Supreme
Court nomination

12:39.759 --> 12:42.128 align:left position:17.5%,start line:89% size:72.5%
with the exception of two.

12:42.228 --> 12:43.996 align:left position:30%,start line:83% size:60%
And the only two
times it didn't,

12:44.096 --> 12:47.933 align:left position:20%,start line:83% size:70%
were the two nominations
that were withdrawn.

12:48.033 --> 12:50.369 align:left position:15%,start line:83% size:75%
President Reagan's nomination
of Douglas Ginsburg,

12:50.469 --> 12:53.472 align:left position:20%,start line:83% size:70%
withdrawn within nine
days of that nomination,

12:53.572 --> 12:54.707 align:left position:15%,start line:89% size:75%
and President George W Bush's

12:54.807 --> 12:56.942 align:left position:25%,start line:83% size:65%
withdrawal of Harriet
Miers' nomination

12:57.042 --> 13:01.313 align:left position:12.5%,start line:83% size:77.5%
which also was trying to break
that record of nine days.

13:01.413 --> 13:06.051 align:left position:17.5%,start line:5% size:72.5%
And otherwise, every other
Supreme Court nomination

13:06.152 --> 13:09.321 align:left position:25%,start line:5% size:65%
has actually had
Senate consideration.

13:11.290 --> 13:14.393 align:left position:20%,start line:83% size:70%
A second thing, we even
have Senate consideration

13:14.493 --> 13:18.430 align:left position:15%,start line:83% size:75%
of Supreme Court nominations
during the Civil War,

13:18.531 --> 13:21.333 align:left position:27.5%,start line:83% size:62.5%
during World War I,
During World War II,

13:21.433 --> 13:23.135 align:left position:15%,start line:89% size:75%
during the Great Depression.

13:23.235 --> 13:27.239 align:left position:22.5%,start line:83% size:67.5%
So the fact that there
are important political

13:27.339 --> 13:30.843 align:left position:22.5%,start line:83% size:67.5%
and other events has
not stopped the Senate

13:30.943 --> 13:33.979 align:left position:12.5%,start line:89% size:77.5%
from at least holding hearings,

13:34.079 --> 13:37.016 align:left position:20%,start line:83% size:70%
and giving consideration
to the particular merits

13:37.116 --> 13:38.851 align:left position:17.5%,start line:89% size:72.5%
of a particular nomination.

13:38.951 --> 13:40.553 align:left position:27.5%,start line:89% size:62.5%
That's the history.

13:41.921 --> 13:44.123 align:left position:15%,start line:5% size:75%
Now when we move beyond that,
we can ask the question,

13:44.223 --> 13:45.491 align:left position:47.5%,start line:5% size:42.5%
OK,

13:45.591 --> 13:48.794 align:left position:20%,start line:5% size:70%
Does the Senate have
the power to do nothing?

13:48.894 --> 13:53.299 align:left position:17.5%,start line:83% size:72.5%
This is a very interesting
question in the abstract.

13:53.399 --> 13:56.635 align:left position:22.5%,start line:83% size:67.5%
As a practical matter,
it doesn't take much

13:56.735 --> 14:00.806 align:left position:17.5%,start line:83% size:72.5%
for the Senate to actually
comply with it's oath.

14:02.675 --> 14:03.509 align:left position:42.5%,start line:89% size:47.5%
And so,

14:04.710 --> 14:07.713 align:left position:25%,start line:83% size:65%
there are times when
the Senate does act,

14:07.813 --> 14:10.316 align:left position:20%,start line:83% size:70%
does give consideration,
and in fact,

14:10.416 --> 14:11.984 align:left position:20%,start line:89% size:70%
may reject a nomination.

14:12.084 --> 14:14.486 align:left position:27.5%,start line:83% size:62.5%
Or does act, does
give consideration,

14:14.587 --> 14:18.090 align:left position:20%,start line:83% size:70%
and in fact, after floor
debate and whatever else,

14:18.190 --> 14:19.258 align:left position:25%,start line:89% size:65%
may not take a vote.

14:19.358 --> 14:21.160 align:left position:12.5%,start line:89% size:77.5%
That's happened a couple times.

14:21.260 --> 14:24.430 align:left position:20%,start line:83% size:70%
More often it's actually
acted positively.

14:24.530 --> 14:26.232 align:left position:25%,start line:77% size:65%
As Geoffrey Stone,
at the University of
Chicago's Law School

14:26.332 --> 14:27.666 align:left position:30%,start line:89% size:60%
has pointed out,

14:28.534 --> 14:31.604 align:left position:12.5%,start line:89% size:77.5%
when you consider the record on

14:31.704 --> 14:33.973 align:left position:25%,start line:83% size:65%
how the nomination
of a well-qualified,

14:34.073 --> 14:37.743 align:left position:22.5%,start line:83% size:67.5%
moderate nominee has
fared, in modern times,

14:38.944 --> 14:42.114 align:left position:27.5%,start line:83% size:62.5%
they are confirmed
100% of the time.

14:43.282 --> 14:44.783 align:left position:27.5%,start line:89% size:62.5%
That's the record.

14:46.085 --> 14:46.919 align:left position:42.5%,start line:89% size:47.5%
And so,

14:48.454 --> 14:50.923 align:left position:25%,start line:83% size:65%
it's fair to say
that to some extent,

14:51.023 --> 14:54.093 align:left position:12.5%,start line:83% size:77.5%
the Republican leadership is
swimming upstream on this one,

14:54.193 --> 14:55.961 align:left position:20%,start line:83% size:70%
when it comes to, at
least, historical trends

14:56.061 --> 14:58.297 align:left position:22.5%,start line:89% size:67.5%
or historical patterns.

14:58.397 --> 15:01.000 align:left position:22.5%,start line:83% size:67.5%
Other question about
history that comes up,

15:01.100 --> 15:03.702 align:left position:25%,start line:83% size:65%
inevitably is, what's
the closest analogy.

15:03.802 --> 15:07.706 align:left position:17.5%,start line:83% size:72.5%
Now this is always, this
is a tough thing to answer,

15:07.806 --> 15:09.642 align:left position:20%,start line:83% size:70%
it's the kind of thing a
law professor would ask,

15:09.742 --> 15:12.011 align:left position:17.5%,start line:89% size:72.5%
what's the closest analogy?

15:12.111 --> 15:15.147 align:left position:15%,start line:83% size:75%
And the secret, that I can
tell you as a law professor,

15:15.247 --> 15:18.918 align:left position:15%,start line:5% size:75%
maybe April would agree is
that there's no right answer.

15:19.018 --> 15:21.654 align:left position:20%,start line:5% size:70%
But some answers are
more correct than others.

15:21.754 --> 15:23.188 align:left position:27.5%,start line:89% size:62.5%
(audience laughing)

15:23.289 --> 15:26.458 align:left position:17.5%,start line:83% size:72.5%
Now you can spend a lot of
time thinking about that.

15:26.558 --> 15:27.393 align:left position:42.5%,start line:89% size:47.5%
And so,

15:29.662 --> 15:30.763 align:left position:35%,start line:89% size:55%
my estimation

15:32.331 --> 15:34.033 align:left position:15%,start line:89% size:75%
is that the closest analogy,

15:34.133 --> 15:36.635 align:left position:22.5%,start line:83% size:67.5%
the only thing that
sort of seems to come,

15:36.735 --> 15:39.171 align:left position:30%,start line:83% size:60%
I think, anything
remotely close,

15:39.271 --> 15:41.240 align:left position:22.5%,start line:83% size:67.5%
arose when Andrew
Johnson was president.

15:41.340 --> 15:43.142 align:left position:22.5%,start line:83% size:67.5%
Now many of us probably
don't remember that

15:43.242 --> 15:44.977 align:left position:22.5%,start line:89% size:67.5%
'cause we weren't here.

15:45.077 --> 15:49.248 align:left position:17.5%,start line:83% size:72.5%
If you were here then you
should be the one speaking.

15:50.649 --> 15:52.718 align:left position:15%,start line:83% size:75%
And so, what happened when
Andrew Johnson was president?

15:52.818 --> 15:56.322 align:left position:15%,start line:83% size:75%
Well, of course Andrew
Johnson was Abraham Lincoln's

15:56.422 --> 15:58.958 align:left position:22.5%,start line:83% size:67.5%
second vice president,
a man that Lincoln said

15:59.058 --> 16:02.428 align:left position:15%,start line:83% size:75%
after his inauguration,
"Keep that man away from me."

16:02.528 --> 16:05.197 align:left position:30%,start line:83% size:60%
And so, Johnson
becomes president

16:05.297 --> 16:08.067 align:left position:17.5%,start line:83% size:72.5%
because of the unfortunate
and tragic assassination

16:08.167 --> 16:09.501 align:left position:25%,start line:5% size:65%
of President Lincoln.

16:09.601 --> 16:10.769 align:left position:12.5%,start line:5% size:77.5%
When Johnson becomes president,

16:10.869 --> 16:13.372 align:left position:20%,start line:5% size:70%
essentially nobody wants
him to be president.

16:13.472 --> 16:15.674 align:left position:25%,start line:83% size:65%
And then he proceeded
to alienate everybody.

16:15.774 --> 16:17.509 align:left position:27.5%,start line:89% size:62.5%
(audience laughing)

16:17.609 --> 16:21.380 align:left position:10%,start line:83% size:80%
And so the Republican leadership
in the Senate and Congress

16:21.480 --> 16:24.817 align:left position:22.5%,start line:83% size:67.5%
at that time responded
by passing a law.

16:26.218 --> 16:29.288 align:left position:15%,start line:83% size:75%
And in fact, the seats in
the Supreme Court are created

16:29.388 --> 16:31.490 align:left position:10%,start line:5% size:80%
by Congress through legislation.

16:31.590 --> 16:36.328 align:left position:15%,start line:5% size:75%
So Congress passed a law
which prospectively abolished

16:36.428 --> 16:38.397 align:left position:25%,start line:83% size:65%
the next two seats
on the Supreme Court

16:38.497 --> 16:40.399 align:left position:22.5%,start line:89% size:67.5%
if their occupants died

16:42.301 --> 16:44.503 align:left position:20%,start line:89% size:70%
during that time period.

16:44.603 --> 16:46.939 align:left position:17.5%,start line:83% size:72.5%
So they didn't want Johnson
to make the appointment.

16:47.039 --> 16:48.574 align:left position:22.5%,start line:83% size:67.5%
And in fact, there were
two people that did,

16:48.674 --> 16:52.478 align:left position:17.5%,start line:83% size:72.5%
in fact, die, and their
seats were then abolished.

16:52.578 --> 16:57.082 align:left position:15%,start line:83% size:75%
Johnson then is impeached and
barely escapes conviction.

16:57.182 --> 17:00.552 align:left position:17.5%,start line:83% size:72.5%
He leaves the White House,
Ulysses Grant comes in,

17:00.652 --> 17:04.390 align:left position:12.5%,start line:83% size:77.5%
and Congress recreates the two
seats, and Grant fills them.

17:04.490 --> 17:06.992 align:left position:20%,start line:89% size:70%
That's the closest thing

17:07.092 --> 17:08.160 align:left position:37.5%,start line:89% size:52.5%
to analogy.

17:08.260 --> 17:09.762 align:left position:22.5%,start line:83% size:67.5%
Now if you want to
make an analogy between

17:09.862 --> 17:14.466 align:left position:15%,start line:83% size:75%
Andrew Johnson and Barak
Obama, I would say good luck.

17:14.566 --> 17:17.369 align:left position:27.5%,start line:89% size:62.5%
(audience laughing)

17:17.469 --> 17:19.038 align:left position:25%,start line:83% size:65%
If you want to think
about the two people

17:19.138 --> 17:20.806 align:left position:25%,start line:89% size:65%
that had the highest

17:22.207 --> 17:26.145 align:left position:10%,start line:83% size:80%
number of votes publicly for
President of the United States,

17:26.245 --> 17:29.915 align:left position:25%,start line:83% size:65%
the top two are Barak
Obama and Barak Obama.

17:31.917 --> 17:33.318 align:left position:30%,start line:89% size:60%
Johnson got zero.

17:35.320 --> 17:38.624 align:left position:20%,start line:83% size:70%
And then you can just
sort of go on from there.

17:38.724 --> 17:41.593 align:left position:22.5%,start line:83% size:67.5%
And so, we can look at
some of the rationale,

17:41.693 --> 17:46.165 align:left position:15%,start line:83% size:75%
and I want to pick that apart
and get to what I think is,

17:46.265 --> 17:48.967 align:left position:20%,start line:5% size:70%
I guess what I'd call the
most credible rationale.

17:49.068 --> 17:52.171 align:left position:22.5%,start line:5% size:67.5%
So one rationale we've
already heard which is,

17:52.271 --> 17:54.773 align:left position:12.5%,start line:83% size:77.5%
OK, we should let the next
president of the United States

17:54.873 --> 17:56.475 align:left position:25%,start line:89% size:65%
make the nomination.

17:56.575 --> 17:59.244 align:left position:10%,start line:89% size:80%
And that's why we're doing this.

18:00.446 --> 18:01.313 align:left position:40%,start line:89% size:50%
I think,

18:02.514 --> 18:03.682 align:left position:22.5%,start line:83% size:67.5%
of course I have a lot
of problems with that,

18:03.782 --> 18:05.150 align:left position:27.5%,start line:83% size:62.5%
one problem that I
have with that is,

18:05.250 --> 18:09.188 align:left position:15%,start line:83% size:75%
I actually don't think the
people who say it believe it.

18:09.288 --> 18:10.756 align:left position:25%,start line:83% size:65%
Because I think a
lot of people who say

18:10.856 --> 18:12.091 align:left position:25%,start line:83% size:65%
that they don't want
the next president

18:12.191 --> 18:13.892 align:left position:22.5%,start line:83% size:67.5%
to make the nomination
would actually be

18:13.992 --> 18:16.795 align:left position:22.5%,start line:83% size:67.5%
perfectly happy voting
against the nominee

18:16.895 --> 18:20.099 align:left position:22.5%,start line:83% size:67.5%
even once the next
president got elected.

18:20.199 --> 18:23.969 align:left position:22.5%,start line:83% size:67.5%
For example, Pat Toomey
from Pennsylvania,

18:24.069 --> 18:25.938 align:left position:22.5%,start line:83% size:67.5%
has said more than
once, we should let the

18:26.038 --> 18:28.640 align:left position:30%,start line:83% size:60%
American people
make that choice.

18:28.740 --> 18:31.844 align:left position:10%,start line:83% size:80%
Choose the president who's
gonna make the next appointment.

18:31.944 --> 18:35.514 align:left position:25%,start line:83% size:65%
Well, when Pat Toomey
came into the Senate,

18:36.715 --> 18:38.417 align:left position:22.5%,start line:83% size:67.5%
he then proceeded, less
than two years after

18:38.517 --> 18:40.519 align:left position:25%,start line:83% size:65%
Barak Obama's first
election's presidency

18:40.619 --> 18:43.689 align:left position:10%,start line:83% size:80%
to oppose Elena Kagan's
nomination to the Supreme Court.

18:43.789 --> 18:47.793 align:left position:12.5%,start line:83% size:77.5%
Had nothing to do with the
American people's preferences.

18:47.893 --> 18:51.296 align:left position:17.5%,start line:83% size:72.5%
So, so much for letting
the president, in a sense,

18:51.396 --> 18:52.865 align:left position:30%,start line:89% size:60%
make that choice.

18:52.965 --> 18:55.701 align:left position:20%,start line:83% size:70%
And I don't think Senator
Toomey believes that.

18:55.801 --> 18:58.570 align:left position:27.5%,start line:83% size:62.5%
In fact, he's gone
on to say, no.

19:00.772 --> 19:02.574 align:left position:17.5%,start line:89% size:72.5%
There's a second rationale.

19:02.674 --> 19:06.845 align:left position:20%,start line:83% size:70%
The second rationale, and
this cuts closer to home,

19:09.982 --> 19:14.153 align:left position:17.5%,start line:5% size:72.5%
is that the Senate needs
to take extra special care

19:15.654 --> 19:19.324 align:left position:22.5%,start line:83% size:67.5%
because this is
Justice Scalia's seat.

19:19.424 --> 19:22.361 align:left position:27.5%,start line:83% size:62.5%
And the court's
split four to four,

19:23.228 --> 19:24.630 align:left position:20%,start line:89% size:70%
roughly down the middle,

19:24.730 --> 19:28.066 align:left position:22.5%,start line:83% size:67.5%
again, my math is
always a little shaky.

19:29.234 --> 19:30.068 align:left position:42.5%,start line:89% size:47.5%
And so,

19:31.270 --> 19:34.106 align:left position:30%,start line:83% size:60%
because it's that
seat, we need to,

19:34.206 --> 19:36.408 align:left position:22.5%,start line:83% size:67.5%
in a sense turn to the
American people again

19:36.508 --> 19:38.210 align:left position:25%,start line:89% size:65%
to kind of have them

19:40.012 --> 19:42.147 align:left position:22.5%,start line:89% size:67.5%
validate the principle.

19:42.247 --> 19:43.582 align:left position:15%,start line:89% size:75%
Whatever principle it may be.

19:43.682 --> 19:46.185 align:left position:15%,start line:5% size:75%
For example, if the American
people were to elect,

19:46.285 --> 19:48.654 align:left position:27.5%,start line:5% size:62.5%
I'm gonna just take
a hypothetical,

19:48.754 --> 19:52.491 align:left position:20%,start line:83% size:70%
Ted Cruz, then presumably
that nomination might look

19:52.591 --> 19:54.092 align:left position:22.5%,start line:83% size:67.5%
a little bit like what
Justice Scalia did

19:54.193 --> 19:55.661 align:left position:30%,start line:83% size:60%
and maybe Senator
Toomey would say,

19:55.761 --> 19:57.396 align:left position:15%,start line:89% size:75%
OK, that person looks like...

19:57.496 --> 19:59.998 align:left position:30%,start line:83% size:60%
I see some public
support for that.

20:00.098 --> 20:02.668 align:left position:12.5%,start line:89% size:77.5%
And therefore I can go with it.

20:05.170 --> 20:07.406 align:left position:15%,start line:83% size:75%
This is just a variation of
really of the first argument.

20:07.506 --> 20:10.142 align:left position:20%,start line:83% size:70%
I'm not terribly moved
by this argument either.

20:10.242 --> 20:13.078 align:left position:20%,start line:83% size:70%
Again, because the
linchpin of it is really

20:13.178 --> 20:15.447 align:left position:17.5%,start line:83% size:72.5%
the ideology or
philosophy of the nominee.

20:15.547 --> 20:19.318 align:left position:10%,start line:83% size:80%
It's not about what the American
people say or don't say.

20:19.418 --> 20:21.286 align:left position:17.5%,start line:83% size:72.5%
Because the American
people could speak to this,

20:21.386 --> 20:23.255 align:left position:17.5%,start line:83% size:72.5%
they could elect, oh,
let's say, Hillary Clinton,

20:23.355 --> 20:25.524 align:left position:12.5%,start line:89% size:77.5%
President of the United States,

20:25.624 --> 20:28.360 align:left position:15%,start line:83% size:75%
but my guess is, if Senator
Toomey's still in the Senate,

20:28.460 --> 20:29.895 align:left position:27.5%,start line:5% size:62.5%
he's not gonna pay
attention to that,

20:29.995 --> 20:31.396 align:left position:20%,start line:5% size:70%
he'll pay attention to
the fact that he just got

20:31.496 --> 20:32.698 align:left position:30%,start line:5% size:60%
reelected to the
Senate, and say,

20:32.798 --> 20:35.901 align:left position:25%,start line:83% size:65%
oh it's really the
Pennsylvania people,

20:36.001 --> 20:38.136 align:left position:12.5%,start line:89% size:77.5%
that's who I'm gonna listen to.

20:38.237 --> 20:41.640 align:left position:25%,start line:83% size:65%
So you'll notice the
ball keeps moving.

20:41.740 --> 20:43.108 align:left position:32.5%,start line:89% size:57.5%
It's not fixed.

20:43.208 --> 20:44.476 align:left position:25%,start line:83% size:65%
Which, by the way, if
this were a matter of

20:44.576 --> 20:47.980 align:left position:25%,start line:83% size:65%
constitutional law,
should make us pause.

20:48.080 --> 20:50.949 align:left position:10%,start line:83% size:80%
That's because this isn't
grounded in constitutional law,

20:51.049 --> 20:54.620 align:left position:17.5%,start line:83% size:72.5%
it's grounded in
partisanship and politics.

20:54.720 --> 20:58.991 align:left position:20%,start line:83% size:70%
When we strip everything
away, I think we can see,

20:59.091 --> 21:00.425 align:left position:30%,start line:89% size:60%
a couple things.

21:01.560 --> 21:03.829 align:left position:25%,start line:83% size:65%
I want to first
point to what I think

21:03.929 --> 21:06.031 align:left position:15%,start line:89% size:75%
is part of what is going on,

21:06.131 --> 21:09.034 align:left position:17.5%,start line:83% size:72.5%
and then I'll point to what
I think is the more credible

21:09.134 --> 21:11.536 align:left position:10%,start line:89% size:80%
explanation for what's going on.

21:11.637 --> 21:12.904 align:left position:32.5%,start line:89% size:57.5%
And I say this,

21:14.840 --> 21:18.710 align:left position:17.5%,start line:83% size:72.5%
without as much trepidation
as I used to say it.

21:18.810 --> 21:21.046 align:left position:12.5%,start line:89% size:77.5%
I should tell you, as preface,

21:21.146 --> 21:23.815 align:left position:17.5%,start line:89% size:72.5%
that I grew up in Alabama.

21:23.915 --> 21:26.652 align:left position:25%,start line:83% size:65%
And I grew up in the
1960s in Alabama.

21:26.752 --> 21:30.622 align:left position:25%,start line:83% size:65%
And I grew up as a
Jew in 1960s Alabama.

21:30.722 --> 21:31.923 align:left position:22.5%,start line:89% size:67.5%
There were four of us.

21:32.024 --> 21:35.027 align:left position:27.5%,start line:89% size:62.5%
(audience laughing)

21:37.562 --> 21:40.432 align:left position:22.5%,start line:83% size:67.5%
None of them were
living in Alabama, no.

21:40.532 --> 21:41.933 align:left position:27.5%,start line:89% size:62.5%
(audience laughing)

21:42.034 --> 21:46.104 align:left position:15%,start line:83% size:75%
And all I can say is, I think
I know racism when I see it.

21:47.639 --> 21:50.175 align:left position:22.5%,start line:83% size:67.5%
And I think some of the
opposition is driven by

21:50.275 --> 21:52.044 align:left position:25%,start line:89% size:65%
the basest, coarsest,

21:54.579 --> 21:56.581 align:left position:20%,start line:5% size:70%
feelings that may exist.

21:57.783 --> 21:59.885 align:left position:25%,start line:83% size:65%
It has to do with
the very simple fact

21:59.985 --> 22:03.221 align:left position:20%,start line:83% size:70%
that a black man
occupies the White House.

22:03.322 --> 22:04.823 align:left position:25%,start line:83% size:65%
When Mitch McConnell
says, no, no, no,

22:04.923 --> 22:06.258 align:left position:15%,start line:89% size:75%
this president won't make it.

22:06.358 --> 22:09.194 align:left position:10%,start line:89% size:80%
That's not a stand on principle,

22:09.294 --> 22:11.396 align:left position:20%,start line:89% size:70%
that's a stand on racism.

22:12.564 --> 22:14.866 align:left position:22.5%,start line:83% size:67.5%
And I've seen stands on
racism, George Wallace

22:14.966 --> 22:17.269 align:left position:10%,start line:89% size:80%
was the governor when I grew up.

22:17.369 --> 22:19.271 align:left position:30%,start line:83% size:60%
And I ran as far
away as I could.

22:19.371 --> 22:20.739 align:left position:27.5%,start line:83% size:62.5%
All the way to
North Carolina, no.

22:20.839 --> 22:23.542 align:left position:27.5%,start line:89% size:62.5%
(audience laughing)

22:23.642 --> 22:24.776 align:left position:20%,start line:89% size:70%
And now look at it, yeah.

22:24.876 --> 22:27.279 align:left position:27.5%,start line:89% size:62.5%
(audience laughing)

22:27.379 --> 22:28.213 align:left position:42.5%,start line:89% size:47.5%
And so,

22:29.915 --> 22:31.416 align:left position:30%,start line:83% size:60%
I don't think we
can ignore that,

22:31.516 --> 22:35.120 align:left position:17.5%,start line:83% size:72.5%
and one reason I point that
out, I hate to tell you,

22:35.220 --> 22:37.055 align:left position:27.5%,start line:83% size:62.5%
is because, with
the flip of a page,

22:37.155 --> 22:39.925 align:left position:15%,start line:89% size:75%
racism is not gonna go away.

22:40.025 --> 22:41.993 align:left position:15%,start line:89% size:75%
And I also hate to tell you,

22:42.094 --> 22:43.595 align:left position:25%,start line:83% size:65%
with the flip of a
page, it doesn't mean

22:43.695 --> 22:45.063 align:left position:25%,start line:83% size:65%
that a woman who gets
elected president

22:45.163 --> 22:47.733 align:left position:17.5%,start line:89% size:72.5%
is gonna be any better off.

22:47.833 --> 22:51.336 align:left position:22.5%,start line:83% size:67.5%
I don't know that I
need to tell you that.

22:52.771 --> 22:56.808 align:left position:15%,start line:83% size:75%
But I think sometimes it
need to be expressed openly,

22:58.310 --> 23:01.813 align:left position:17.5%,start line:83% size:72.5%
because I do think there is
such antipathy and hostility

23:01.913 --> 23:04.216 align:left position:27.5%,start line:83% size:62.5%
to the progress of
women in society,

23:04.316 --> 23:07.219 align:left position:17.5%,start line:5% size:72.5%
it seems to know no bounds.

23:07.319 --> 23:11.623 align:left position:17.5%,start line:5% size:72.5%
But I believe, to some
extent, it is generational.

23:11.723 --> 23:14.626 align:left position:15%,start line:83% size:75%
And I believe this
generation that is coming up,

23:14.726 --> 23:17.295 align:left position:27.5%,start line:83% size:62.5%
is coming up in a
very different way.

23:17.396 --> 23:19.965 align:left position:25%,start line:83% size:65%
Not to say it's
perfect by any means,

23:20.065 --> 23:23.568 align:left position:17.5%,start line:83% size:72.5%
but I think that there are
hurdles to be gotten over,

23:23.668 --> 23:25.670 align:left position:15%,start line:89% size:75%
hurdles yet to be dealt with,

23:25.771 --> 23:28.273 align:left position:12.5%,start line:89% size:77.5%
that we can expect will arise.

23:29.941 --> 23:31.543 align:left position:17.5%,start line:83% size:72.5%
And so the road, and nobody
knows this better than

23:31.643 --> 23:35.814 align:left position:17.5%,start line:83% size:72.5%
Hillary Clinton, the road
ahead is not gonna be easy.

23:37.816 --> 23:39.584 align:left position:20%,start line:83% size:70%
So where is the
principle in all of this?

23:39.684 --> 23:42.254 align:left position:27.5%,start line:83% size:62.5%
Well the principle
in a sense is,

23:42.354 --> 23:44.956 align:left position:12.5%,start line:89% size:77.5%
intertwined with some of this.

23:45.056 --> 23:48.693 align:left position:25%,start line:5% size:65%
And it is of course,
the basic principle

23:48.794 --> 23:49.628 align:left position:40%,start line:5% size:50%
that yes,

23:50.595 --> 23:51.696 align:left position:35%,start line:5% size:55%
we who oppose

23:53.198 --> 23:56.301 align:left position:10%,start line:83% size:80%
President Obama making any
nomination believe that the next

23:56.401 --> 23:58.370 align:left position:25%,start line:83% size:65%
Supreme Court Justice
should look and have

23:58.470 --> 24:02.574 align:left position:20%,start line:83% size:70%
exactly the same outlook
that Justice Scalia had.

24:03.875 --> 24:06.211 align:left position:15%,start line:89% size:75%
The principle is a principle

24:08.880 --> 24:12.417 align:left position:15%,start line:83% size:75%
of commitment to, for lack of
a better way of putting it,

24:12.517 --> 24:16.321 align:left position:27.5%,start line:83% size:62.5%
to strict adherence
to original meaning,

24:16.421 --> 24:18.957 align:left position:10%,start line:89% size:80%
strict adherence to texturalism,

24:19.057 --> 24:21.560 align:left position:20%,start line:83% size:70%
strict adherence to those
things that presume to

24:21.660 --> 24:23.462 align:left position:15%,start line:89% size:75%
the court had been adhered to

24:23.562 --> 24:26.531 align:left position:25%,start line:83% size:65%
while Justice Scalia
was the pivotal vote.

24:26.631 --> 24:29.901 align:left position:25%,start line:83% size:65%
So I have a couple
thoughts about that.

24:31.603 --> 24:35.774 align:left position:20%,start line:83% size:70%
I'll concede for a moment
that that's a principle.

24:37.676 --> 24:40.645 align:left position:27.5%,start line:83% size:62.5%
But, I also think
that that principle

24:40.745 --> 24:44.082 align:left position:22.5%,start line:83% size:67.5%
tends to conflate
results with ideology.

24:45.450 --> 24:49.621 align:left position:10%,start line:5% size:80%
It tends to only treat as
correct, those outcomes we like.

24:50.989 --> 24:53.692 align:left position:17.5%,start line:5% size:72.5%
I can give you an example,
from Justice Scalia.

24:53.792 --> 24:56.294 align:left position:27.5%,start line:83% size:62.5%
Now Justice Scalia
knew that he and I

24:56.394 --> 24:59.097 align:left position:20%,start line:83% size:70%
would not always see eye
to eye, and I don't think

24:59.197 --> 25:01.766 align:left position:22.5%,start line:83% size:67.5%
there was anybody more
than Justice Scalia

25:01.867 --> 25:04.302 align:left position:25%,start line:83% size:65%
who really hated the
idea that through the

25:04.402 --> 25:08.139 align:left position:25%,start line:83% size:65%
confirmation process
becoming politicized.

25:08.240 --> 25:09.074 align:left position:45%,start line:89% size:45%
And,

25:10.242 --> 25:11.776 align:left position:22.5%,start line:83% size:67.5%
but Justice Scalia who
adhered so strongly

25:11.877 --> 25:14.646 align:left position:20%,start line:89% size:70%
to original meaning, only

25:14.746 --> 25:17.782 align:left position:17.5%,start line:83% size:72.5%
twice in his almost 30
years on the Supreme Court,

25:17.883 --> 25:20.685 align:left position:15%,start line:83% size:75%
voted to strike down laws for
violating equal protection,

25:20.785 --> 25:21.686 align:left position:37.5%,start line:89% size:52.5%
only twice.

25:23.154 --> 25:25.156 align:left position:30%,start line:83% size:60%
The first had to
do with laws that

25:25.257 --> 25:28.460 align:left position:15%,start line:83% size:75%
are what we describe as
affirmative action measures.

25:28.560 --> 25:32.097 align:left position:17.5%,start line:83% size:72.5%
Now you may say that maybe
that could be squared

25:32.197 --> 25:35.200 align:left position:25%,start line:83% size:65%
with original meaning
in some sense.

25:37.469 --> 25:40.305 align:left position:22.5%,start line:83% size:67.5%
Maybe, as he would say,
because there was a

25:40.405 --> 25:44.276 align:left position:15%,start line:83% size:75%
general sort of hostility and
opposition to what we call

25:44.376 --> 25:47.579 align:left position:25%,start line:83% size:65%
race based laws, race
based classifications.

25:47.679 --> 25:50.982 align:left position:27.5%,start line:5% size:62.5%
Maybe, but it's the
second case that

25:51.082 --> 25:52.717 align:left position:20%,start line:5% size:70%
kind of proves the point.

25:52.817 --> 25:54.719 align:left position:20%,start line:83% size:70%
The second time he voted
to strike down a law

25:54.819 --> 25:58.790 align:left position:12.5%,start line:83% size:77.5%
for violating equal protection
was Bush versus Gore.

25:58.890 --> 26:01.192 align:left position:27.5%,start line:83% size:62.5%
And George W Bush,
I'm pretty sure,

26:01.293 --> 26:03.495 align:left position:25%,start line:83% size:65%
doesn't fit into
that first category.

26:03.595 --> 26:05.430 align:left position:27.5%,start line:89% size:62.5%
(audience laughing)

26:05.530 --> 26:07.966 align:left position:22.5%,start line:83% size:67.5%
The law that was
struck down in Florida

26:08.066 --> 26:10.402 align:left position:15%,start line:89% size:75%
had nothing to do with race.

26:11.503 --> 26:12.904 align:left position:25%,start line:83% size:65%
It was what we
typically would call

26:13.004 --> 26:15.507 align:left position:20%,start line:83% size:70%
a neutral classification
which typically would get

26:15.607 --> 26:16.508 align:left position:37.5%,start line:89% size:52.5%
the lowest

26:17.909 --> 26:22.247 align:left position:15%,start line:83% size:75%
level of scrutiny, or the
greatest degree of deference.

26:22.347 --> 26:26.251 align:left position:15%,start line:83% size:75%
And so, even the most strict
adherent to original meaning

26:26.351 --> 26:30.956 align:left position:15%,start line:83% size:75%
wasn't necessarily as
adherent as one might imagine

26:31.056 --> 26:31.890 align:left position:40%,start line:89% size:50%
or want.

26:33.158 --> 26:33.992 align:left position:42.5%,start line:89% size:47.5%
And so,

26:35.193 --> 26:37.195 align:left position:20%,start line:89% size:70%
but, to come back to it,

26:39.097 --> 26:40.465 align:left position:27.5%,start line:83% size:62.5%
the biggest problem
with, I think,

26:40.565 --> 26:44.402 align:left position:12.5%,start line:83% size:77.5%
the principle that may be
driving or animating all this,

26:44.502 --> 26:46.571 align:left position:15%,start line:83% size:75%
is I'm not entirely sure
how many people who actually

26:46.671 --> 26:50.842 align:left position:15%,start line:83% size:75%
are opposing this really are
committed to that principle.

26:52.611 --> 26:56.147 align:left position:22.5%,start line:5% size:67.5%
To put it another way,
they aren't saying so.

26:56.247 --> 26:59.484 align:left position:20%,start line:5% size:70%
You don't find
Republican leaders until

27:00.952 --> 27:03.455 align:left position:17.5%,start line:83% size:72.5%
somewhat more recently, and
somewhat haphazardly saying

27:03.555 --> 27:05.924 align:left position:20%,start line:83% size:70%
oh there's also a
principle involved here.

27:06.024 --> 27:08.660 align:left position:27.5%,start line:83% size:62.5%
Well, it wasn't
the initial stance.

27:08.760 --> 27:10.929 align:left position:25%,start line:83% size:65%
The initial stance of
Mitch McConnell was,

27:11.029 --> 27:13.598 align:left position:22.5%,start line:83% size:67.5%
within days of Justice
Scalia's death,

27:13.698 --> 27:16.001 align:left position:25%,start line:89% size:65%
Mitch McConnell said,

27:16.101 --> 27:17.736 align:left position:25%,start line:83% size:65%
oh, this president
isn't gonna fill it,

27:17.836 --> 27:19.304 align:left position:25%,start line:83% size:65%
it's gonna be left to
the American people.

27:19.404 --> 27:21.506 align:left position:15%,start line:83% size:75%
Nothing about
transformative appointments,

27:21.606 --> 27:23.174 align:left position:27.5%,start line:83% size:62.5%
nothing about this
court being split,

27:23.274 --> 27:26.511 align:left position:12.5%,start line:89% size:77.5%
nothing about principle at all.

27:26.611 --> 27:28.480 align:left position:15%,start line:83% size:75%
And then when some members of
the Republican Caucus said,

27:28.580 --> 27:31.883 align:left position:22.5%,start line:83% size:67.5%
well, what if in the
fall we get shellacked,

27:31.983 --> 27:34.085 align:left position:20%,start line:83% size:70%
and we need to think
about whether or not the

27:34.185 --> 27:35.787 align:left position:27.5%,start line:83% size:62.5%
Garland nomination
somehow is gonna be

27:35.887 --> 27:37.188 align:left position:27.5%,start line:5% size:62.5%
more acceptable to
us than, let's say,

27:37.288 --> 27:40.025 align:left position:15%,start line:5% size:75%
a different kind of
nomination, what about that?

27:40.125 --> 27:41.259 align:left position:22.5%,start line:89% size:67.5%
And McConnell said no,

27:41.359 --> 27:43.094 align:left position:25%,start line:83% size:65%
I said this president
isn't gonna make it.

27:43.194 --> 27:47.065 align:left position:17.5%,start line:83% size:72.5%
Again, nothing about
principle, in any of that.

27:47.165 --> 27:48.800 align:left position:20%,start line:83% size:70%
And so if you wanna
make it about principle,

27:48.900 --> 27:52.904 align:left position:22.5%,start line:83% size:67.5%
my suggestion would be,
make it about principle.

27:54.372 --> 27:57.442 align:left position:17.5%,start line:83% size:72.5%
Make it openly, and
expressly about a principle

27:57.542 --> 27:58.943 align:left position:30%,start line:89% size:60%
of jurisprudence.

28:00.145 --> 28:01.479 align:left position:30%,start line:5% size:60%
But the fact is,

28:02.714 --> 28:05.717 align:left position:25%,start line:5% size:65%
that Supreme Court
confirmation process

28:05.817 --> 28:07.285 align:left position:40%,start line:89% size:50%
is a very

28:07.385 --> 28:08.386 align:left position:35%,start line:89% size:55%
tough place,

28:09.888 --> 28:12.057 align:left position:22.5%,start line:89% size:67.5%
it's a very tough place

28:12.157 --> 28:15.927 align:left position:25%,start line:83% size:65%
to make very neat and
careful distinctions

28:16.027 --> 28:18.630 align:left position:10%,start line:89% size:80%
among people's outlooks based on

28:18.730 --> 28:20.765 align:left position:12.5%,start line:89% size:77.5%
how you think they would vote.

28:20.865 --> 28:24.669 align:left position:15%,start line:83% size:75%
The people that have run
into trouble in the process,

28:24.769 --> 28:27.072 align:left position:10%,start line:89% size:80%
have not really run into trouble

28:27.172 --> 28:28.506 align:left position:30%,start line:89% size:60%
because they had

28:31.242 --> 28:35.013 align:left position:22.5%,start line:83% size:67.5%
I think, because of
ultimately problematic

28:35.113 --> 28:37.782 align:left position:10%,start line:89% size:80%
ideologies, I think it's because

28:39.551 --> 28:42.520 align:left position:20%,start line:83% size:70%
they ran into trouble for
a couple reasons, ethics

28:42.620 --> 28:43.855 align:left position:32.5%,start line:89% size:57.5%
was one reason.

28:44.856 --> 28:46.591 align:left position:12.5%,start line:89% size:77.5%
I think competency was another.

28:46.691 --> 28:51.162 align:left position:20%,start line:5% size:70%
And then another, I think
is that they simply were,

28:51.262 --> 28:52.497 align:left position:32.5%,start line:5% size:57.5%
to some extent,

28:54.032 --> 28:57.969 align:left position:17.5%,start line:83% size:72.5%
way outside the mainstream
in terms of what was

28:58.069 --> 28:59.571 align:left position:37.5%,start line:89% size:52.5%
acceptable

28:59.671 --> 29:01.873 align:left position:17.5%,start line:89% size:72.5%
or public approved sort of

29:03.608 --> 29:05.009 align:left position:32.5%,start line:89% size:57.5%
jurisprudence.

29:05.110 --> 29:09.280 align:left position:15%,start line:83% size:75%
John Parker, as you may know,
nominee from North Carolina,

29:09.380 --> 29:11.783 align:left position:10%,start line:83% size:80%
he was on the First Circuit,
rejected for the Supreme Court.

29:11.883 --> 29:14.853 align:left position:20%,start line:83% size:70%
Parker was rejected
because he had views on,

29:14.953 --> 29:16.654 align:left position:10%,start line:89% size:80%
not just segregation, but labor,

29:16.755 --> 29:18.423 align:left position:20%,start line:89% size:70%
that were thought to be,

29:18.523 --> 29:22.293 align:left position:20%,start line:83% size:70%
at least by the Senate at
that time, unacceptable.

29:22.393 --> 29:26.431 align:left position:15%,start line:83% size:75%
And Judge Bork, who was an
imminently qualified nominee,

29:26.531 --> 29:27.966 align:left position:30%,start line:83% size:60%
is the other kind
of poster child

29:28.066 --> 29:30.135 align:left position:15%,start line:89% size:75%
that's oftentimes brought up,

29:30.235 --> 29:33.138 align:left position:15%,start line:89% size:75%
but I'm actually of the view

29:33.238 --> 29:36.074 align:left position:20%,start line:83% size:70%
that Judge Bork's biggest
problem was Judge Bork.

29:36.174 --> 29:37.776 align:left position:27.5%,start line:89% size:62.5%
(audience laughing)

29:37.876 --> 29:40.612 align:left position:15%,start line:83% size:75%
And I've said this, both when
I've worked in the Senate,

29:40.712 --> 29:43.214 align:left position:15%,start line:83% size:75%
and other places, 'cause
when I worked in the Senate,

29:43.314 --> 29:45.917 align:left position:25%,start line:5% size:65%
lots of people would
come up to me and say

29:46.017 --> 29:47.152 align:left position:25%,start line:5% size:65%
well why can't we
make these hearings,

29:47.252 --> 29:48.887 align:left position:22.5%,start line:5% size:67.5%
like the Bork hearings
and everything else?

29:48.987 --> 29:51.489 align:left position:15%,start line:89% size:75%
And after I finish laughing,

29:51.589 --> 29:54.092 align:left position:22.5%,start line:83% size:67.5%
I would say, well there
are a couple reasons.

29:54.192 --> 29:57.729 align:left position:15%,start line:83% size:75%
The first is, that the
objective on the Senate side

29:57.829 --> 29:59.330 align:left position:17.5%,start line:83% size:72.5%
if you're in the majority,
and you want somebody

29:59.430 --> 30:04.269 align:left position:20%,start line:83% size:70%
confirmed, is not to make
it into a popular TV show.

30:04.369 --> 30:05.837 align:left position:30%,start line:83% size:60%
You want it to be
the least watched,

30:05.937 --> 30:10.108 align:left position:17.5%,start line:83% size:72.5%
most boring production you
could possibly imagine.

30:11.576 --> 30:14.179 align:left position:30%,start line:83% size:60%
You may not quote
me on this, but,

30:14.279 --> 30:16.681 align:left position:12.5%,start line:89% size:77.5%
I will say during the course of

30:16.781 --> 30:18.650 align:left position:27.5%,start line:83% size:62.5%
one of the hearings
in which I worked,

30:18.750 --> 30:21.786 align:left position:17.5%,start line:83% size:72.5%
somebody, one of the staffs
came to me and it was

30:21.886 --> 30:24.322 align:left position:17.5%,start line:83% size:72.5%
in the heat of the moment,
they said "Oh good,

30:24.422 --> 30:26.491 align:left position:15%,start line:89% size:75%
"Michael Jackson just died."

30:26.591 --> 30:28.126 align:left position:27.5%,start line:89% size:62.5%
(audience laughing)

30:28.226 --> 30:30.128 align:left position:20%,start line:89% size:70%
Why would they say that?

30:30.228 --> 30:33.298 align:left position:30%,start line:83% size:60%
Because it took
the cameras away.

30:33.398 --> 30:37.035 align:left position:27.5%,start line:83% size:62.5%
And that made it
even less volatile,

30:37.135 --> 30:41.306 align:left position:20%,start line:5% size:70%
made it less prone to any
kind of public interest.

30:42.874 --> 30:44.676 align:left position:30%,start line:83% size:60%
Lawyers will tell
you if you have,

30:44.776 --> 30:46.444 align:left position:17.5%,start line:83% size:72.5%
and you're lucky if you're
never heard this before,

30:46.544 --> 30:47.745 align:left position:25%,start line:83% size:65%
lawyers will tell you
if you have to testify

30:47.846 --> 30:49.714 align:left position:22.5%,start line:83% size:67.5%
or anything else, what
you should be doing,

30:49.814 --> 30:51.916 align:left position:17.5%,start line:83% size:72.5%
is you should be giving the
shortest succinct statement

30:52.016 --> 30:54.319 align:left position:27.5%,start line:83% size:62.5%
you can in response
to a question.

30:54.419 --> 30:56.654 align:left position:17.5%,start line:83% size:72.5%
I should say, the
shortest, honest, succinct

30:56.754 --> 30:57.655 align:left position:20%,start line:89% size:70%
statement in response...

30:57.755 --> 30:59.490 align:left position:27.5%,start line:89% size:62.5%
(audience laughing)

30:59.591 --> 31:01.759 align:left position:17.5%,start line:89% size:72.5%
That is not what Bork did.

31:03.027 --> 31:04.662 align:left position:25%,start line:83% size:65%
And what we would say
to any nominee today,

31:04.762 --> 31:07.532 align:left position:17.5%,start line:83% size:72.5%
Republican or Democrat,
doesn't matter what party,

31:07.632 --> 31:09.000 align:left position:37.5%,start line:89% size:52.5%
is shut up.

31:09.100 --> 31:10.435 align:left position:27.5%,start line:89% size:62.5%
(audience laughing)

31:10.535 --> 31:12.804 align:left position:20%,start line:89% size:70%
And so I often think of,

31:12.904 --> 31:14.239 align:left position:30%,start line:83% size:60%
a friend of mine
from law school,

31:14.339 --> 31:16.341 align:left position:15%,start line:83% size:75%
and I tell this to my
legislative process classes,

31:16.441 --> 31:18.309 align:left position:10%,start line:83% size:80%
it's one of my favorite
moments in legislative process,

31:18.409 --> 31:20.445 align:left position:22.5%,start line:83% size:67.5%
'cause it really
illustrates this point,

31:20.545 --> 31:22.113 align:left position:22.5%,start line:83% size:67.5%
my best friend from
law school clerked for

31:22.213 --> 31:24.816 align:left position:27.5%,start line:83% size:62.5%
somebody named Ruth
Bader Ginsburg.

31:24.916 --> 31:27.719 align:left position:17.5%,start line:83% size:72.5%
And when she was nominated
to the Supreme Court,

31:27.819 --> 31:30.622 align:left position:12.5%,start line:83% size:77.5%
she had asked my friend,
essentially to be her counsel.

31:30.722 --> 31:34.259 align:left position:20%,start line:5% size:70%
And if you go back, and
you could see this on TV,

31:34.359 --> 31:35.760 align:left position:15%,start line:5% size:75%
and there's a point in which,

31:35.860 --> 31:37.729 align:left position:25%,start line:83% size:65%
then Chairman Biden
asked her a question.

31:37.829 --> 31:39.097 align:left position:20%,start line:83% size:70%
As you could imagine,
Chairman Biden's question

31:39.197 --> 31:41.232 align:left position:17.5%,start line:89% size:72.5%
goes on for quite a while.

31:41.332 --> 31:44.035 align:left position:27.5%,start line:83% size:62.5%
And he goes on and
on for some time.

31:44.135 --> 31:44.969 align:left position:40%,start line:89% size:50%
And then,

31:46.404 --> 31:50.808 align:left position:15%,start line:83% size:75%
he stops, and he says to
her, do you have a response?

31:50.909 --> 31:52.076 align:left position:20%,start line:89% size:70%
Anything you want to say?

31:52.176 --> 31:53.578 align:left position:17.5%,start line:89% size:72.5%
And then she looks at him,

31:53.678 --> 31:55.780 align:left position:27.5%,start line:83% size:62.5%
and then she leans
back, talks to my,

31:55.880 --> 31:57.048 align:left position:15%,start line:89% size:75%
they whisper back and forth.

31:57.148 --> 31:59.083 align:left position:22.5%,start line:83% size:67.5%
Then she leans forward
and goes, "No senator."

31:59.183 --> 32:00.685 align:left position:27.5%,start line:89% size:62.5%
(audience laughing)

32:00.785 --> 32:01.953 align:left position:15%,start line:89% size:75%
That is why she's sitting on

32:02.053 --> 32:03.254 align:left position:25%,start line:83% size:65%
the Supreme Court of
the United States.

32:03.354 --> 32:04.789 align:left position:27.5%,start line:89% size:62.5%
(audience laughing)

32:04.889 --> 32:07.458 align:left position:17.5%,start line:83% size:72.5%
You know when to talk, and
you know when not to talk.

32:07.558 --> 32:11.162 align:left position:15%,start line:83% size:75%
That is not the moment to
start going off on a tangent,

32:11.262 --> 32:12.363 align:left position:30%,start line:89% size:60%
or anything else.

32:12.463 --> 32:13.598 align:left position:27.5%,start line:83% size:62.5%
That is exactly
the moment you say,

32:13.698 --> 32:16.334 align:left position:30%,start line:5% size:60%
no senator, I got
nothing to say.

32:16.434 --> 32:19.437 align:left position:27.5%,start line:5% size:62.5%
And that's exactly
what, I think,

32:19.537 --> 32:22.273 align:left position:17.5%,start line:83% size:72.5%
that is one of the lessons
from the Bork hearings.

32:22.373 --> 32:23.474 align:left position:27.5%,start line:83% size:62.5%
The lesson isn't,
oh, let's make them

32:23.574 --> 32:25.476 align:left position:20%,start line:89% size:70%
as dramatic as possible.

32:25.576 --> 32:27.245 align:left position:27.5%,start line:83% size:62.5%
The lesson is let's
make them as boring

32:27.345 --> 32:29.714 align:left position:10%,start line:89% size:80%
and non substantive as possible.

32:29.814 --> 32:30.648 align:left position:47.5%,start line:89% size:42.5%
So,

32:31.916 --> 32:33.651 align:left position:27.5%,start line:89% size:62.5%
if that's the case,

32:33.751 --> 32:35.320 align:left position:10%,start line:89% size:80%
then it's really hard to imagine

32:35.420 --> 32:37.488 align:left position:17.5%,start line:83% size:72.5%
you can turn a Supreme
Court confirmation hearing

32:37.588 --> 32:39.457 align:left position:20%,start line:89% size:70%
into some kind of seminar

32:39.557 --> 32:42.760 align:left position:27.5%,start line:83% size:62.5%
on how to interpret
the Constitution.

32:42.860 --> 32:44.295 align:left position:25%,start line:89% size:65%
It's not gonna work.

32:44.395 --> 32:46.431 align:left position:20%,start line:83% size:70%
And plus, people's votes
are probably largely

32:46.531 --> 32:49.367 align:left position:17.5%,start line:83% size:72.5%
gonna track their political
partisanship anyway.

32:49.467 --> 32:50.868 align:left position:15%,start line:89% size:75%
So when all is said and done,

32:50.969 --> 32:53.671 align:left position:22.5%,start line:5% size:67.5%
it's a very hard thing
to point to to say

32:53.771 --> 32:56.975 align:left position:15%,start line:5% size:75%
oh that's gonna vindicate
this outlook or that outlook.

32:57.075 --> 32:58.810 align:left position:15%,start line:83% size:75%
The fact is we've had
somewhat conservative people

32:58.910 --> 33:00.878 align:left position:20%,start line:83% size:70%
confirmed over the years,
somewhat liberal people

33:00.979 --> 33:02.814 align:left position:15%,start line:83% size:75%
confirmed over the years,
and if you want to talk about

33:02.914 --> 33:04.949 align:left position:15%,start line:89% size:75%
the two most vicious hearings

33:05.049 --> 33:07.618 align:left position:15%,start line:83% size:75%
in the history of the
United States Supreme Court,

33:07.719 --> 33:11.289 align:left position:25%,start line:83% size:65%
I think in some ways
Bork finishes third.

33:11.389 --> 33:13.224 align:left position:22.5%,start line:83% size:67.5%
The two most vicious
Supreme Court hearings

33:13.324 --> 33:17.695 align:left position:15%,start line:83% size:75%
in American history, involve,
first Louis Brandeis,

33:17.795 --> 33:19.630 align:left position:17.5%,start line:83% size:72.5%
hearings that lasted over
six months and were infused

33:19.731 --> 33:21.232 align:left position:27.5%,start line:89% size:62.5%
with antisemitism.

33:23.735 --> 33:27.572 align:left position:25%,start line:83% size:65%
And, the hearings for
Thurgood Marshall.

33:27.672 --> 33:30.608 align:left position:17.5%,start line:89% size:72.5%
And I would say, those two,

33:30.708 --> 33:34.612 align:left position:25%,start line:83% size:65%
probably, are the two
most distinguished

33:34.712 --> 33:38.616 align:left position:15%,start line:83% size:75%
lawyers and judicial
nominees in the 20th century.

33:38.716 --> 33:41.152 align:left position:20%,start line:83% size:70%
And those hearings could
not have been uglier.

33:41.252 --> 33:44.956 align:left position:15%,start line:5% size:75%
And at one point President
Wilson goes to Louis Brandeis

33:45.056 --> 33:49.594 align:left position:12.5%,start line:5% size:77.5%
and says, "Look, you're
getting beat up in the Senate,

33:49.694 --> 33:50.661 align:left position:12.5%,start line:89% size:77.5%
"do you want to come forward?"

33:50.762 --> 33:52.063 align:left position:27.5%,start line:89% size:62.5%
And he goes, "No!"

33:52.163 --> 33:55.533 align:left position:17.5%,start line:83% size:72.5%
Exactly the same as Justice
Ginsberg's response.

33:55.633 --> 33:57.435 align:left position:20%,start line:83% size:70%
Which is, you know,
Brandeis understood that

33:57.535 --> 34:00.371 align:left position:27.5%,start line:83% size:62.5%
there's nothing to
be gained really,

34:00.471 --> 34:02.106 align:left position:20%,start line:83% size:70%
or you've gotta be really
careful about this,

34:02.206 --> 34:04.542 align:left position:15%,start line:83% size:75%
but not much to be gained
by going into the lion's den

34:04.642 --> 34:06.477 align:left position:27.5%,start line:89% size:62.5%
like that, and then

34:06.577 --> 34:08.312 align:left position:22.5%,start line:83% size:67.5%
allowing yourself to
become a punching bag.

34:08.413 --> 34:10.281 align:left position:25%,start line:83% size:65%
So I'm not convinced
the hearings

34:10.381 --> 34:11.849 align:left position:15%,start line:89% size:75%
are gonna become an elevated

34:11.949 --> 34:14.852 align:left position:20%,start line:83% size:70%
seminar on constitutional
law, anytime soon,

34:14.952 --> 34:16.487 align:left position:22.5%,start line:89% size:67.5%
unless, as I often say,

34:16.587 --> 34:19.357 align:left position:22.5%,start line:83% size:67.5%
the nominee really
likes his current job.

34:19.457 --> 34:21.559 align:left position:27.5%,start line:89% size:62.5%
(audience laughing)

34:21.659 --> 34:23.694 align:left position:30%,start line:89% size:60%
If that happens,

34:23.795 --> 34:26.030 align:left position:15%,start line:83% size:75%
I mean if you really, really
love being on the DC Circuit,

34:26.130 --> 34:27.465 align:left position:30%,start line:89% size:60%
go ahead, do it.

34:28.633 --> 34:32.203 align:left position:27.5%,start line:83% size:62.5%
But you don't go in
there and open up,

34:32.303 --> 34:34.972 align:left position:10%,start line:5% size:80%
and talk more than the senators,

34:36.140 --> 34:39.010 align:left position:22.5%,start line:83% size:67.5%
unless you're prepared
to be rejected.

34:39.110 --> 34:42.246 align:left position:15%,start line:83% size:75%
'Cause the more you say,
the more you get in trouble.

34:42.346 --> 34:44.115 align:left position:15%,start line:83% size:75%
- [Voiceover] North Carolina
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34:44.215 --> 34:46.918 align:left position:12.5%,start line:83% size:77.5%
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34:47.018 --> 34:49.620 align:left position:12.5%,start line:89% size:77.5%
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