1 00:00:02,102 --> 00:00:05,105 (audience applause) 2 00:00:06,239 --> 00:00:08,141 - Well thank you so much, Rob. 3 00:00:08,241 --> 00:00:11,611 Thank you for the enormous honor of being able 4 00:00:11,711 --> 00:00:13,313 to visit with you all today. 5 00:00:13,413 --> 00:00:17,350 And to talk about a subject of mutual interest. 6 00:00:18,685 --> 00:00:20,353 I have to begin with 7 00:00:21,221 --> 00:00:22,288 a disclaimer. 8 00:00:23,590 --> 00:00:25,358 I am not gonna talk about HB2. 9 00:00:25,458 --> 00:00:27,427 (audience laughing) 10 00:00:27,527 --> 00:00:30,797 - [Voiceover] Not till the question section at least. 11 00:00:30,897 --> 00:00:32,799 - Except for one thing. 12 00:00:33,933 --> 00:00:36,436 It's too compelling to ignore. 13 00:00:37,971 --> 00:00:40,907 So I am here in Raleigh, of course, 14 00:00:42,475 --> 00:00:46,279 here at the NC Policy Watch, and actually here 15 00:00:46,379 --> 00:00:50,517 to talk to a group I suspect needs no introduction to 16 00:00:50,617 --> 00:00:53,186 controversies, particularly constitutional controversies 17 00:00:53,286 --> 00:00:56,489 in the state of North Carolina. 18 00:00:56,589 --> 00:01:00,393 I will have to tell you that Amendment 1, HB2 19 00:01:00,493 --> 00:01:04,497 and the Senate obstruction of President Obama's nomination 20 00:01:04,597 --> 00:01:08,635 to the Supreme Court, all have one thing in common, 21 00:01:08,735 --> 00:01:11,838 they will all fail. - [Voiceover] Yay! 22 00:01:12,739 --> 00:01:14,674 (light applause) 23 00:01:14,774 --> 00:01:18,578 - And they'll all fail for similar reasons. 24 00:01:18,678 --> 00:01:23,416 To begin with, they're on the wrong side of history. 25 00:01:23,516 --> 00:01:27,687 Beyond that, the American people don't support them. 26 00:01:28,855 --> 00:01:31,257 And even beyond that, they're all grounded in 27 00:01:31,357 --> 00:01:36,196 very base, hoarse, impulses, rather than the things 28 00:01:36,296 --> 00:01:38,531 that define the best of us. 29 00:01:41,000 --> 00:01:43,336 The support that you'll hear and know about 30 00:01:43,436 --> 00:01:45,338 when it comes to the Senate's obstruction of 31 00:01:45,438 --> 00:01:47,740 Merrick Garland's nomination to the Supreme Court, 32 00:01:47,841 --> 00:01:49,275 is largely driven 33 00:01:50,210 --> 00:01:52,245 by partisanship, 34 00:01:52,345 --> 00:01:55,014 and lacks support in history, 35 00:01:55,115 --> 00:01:57,951 The Constitution's text and logic, 36 00:01:58,918 --> 00:02:01,254 and that's not a good start. 37 00:02:02,455 --> 00:02:04,190 I hope it will be of some interest to you 38 00:02:04,290 --> 00:02:06,493 to talk a little bit about the sort of 39 00:02:06,593 --> 00:02:09,863 basic process for Supreme Court nominations, 40 00:02:09,963 --> 00:02:12,932 and some of the basic issues relating to that process. 41 00:02:13,032 --> 00:02:15,702 And then of course we can talk further about it, 42 00:02:15,802 --> 00:02:18,605 if you have questions or comments. 43 00:02:18,705 --> 00:02:20,206 But to begin with, 44 00:02:21,274 --> 00:02:22,208 we all know 45 00:02:23,643 --> 00:02:25,245 the tiny little bit the Unites States Constitution 46 00:02:25,345 --> 00:02:27,046 has to say about this. 47 00:02:27,147 --> 00:02:30,550 The Constitution says that the president has the power, 48 00:02:30,650 --> 00:02:32,952 the authority to appoint, 49 00:02:33,052 --> 00:02:36,456 with the advice, consent of the Senate, 50 00:02:36,556 --> 00:02:39,526 justices to the United States Supreme Court. 51 00:02:39,626 --> 00:02:42,862 And so, President Obama obviously has done his part, 52 00:02:42,962 --> 00:02:45,598 he's nominated somebody to fill the vacancy 53 00:02:45,698 --> 00:02:47,634 left by Justice Scalia. 54 00:02:49,569 --> 00:02:53,706 And I should say, just somewhat parenthetically, 55 00:02:53,806 --> 00:02:55,742 but because I'm a law professor, 56 00:02:55,842 --> 00:02:57,944 the parenthetically is a little long. 57 00:02:58,044 --> 00:02:59,779 (audience laughing) 58 00:02:59,879 --> 00:03:04,150 I come to this with slightly mixed feelings. 59 00:03:04,250 --> 00:03:05,785 Justice Scalia was actually my 60 00:03:05,885 --> 00:03:08,454 constitutional law professor. 61 00:03:08,555 --> 00:03:11,224 And I have known him, or had known him 62 00:03:11,324 --> 00:03:12,158 for 63 00:03:13,693 --> 00:03:15,295 over three decades. 64 00:03:16,462 --> 00:03:19,098 And actually I had helped schedule 65 00:03:19,199 --> 00:03:21,100 one of his last public appearances which happened 66 00:03:21,201 --> 00:03:24,037 at the Union League in Philadelphia, 67 00:03:24,137 --> 00:03:26,039 in which we had the opportunity to talk 68 00:03:26,139 --> 00:03:29,242 briefly, and he was always, to his credit, 69 00:03:29,342 --> 00:03:32,178 very cordial to me, very tolerant. 70 00:03:33,713 --> 00:03:36,015 Knowing that I didn't always agree with him. 71 00:03:36,115 --> 00:03:38,785 In fact, the very last thing he said to me was, 72 00:03:38,885 --> 00:03:41,254 "Professor Gerhardt, how am I doing?" 73 00:03:41,354 --> 00:03:42,488 He would always say that with a twinkle in his eye 74 00:03:42,589 --> 00:03:44,057 and a smile on his face. 75 00:03:44,157 --> 00:03:46,359 And I said "Justice Scalia, we just don't have enough time 76 00:03:46,459 --> 00:03:47,560 "to talk about that." 77 00:03:47,660 --> 00:03:49,395 (audience laughing) 78 00:03:49,495 --> 00:03:51,731 And he, of course, laughed. 79 00:03:54,133 --> 00:03:54,968 And so, 80 00:03:56,936 --> 00:03:59,839 I don't talk about any of this with any great deal of 81 00:03:59,939 --> 00:04:01,274 personal relish. 82 00:04:02,976 --> 00:04:06,079 The circumstances that often give rise to vacancies, 83 00:04:06,179 --> 00:04:08,848 are, in a very real sense, tragic ones, 84 00:04:08,948 --> 00:04:13,119 unfortunate ones, but, inevitable ones, often times. 85 00:04:14,320 --> 00:04:18,258 And it so happens that when we talk about 86 00:04:18,358 --> 00:04:21,127 Justice Scalia's vacancy, 87 00:04:21,227 --> 00:04:24,063 it's important, I think, to define at the outset, 88 00:04:24,163 --> 00:04:27,033 even before we talk about the actual process, 89 00:04:27,133 --> 00:04:29,636 the context in which it arose. 90 00:04:31,004 --> 00:04:34,540 So justice Scalia died, as Rob reminded us, 91 00:04:34,641 --> 00:04:35,808 February 13th. 92 00:04:37,377 --> 00:04:40,613 And what is, I think, particularly significant 93 00:04:40,713 --> 00:04:44,250 about that is more than one thing. 94 00:04:44,350 --> 00:04:46,252 Nobody saw this coming. 95 00:04:47,787 --> 00:04:50,590 And I think you cannot forget that fact. 96 00:04:50,690 --> 00:04:53,993 I happened to be at a conference in Atlanta 97 00:04:54,093 --> 00:04:56,729 on the Thursday and Friday preceding, 98 00:04:56,829 --> 00:04:59,732 and one of the last panels at that conference 99 00:04:59,832 --> 00:05:02,869 involved three of the nation's leading 100 00:05:02,969 --> 00:05:05,972 journalists covering the United States Supreme Court, 101 00:05:06,072 --> 00:05:08,341 including Dahlia Lithwick from Slate, 102 00:05:08,441 --> 00:05:10,109 Bob Barnes from the Washington Post, 103 00:05:10,209 --> 00:05:12,812 and Adam Liptack from the New York Times. 104 00:05:12,912 --> 00:05:16,683 And as Adam would tell you and I was there to see this 105 00:05:16,783 --> 00:05:18,384 and know it's true, 106 00:05:20,420 --> 00:05:21,821 on this last panel somebody said, 107 00:05:21,921 --> 00:05:23,756 will the Supreme Court be an issue 108 00:05:23,856 --> 00:05:25,258 in this upcoming election? 109 00:05:25,358 --> 00:05:28,561 And Adam, fast out of the box said "There's no way 110 00:05:28,661 --> 00:05:30,330 "it's gonna be an issue. 111 00:05:30,430 --> 00:05:34,967 "Nobody is sick or dying, we don't expect a vacancy. 112 00:05:35,068 --> 00:05:36,502 "And people have said for decades, 113 00:05:36,602 --> 00:05:38,137 "in a lotta years it's gonna be an issue 114 00:05:38,237 --> 00:05:40,740 "in the campaigns and it turned out never quite to be." 115 00:05:40,840 --> 00:05:42,775 He said this on Friday. 116 00:05:42,875 --> 00:05:46,312 Then on Saturday he was headed from Atlanta to St Louis, 117 00:05:46,412 --> 00:05:47,413 where he was 118 00:05:48,548 --> 00:05:50,116 conducting a really special class at 119 00:05:50,216 --> 00:05:52,385 Washington University in St Louis, 120 00:05:52,485 --> 00:05:54,354 on the Supreme Court, and so he was in class 121 00:05:54,454 --> 00:05:58,024 all day on Saturday, and had turned his phone off. 122 00:05:58,124 --> 00:05:58,958 And, 123 00:06:00,560 --> 00:06:03,396 so if you want to know why the New York Times story 124 00:06:03,496 --> 00:06:05,365 on Justice Scalia doesn't show up until 125 00:06:05,465 --> 00:06:08,634 four AM on Sunday morning, it's because Adam didn't 126 00:06:08,735 --> 00:06:11,938 turn his phone on until about six PM. 127 00:06:12,038 --> 00:06:14,006 And then he turned his phone on and, 128 00:06:14,107 --> 00:06:16,609 you know, excuse my French, all hell breaks loose. 129 00:06:16,709 --> 00:06:18,144 And he realizes, 130 00:06:18,244 --> 00:06:20,380 he's got messages, his phone's about to burst 131 00:06:20,480 --> 00:06:22,949 and everything else, and the entire world of 132 00:06:23,049 --> 00:06:25,284 constitutional law changed. 133 00:06:26,419 --> 00:06:28,755 And what you are largely witnessing, 134 00:06:28,855 --> 00:06:32,959 sort of to tell you one of the takeaways on this, 135 00:06:33,960 --> 00:06:35,161 is, 136 00:06:35,261 --> 00:06:39,132 what happens when your national leaders 137 00:06:39,232 --> 00:06:40,900 decide to improvise. 138 00:06:42,368 --> 00:06:44,270 And much of what you've been watching over the 139 00:06:44,370 --> 00:06:48,241 last several months, is a number of senators and others 140 00:06:48,341 --> 00:06:51,677 improvising in response to this vacancy. 141 00:06:53,212 --> 00:06:55,715 They didn't see it coming, they didn't have exactly 142 00:06:55,815 --> 00:06:58,851 a game plan or strategy in place to deal with this, 143 00:06:58,951 --> 00:07:01,921 and the same is true for the other side. 144 00:07:02,021 --> 00:07:03,990 And so a lot of what we're seeing is literally 145 00:07:04,090 --> 00:07:06,859 being made up on the spot. 146 00:07:06,959 --> 00:07:09,128 If it seems not well thought through, 147 00:07:09,228 --> 00:07:13,032 it seems like people haven't really sort of 148 00:07:13,132 --> 00:07:15,301 considered this very deeply or thoroughly, 149 00:07:15,401 --> 00:07:17,570 it's because they haven't. 150 00:07:19,005 --> 00:07:23,109 And so, really from the very beginning we've seen 151 00:07:23,209 --> 00:07:27,780 the parties, in a sense, divide on this pretty quickly. 152 00:07:27,880 --> 00:07:30,683 And one of the critical reasons for that is because of 153 00:07:30,783 --> 00:07:33,252 the part of the Constitution I just told you. 154 00:07:33,352 --> 00:07:37,290 The president nominates Supreme Court Justices, 155 00:07:37,390 --> 00:07:41,360 but with the advice and consent of the Senate. 156 00:07:41,461 --> 00:07:45,631 And the Senate, with 55 seats, controlled by Republicans, 157 00:07:46,766 --> 00:07:48,267 is more than aware 158 00:07:50,002 --> 00:07:52,638 that this is going to be a transformative appointment 159 00:07:52,738 --> 00:07:55,308 to the United States Supreme Court. 160 00:07:55,408 --> 00:07:57,510 That's no secret. 161 00:07:57,610 --> 00:08:00,813 Everybody understands that whoever replaces 162 00:08:00,913 --> 00:08:05,017 Justice Scalia is gonna make a tremendous difference 163 00:08:05,117 --> 00:08:06,352 in the future of constitutional law. 164 00:08:06,452 --> 00:08:09,288 And just to put it in some perspective, 165 00:08:09,388 --> 00:08:11,591 I mentioned, Justice Scalia being one of my 166 00:08:11,691 --> 00:08:13,659 constitutional law professors, and up until the day he died 167 00:08:13,759 --> 00:08:15,695 had literally shaped the role of constitutional law 168 00:08:15,795 --> 00:08:17,363 that I taught and lived in. 169 00:08:17,463 --> 00:08:22,001 That we all sort of taught, and I suppose and lived in. 170 00:08:22,101 --> 00:08:22,935 And, 171 00:08:24,136 --> 00:08:27,540 that court of which he was a member had been 172 00:08:27,640 --> 00:08:30,977 shaped by Republican presidents, and had not 173 00:08:31,077 --> 00:08:33,145 been dominated by or had a majority of 174 00:08:33,246 --> 00:08:36,916 Democratic appointees for over four decades. 175 00:08:39,252 --> 00:08:41,020 We have not lived in a time 176 00:08:41,120 --> 00:08:43,756 when there was a majority of democratic appointees 177 00:08:43,856 --> 00:08:46,859 to the Supreme Court until, 178 00:08:46,959 --> 00:08:48,561 when I was in law school, and before. 179 00:08:48,661 --> 00:08:51,063 That dates me to some extent. 180 00:08:52,532 --> 00:08:53,666 But, 181 00:08:53,766 --> 00:08:58,004 it's worth thinking about what that means. 182 00:08:58,104 --> 00:09:01,908 That, again, really underscores the fact 183 00:09:02,008 --> 00:09:05,545 that this is not just your sort of everyday 184 00:09:05,645 --> 00:09:06,479 appointment to the Supreme Court, 185 00:09:06,579 --> 00:09:09,515 as if there were any such thing, 186 00:09:09,615 --> 00:09:12,018 now or forever in the future. 187 00:09:14,186 --> 00:09:16,756 This is really just the beginning of a holy war. 188 00:09:16,856 --> 00:09:20,426 This is the beginning of thermonuclear war. 189 00:09:21,527 --> 00:09:23,863 This is an appointment 190 00:09:23,963 --> 00:09:26,165 that each side understands, 191 00:09:26,265 --> 00:09:29,001 almost everything they stand for and care about 192 00:09:29,101 --> 00:09:30,703 is at stake. 193 00:09:30,803 --> 00:09:33,706 So if they fight over it, it shouldn't be 194 00:09:33,806 --> 00:09:35,908 the least bit surprising. 195 00:09:36,008 --> 00:09:39,045 A process that puts the president and senators in control, 196 00:09:39,145 --> 00:09:41,480 is necessarily a political process. 197 00:09:41,581 --> 00:09:42,982 So we shouldn't be surprised that 198 00:09:43,082 --> 00:09:47,386 partisanship and politics are part of it as well. 199 00:09:47,486 --> 00:09:49,088 That's the context. 200 00:09:50,556 --> 00:09:54,126 At the same time, we need to think about a second thing, 201 00:09:54,226 --> 00:09:56,128 which is, OK, what else 202 00:09:57,830 --> 00:09:59,198 do we know about this, 203 00:09:59,298 --> 00:10:00,900 and is there anything, of course, history could tell us? 204 00:10:01,000 --> 00:10:04,937 This is where some of the dialogue takes place. 205 00:10:05,037 --> 00:10:07,540 There's a lot of talk about what history has to teach us, 206 00:10:07,640 --> 00:10:09,475 if anything, about this, 207 00:10:09,575 --> 00:10:12,244 and I can only mention a couple things here. 208 00:10:12,345 --> 00:10:14,080 First is, I think, 209 00:10:14,180 --> 00:10:17,183 while there's some predisposition to 210 00:10:18,384 --> 00:10:22,388 invest history with some kind of sacred quality, 211 00:10:22,488 --> 00:10:23,556 we shouldn't. 212 00:10:24,690 --> 00:10:26,792 History doesn't bind us. 213 00:10:26,892 --> 00:10:29,228 History doesn't tell us what we should do. 214 00:10:29,328 --> 00:10:30,663 History might be able to tell us a little bit of 215 00:10:30,763 --> 00:10:33,532 what we could've done, or could do, 216 00:10:33,633 --> 00:10:37,703 but it doesn't tell us what we should do. 217 00:10:37,803 --> 00:10:41,807 And as we look to the past, we should keep that in mind. 218 00:10:41,907 --> 00:10:43,909 And you can see some of the improvisation 219 00:10:44,010 --> 00:10:46,078 on the part of Republican leaders, 220 00:10:46,178 --> 00:10:50,516 in that the rationale for the opposition has changed. 221 00:10:50,616 --> 00:10:53,285 Initially it was grounded in, 222 00:10:53,386 --> 00:10:55,254 the idea that we don't do this in 223 00:10:55,354 --> 00:10:57,089 presidential election years. 224 00:10:57,189 --> 00:10:58,357 The biggest problem with that is 225 00:10:58,457 --> 00:11:00,760 that's completely counter-historical. 226 00:11:00,860 --> 00:11:04,563 There's no history, at all, to support that. 227 00:11:05,765 --> 00:11:07,299 And I don't say that as just a partisan. 228 00:11:07,400 --> 00:11:11,671 I've worked in this process for many decades. 229 00:11:11,771 --> 00:11:15,341 Did have an opportunity to write a book on the subject, 230 00:11:15,441 --> 00:11:17,476 and more than just that, have had a chance 231 00:11:17,576 --> 00:11:19,445 to consult with senators on all this. 232 00:11:19,545 --> 00:11:20,713 And there's no 233 00:11:22,281 --> 00:11:23,716 support for the idea that 234 00:11:23,816 --> 00:11:25,951 during presidential election years, 235 00:11:26,052 --> 00:11:29,555 the Senate shuts down for business. 236 00:11:29,655 --> 00:11:31,757 That just doesn't happen. 237 00:11:32,692 --> 00:11:33,926 And, 238 00:11:34,026 --> 00:11:35,428 it is true 239 00:11:35,528 --> 00:11:38,130 that in the modern era, the Senate has slowed down 240 00:11:38,230 --> 00:11:40,366 when it comes to lower court nominations, 241 00:11:40,466 --> 00:11:43,903 but for those of us who care about distinctions, 242 00:11:44,003 --> 00:11:45,504 slowing down for lower court nominations 243 00:11:45,604 --> 00:11:46,972 is not the same thing 244 00:11:47,073 --> 00:11:50,209 as slowing down for Supreme Court nominations. 245 00:11:50,309 --> 00:11:53,045 And, in fact, over 20 presidents 246 00:11:54,447 --> 00:11:57,216 have made successful Supreme Court appointments 247 00:11:57,316 --> 00:12:01,554 to the Supreme Court, during presidential election years, 248 00:12:01,654 --> 00:12:03,489 or even as lame ducks. 249 00:12:04,757 --> 00:12:07,326 Now that's almost half. 250 00:12:07,426 --> 00:12:10,930 I'm not good at math, but it's almost half. 251 00:12:11,030 --> 00:12:12,698 Which is, a fact. 252 00:12:12,798 --> 00:12:14,867 So as we go through this, if there's anything else 253 00:12:14,967 --> 00:12:18,738 we can do, we can try and keep everybody honest by 254 00:12:18,838 --> 00:12:22,842 making sure that they get their history correct. 255 00:12:25,211 --> 00:12:29,081 When we do look at history, we can see a couple things, 256 00:12:29,181 --> 00:12:30,750 beyond what I've already said. 257 00:12:30,850 --> 00:12:33,419 Over the last 100 years, 258 00:12:33,519 --> 00:12:35,354 to the extent it is relevant, 259 00:12:35,454 --> 00:12:37,323 the Senate has actually taken action on 260 00:12:37,423 --> 00:12:39,658 every single Supreme Court nomination 261 00:12:39,759 --> 00:12:42,128 with the exception of two. 262 00:12:42,228 --> 00:12:43,996 And the only two times it didn't, 263 00:12:44,096 --> 00:12:47,933 were the two nominations that were withdrawn. 264 00:12:48,033 --> 00:12:50,369 President Reagan's nomination of Douglas Ginsburg, 265 00:12:50,469 --> 00:12:53,472 withdrawn within nine days of that nomination, 266 00:12:53,572 --> 00:12:54,707 and President George W Bush's 267 00:12:54,807 --> 00:12:56,942 withdrawal of Harriet Miers' nomination 268 00:12:57,042 --> 00:13:01,313 which also was trying to break that record of nine days. 269 00:13:01,413 --> 00:13:06,051 And otherwise, every other Supreme Court nomination 270 00:13:06,152 --> 00:13:09,321 has actually had Senate consideration. 271 00:13:11,290 --> 00:13:14,393 A second thing, we even have Senate consideration 272 00:13:14,493 --> 00:13:18,430 of Supreme Court nominations during the Civil War, 273 00:13:18,531 --> 00:13:21,333 during World War I, During World War II, 274 00:13:21,433 --> 00:13:23,135 during the Great Depression. 275 00:13:23,235 --> 00:13:27,239 So the fact that there are important political 276 00:13:27,339 --> 00:13:30,843 and other events has not stopped the Senate 277 00:13:30,943 --> 00:13:33,979 from at least holding hearings, 278 00:13:34,079 --> 00:13:37,016 and giving consideration to the particular merits 279 00:13:37,116 --> 00:13:38,851 of a particular nomination. 280 00:13:38,951 --> 00:13:40,553 That's the history. 281 00:13:41,921 --> 00:13:44,123 Now when we move beyond that, we can ask the question, 282 00:13:44,223 --> 00:13:45,491 OK, 283 00:13:45,591 --> 00:13:48,794 Does the Senate have the power to do nothing? 284 00:13:48,894 --> 00:13:53,299 This is a very interesting question in the abstract. 285 00:13:53,399 --> 00:13:56,635 As a practical matter, it doesn't take much 286 00:13:56,735 --> 00:14:00,806 for the Senate to actually comply with it's oath. 287 00:14:02,675 --> 00:14:03,509 And so, 288 00:14:04,710 --> 00:14:07,713 there are times when the Senate does act, 289 00:14:07,813 --> 00:14:10,316 does give consideration, and in fact, 290 00:14:10,416 --> 00:14:11,984 may reject a nomination. 291 00:14:12,084 --> 00:14:14,486 Or does act, does give consideration, 292 00:14:14,587 --> 00:14:18,090 and in fact, after floor debate and whatever else, 293 00:14:18,190 --> 00:14:19,258 may not take a vote. 294 00:14:19,358 --> 00:14:21,160 That's happened a couple times. 295 00:14:21,260 --> 00:14:24,430 More often it's actually acted positively. 296 00:14:24,530 --> 00:14:26,232 As Geoffrey Stone, at the University of Chicago's Law School 297 00:14:26,332 --> 00:14:27,666 has pointed out, 298 00:14:28,534 --> 00:14:31,604 when you consider the record on 299 00:14:31,704 --> 00:14:33,973 how the nomination of a well-qualified, 300 00:14:34,073 --> 00:14:37,743 moderate nominee has fared, in modern times, 301 00:14:38,944 --> 00:14:42,114 they are confirmed 100% of the time. 302 00:14:43,282 --> 00:14:44,783 That's the record. 303 00:14:46,085 --> 00:14:46,919 And so, 304 00:14:48,454 --> 00:14:50,923 it's fair to say that to some extent, 305 00:14:51,023 --> 00:14:54,093 the Republican leadership is swimming upstream on this one, 306 00:14:54,193 --> 00:14:55,961 when it comes to, at least, historical trends 307 00:14:56,061 --> 00:14:58,297 or historical patterns. 308 00:14:58,397 --> 00:15:01,000 Other question about history that comes up, 309 00:15:01,100 --> 00:15:03,702 inevitably is, what's the closest analogy. 310 00:15:03,802 --> 00:15:07,706 Now this is always, this is a tough thing to answer, 311 00:15:07,806 --> 00:15:09,642 it's the kind of thing a law professor would ask, 312 00:15:09,742 --> 00:15:12,011 what's the closest analogy? 313 00:15:12,111 --> 00:15:15,147 And the secret, that I can tell you as a law professor, 314 00:15:15,247 --> 00:15:18,918 maybe April would agree is that there's no right answer. 315 00:15:19,018 --> 00:15:21,654 But some answers are more correct than others. 316 00:15:21,754 --> 00:15:23,188 (audience laughing) 317 00:15:23,289 --> 00:15:26,458 Now you can spend a lot of time thinking about that. 318 00:15:26,558 --> 00:15:27,393 And so, 319 00:15:29,662 --> 00:15:30,763 my estimation 320 00:15:32,331 --> 00:15:34,033 is that the closest analogy, 321 00:15:34,133 --> 00:15:36,635 the only thing that sort of seems to come, 322 00:15:36,735 --> 00:15:39,171 I think, anything remotely close, 323 00:15:39,271 --> 00:15:41,240 arose when Andrew Johnson was president. 324 00:15:41,340 --> 00:15:43,142 Now many of us probably don't remember that 325 00:15:43,242 --> 00:15:44,977 'cause we weren't here. 326 00:15:45,077 --> 00:15:49,248 If you were here then you should be the one speaking. 327 00:15:50,649 --> 00:15:52,718 And so, what happened when Andrew Johnson was president? 328 00:15:52,818 --> 00:15:56,322 Well, of course Andrew Johnson was Abraham Lincoln's 329 00:15:56,422 --> 00:15:58,958 second vice president, a man that Lincoln said 330 00:15:59,058 --> 00:16:02,428 after his inauguration, "Keep that man away from me." 331 00:16:02,528 --> 00:16:05,197 And so, Johnson becomes president 332 00:16:05,297 --> 00:16:08,067 because of the unfortunate and tragic assassination 333 00:16:08,167 --> 00:16:09,501 of President Lincoln. 334 00:16:09,601 --> 00:16:10,769 When Johnson becomes president, 335 00:16:10,869 --> 00:16:13,372 essentially nobody wants him to be president. 336 00:16:13,472 --> 00:16:15,674 And then he proceeded to alienate everybody. 337 00:16:15,774 --> 00:16:17,509 (audience laughing) 338 00:16:17,609 --> 00:16:21,380 And so the Republican leadership in the Senate and Congress 339 00:16:21,480 --> 00:16:24,817 at that time responded by passing a law. 340 00:16:26,218 --> 00:16:29,288 And in fact, the seats in the Supreme Court are created 341 00:16:29,388 --> 00:16:31,490 by Congress through legislation. 342 00:16:31,590 --> 00:16:36,328 So Congress passed a law which prospectively abolished 343 00:16:36,428 --> 00:16:38,397 the next two seats on the Supreme Court 344 00:16:38,497 --> 00:16:40,399 if their occupants died 345 00:16:42,301 --> 00:16:44,503 during that time period. 346 00:16:44,603 --> 00:16:46,939 So they didn't want Johnson to make the appointment. 347 00:16:47,039 --> 00:16:48,574 And in fact, there were two people that did, 348 00:16:48,674 --> 00:16:52,478 in fact, die, and their seats were then abolished. 349 00:16:52,578 --> 00:16:57,082 Johnson then is impeached and barely escapes conviction. 350 00:16:57,182 --> 00:17:00,552 He leaves the White House, Ulysses Grant comes in, 351 00:17:00,652 --> 00:17:04,390 and Congress recreates the two seats, and Grant fills them. 352 00:17:04,490 --> 00:17:06,992 That's the closest thing 353 00:17:07,092 --> 00:17:08,160 to analogy. 354 00:17:08,260 --> 00:17:09,762 Now if you want to make an analogy between 355 00:17:09,862 --> 00:17:14,466 Andrew Johnson and Barak Obama, I would say good luck. 356 00:17:14,566 --> 00:17:17,369 (audience laughing) 357 00:17:17,469 --> 00:17:19,038 If you want to think about the two people 358 00:17:19,138 --> 00:17:20,806 that had the highest 359 00:17:22,207 --> 00:17:26,145 number of votes publicly for President of the United States, 360 00:17:26,245 --> 00:17:29,915 the top two are Barak Obama and Barak Obama. 361 00:17:31,917 --> 00:17:33,318 Johnson got zero. 362 00:17:35,320 --> 00:17:38,624 And then you can just sort of go on from there. 363 00:17:38,724 --> 00:17:41,593 And so, we can look at some of the rationale, 364 00:17:41,693 --> 00:17:46,165 and I want to pick that apart and get to what I think is, 365 00:17:46,265 --> 00:17:48,967 I guess what I'd call the most credible rationale. 366 00:17:49,068 --> 00:17:52,171 So one rationale we've already heard which is, 367 00:17:52,271 --> 00:17:54,773 OK, we should let the next president of the United States 368 00:17:54,873 --> 00:17:56,475 make the nomination. 369 00:17:56,575 --> 00:17:59,244 And that's why we're doing this. 370 00:18:00,446 --> 00:18:01,313 I think, 371 00:18:02,514 --> 00:18:03,682 of course I have a lot of problems with that, 372 00:18:03,782 --> 00:18:05,150 one problem that I have with that is, 373 00:18:05,250 --> 00:18:09,188 I actually don't think the people who say it believe it. 374 00:18:09,288 --> 00:18:10,756 Because I think a lot of people who say 375 00:18:10,856 --> 00:18:12,091 that they don't want the next president 376 00:18:12,191 --> 00:18:13,892 to make the nomination would actually be 377 00:18:13,992 --> 00:18:16,795 perfectly happy voting against the nominee 378 00:18:16,895 --> 00:18:20,099 even once the next president got elected. 379 00:18:20,199 --> 00:18:23,969 For example, Pat Toomey from Pennsylvania, 380 00:18:24,069 --> 00:18:25,938 has said more than once, we should let the 381 00:18:26,038 --> 00:18:28,640 American people make that choice. 382 00:18:28,740 --> 00:18:31,844 Choose the president who's gonna make the next appointment. 383 00:18:31,944 --> 00:18:35,514 Well, when Pat Toomey came into the Senate, 384 00:18:36,715 --> 00:18:38,417 he then proceeded, less than two years after 385 00:18:38,517 --> 00:18:40,519 Barak Obama's first election's presidency 386 00:18:40,619 --> 00:18:43,689 to oppose Elena Kagan's nomination to the Supreme Court. 387 00:18:43,789 --> 00:18:47,793 Had nothing to do with the American people's preferences. 388 00:18:47,893 --> 00:18:51,296 So, so much for letting the president, in a sense, 389 00:18:51,396 --> 00:18:52,865 make that choice. 390 00:18:52,965 --> 00:18:55,701 And I don't think Senator Toomey believes that. 391 00:18:55,801 --> 00:18:58,570 In fact, he's gone on to say, no. 392 00:19:00,772 --> 00:19:02,574 There's a second rationale. 393 00:19:02,674 --> 00:19:06,845 The second rationale, and this cuts closer to home, 394 00:19:09,982 --> 00:19:14,153 is that the Senate needs to take extra special care 395 00:19:15,654 --> 00:19:19,324 because this is Justice Scalia's seat. 396 00:19:19,424 --> 00:19:22,361 And the court's split four to four, 397 00:19:23,228 --> 00:19:24,630 roughly down the middle, 398 00:19:24,730 --> 00:19:28,066 again, my math is always a little shaky. 399 00:19:29,234 --> 00:19:30,068 And so, 400 00:19:31,270 --> 00:19:34,106 because it's that seat, we need to, 401 00:19:34,206 --> 00:19:36,408 in a sense turn to the American people again 402 00:19:36,508 --> 00:19:38,210 to kind of have them 403 00:19:40,012 --> 00:19:42,147 validate the principle. 404 00:19:42,247 --> 00:19:43,582 Whatever principle it may be. 405 00:19:43,682 --> 00:19:46,185 For example, if the American people were to elect, 406 00:19:46,285 --> 00:19:48,654 I'm gonna just take a hypothetical, 407 00:19:48,754 --> 00:19:52,491 Ted Cruz, then presumably that nomination might look 408 00:19:52,591 --> 00:19:54,092 a little bit like what Justice Scalia did 409 00:19:54,193 --> 00:19:55,661 and maybe Senator Toomey would say, 410 00:19:55,761 --> 00:19:57,396 OK, that person looks like... 411 00:19:57,496 --> 00:19:59,998 I see some public support for that. 412 00:20:00,098 --> 00:20:02,668 And therefore I can go with it. 413 00:20:05,170 --> 00:20:07,406 This is just a variation of really of the first argument. 414 00:20:07,506 --> 00:20:10,142 I'm not terribly moved by this argument either. 415 00:20:10,242 --> 00:20:13,078 Again, because the linchpin of it is really 416 00:20:13,178 --> 00:20:15,447 the ideology or philosophy of the nominee. 417 00:20:15,547 --> 00:20:19,318 It's not about what the American people say or don't say. 418 00:20:19,418 --> 00:20:21,286 Because the American people could speak to this, 419 00:20:21,386 --> 00:20:23,255 they could elect, oh, let's say, Hillary Clinton, 420 00:20:23,355 --> 00:20:25,524 President of the United States, 421 00:20:25,624 --> 00:20:28,360 but my guess is, if Senator Toomey's still in the Senate, 422 00:20:28,460 --> 00:20:29,895 he's not gonna pay attention to that, 423 00:20:29,995 --> 00:20:31,396 he'll pay attention to the fact that he just got 424 00:20:31,496 --> 00:20:32,698 reelected to the Senate, and say, 425 00:20:32,798 --> 00:20:35,901 oh it's really the Pennsylvania people, 426 00:20:36,001 --> 00:20:38,136 that's who I'm gonna listen to. 427 00:20:38,237 --> 00:20:41,640 So you'll notice the ball keeps moving. 428 00:20:41,740 --> 00:20:43,108 It's not fixed. 429 00:20:43,208 --> 00:20:44,476 Which, by the way, if this were a matter of 430 00:20:44,576 --> 00:20:47,980 constitutional law, should make us pause. 431 00:20:48,080 --> 00:20:50,949 That's because this isn't grounded in constitutional law, 432 00:20:51,049 --> 00:20:54,620 it's grounded in partisanship and politics. 433 00:20:54,720 --> 00:20:58,991 When we strip everything away, I think we can see, 434 00:20:59,091 --> 00:21:00,425 a couple things. 435 00:21:01,560 --> 00:21:03,829 I want to first point to what I think 436 00:21:03,929 --> 00:21:06,031 is part of what is going on, 437 00:21:06,131 --> 00:21:09,034 and then I'll point to what I think is the more credible 438 00:21:09,134 --> 00:21:11,536 explanation for what's going on. 439 00:21:11,637 --> 00:21:12,904 And I say this, 440 00:21:14,840 --> 00:21:18,710 without as much trepidation as I used to say it. 441 00:21:18,810 --> 00:21:21,046 I should tell you, as preface, 442 00:21:21,146 --> 00:21:23,815 that I grew up in Alabama. 443 00:21:23,915 --> 00:21:26,652 And I grew up in the 1960s in Alabama. 444 00:21:26,752 --> 00:21:30,622 And I grew up as a Jew in 1960s Alabama. 445 00:21:30,722 --> 00:21:31,923 There were four of us. 446 00:21:32,024 --> 00:21:35,027 (audience laughing) 447 00:21:37,562 --> 00:21:40,432 None of them were living in Alabama, no. 448 00:21:40,532 --> 00:21:41,933 (audience laughing) 449 00:21:42,034 --> 00:21:46,104 And all I can say is, I think I know racism when I see it. 450 00:21:47,639 --> 00:21:50,175 And I think some of the opposition is driven by 451 00:21:50,275 --> 00:21:52,044 the basest, coarsest, 452 00:21:54,579 --> 00:21:56,581 feelings that may exist. 453 00:21:57,783 --> 00:21:59,885 It has to do with the very simple fact 454 00:21:59,985 --> 00:22:03,221 that a black man occupies the White House. 455 00:22:03,322 --> 00:22:04,823 When Mitch McConnell says, no, no, no, 456 00:22:04,923 --> 00:22:06,258 this president won't make it. 457 00:22:06,358 --> 00:22:09,194 That's not a stand on principle, 458 00:22:09,294 --> 00:22:11,396 that's a stand on racism. 459 00:22:12,564 --> 00:22:14,866 And I've seen stands on racism, George Wallace 460 00:22:14,966 --> 00:22:17,269 was the governor when I grew up. 461 00:22:17,369 --> 00:22:19,271 And I ran as far away as I could. 462 00:22:19,371 --> 00:22:20,739 All the way to North Carolina, no. 463 00:22:20,839 --> 00:22:23,542 (audience laughing) 464 00:22:23,642 --> 00:22:24,776 And now look at it, yeah. 465 00:22:24,876 --> 00:22:27,279 (audience laughing) 466 00:22:27,379 --> 00:22:28,213 And so, 467 00:22:29,915 --> 00:22:31,416 I don't think we can ignore that, 468 00:22:31,516 --> 00:22:35,120 and one reason I point that out, I hate to tell you, 469 00:22:35,220 --> 00:22:37,055 is because, with the flip of a page, 470 00:22:37,155 --> 00:22:39,925 racism is not gonna go away. 471 00:22:40,025 --> 00:22:41,993 And I also hate to tell you, 472 00:22:42,094 --> 00:22:43,595 with the flip of a page, it doesn't mean 473 00:22:43,695 --> 00:22:45,063 that a woman who gets elected president 474 00:22:45,163 --> 00:22:47,733 is gonna be any better off. 475 00:22:47,833 --> 00:22:51,336 I don't know that I need to tell you that. 476 00:22:52,771 --> 00:22:56,808 But I think sometimes it need to be expressed openly, 477 00:22:58,310 --> 00:23:01,813 because I do think there is such antipathy and hostility 478 00:23:01,913 --> 00:23:04,216 to the progress of women in society, 479 00:23:04,316 --> 00:23:07,219 it seems to know no bounds. 480 00:23:07,319 --> 00:23:11,623 But I believe, to some extent, it is generational. 481 00:23:11,723 --> 00:23:14,626 And I believe this generation that is coming up, 482 00:23:14,726 --> 00:23:17,295 is coming up in a very different way. 483 00:23:17,396 --> 00:23:19,965 Not to say it's perfect by any means, 484 00:23:20,065 --> 00:23:23,568 but I think that there are hurdles to be gotten over, 485 00:23:23,668 --> 00:23:25,670 hurdles yet to be dealt with, 486 00:23:25,771 --> 00:23:28,273 that we can expect will arise. 487 00:23:29,941 --> 00:23:31,543 And so the road, and nobody knows this better than 488 00:23:31,643 --> 00:23:35,814 Hillary Clinton, the road ahead is not gonna be easy. 489 00:23:37,816 --> 00:23:39,584 So where is the principle in all of this? 490 00:23:39,684 --> 00:23:42,254 Well the principle in a sense is, 491 00:23:42,354 --> 00:23:44,956 intertwined with some of this. 492 00:23:45,056 --> 00:23:48,693 And it is of course, the basic principle 493 00:23:48,794 --> 00:23:49,628 that yes, 494 00:23:50,595 --> 00:23:51,696 we who oppose 495 00:23:53,198 --> 00:23:56,301 President Obama making any nomination believe that the next 496 00:23:56,401 --> 00:23:58,370 Supreme Court Justice should look and have 497 00:23:58,470 --> 00:24:02,574 exactly the same outlook that Justice Scalia had. 498 00:24:03,875 --> 00:24:06,211 The principle is a principle 499 00:24:08,880 --> 00:24:12,417 of commitment to, for lack of a better way of putting it, 500 00:24:12,517 --> 00:24:16,321 to strict adherence to original meaning, 501 00:24:16,421 --> 00:24:18,957 strict adherence to texturalism, 502 00:24:19,057 --> 00:24:21,560 strict adherence to those things that presume to 503 00:24:21,660 --> 00:24:23,462 the court had been adhered to 504 00:24:23,562 --> 00:24:26,531 while Justice Scalia was the pivotal vote. 505 00:24:26,631 --> 00:24:29,901 So I have a couple thoughts about that. 506 00:24:31,603 --> 00:24:35,774 I'll concede for a moment that that's a principle. 507 00:24:37,676 --> 00:24:40,645 But, I also think that that principle 508 00:24:40,745 --> 00:24:44,082 tends to conflate results with ideology. 509 00:24:45,450 --> 00:24:49,621 It tends to only treat as correct, those outcomes we like. 510 00:24:50,989 --> 00:24:53,692 I can give you an example, from Justice Scalia. 511 00:24:53,792 --> 00:24:56,294 Now Justice Scalia knew that he and I 512 00:24:56,394 --> 00:24:59,097 would not always see eye to eye, and I don't think 513 00:24:59,197 --> 00:25:01,766 there was anybody more than Justice Scalia 514 00:25:01,867 --> 00:25:04,302 who really hated the idea that through the 515 00:25:04,402 --> 00:25:08,139 confirmation process becoming politicized. 516 00:25:08,240 --> 00:25:09,074 And, 517 00:25:10,242 --> 00:25:11,776 but Justice Scalia who adhered so strongly 518 00:25:11,877 --> 00:25:14,646 to original meaning, only 519 00:25:14,746 --> 00:25:17,782 twice in his almost 30 years on the Supreme Court, 520 00:25:17,883 --> 00:25:20,685 voted to strike down laws for violating equal protection, 521 00:25:20,785 --> 00:25:21,686 only twice. 522 00:25:23,154 --> 00:25:25,156 The first had to do with laws that 523 00:25:25,257 --> 00:25:28,460 are what we describe as affirmative action measures. 524 00:25:28,560 --> 00:25:32,097 Now you may say that maybe that could be squared 525 00:25:32,197 --> 00:25:35,200 with original meaning in some sense. 526 00:25:37,469 --> 00:25:40,305 Maybe, as he would say, because there was a 527 00:25:40,405 --> 00:25:44,276 general sort of hostility and opposition to what we call 528 00:25:44,376 --> 00:25:47,579 race based laws, race based classifications. 529 00:25:47,679 --> 00:25:50,982 Maybe, but it's the second case that 530 00:25:51,082 --> 00:25:52,717 kind of proves the point. 531 00:25:52,817 --> 00:25:54,719 The second time he voted to strike down a law 532 00:25:54,819 --> 00:25:58,790 for violating equal protection was Bush versus Gore. 533 00:25:58,890 --> 00:26:01,192 And George W Bush, I'm pretty sure, 534 00:26:01,293 --> 00:26:03,495 doesn't fit into that first category. 535 00:26:03,595 --> 00:26:05,430 (audience laughing) 536 00:26:05,530 --> 00:26:07,966 The law that was struck down in Florida 537 00:26:08,066 --> 00:26:10,402 had nothing to do with race. 538 00:26:11,503 --> 00:26:12,904 It was what we typically would call 539 00:26:13,004 --> 00:26:15,507 a neutral classification which typically would get 540 00:26:15,607 --> 00:26:16,508 the lowest 541 00:26:17,909 --> 00:26:22,247 level of scrutiny, or the greatest degree of deference. 542 00:26:22,347 --> 00:26:26,251 And so, even the most strict adherent to original meaning 543 00:26:26,351 --> 00:26:30,956 wasn't necessarily as adherent as one might imagine 544 00:26:31,056 --> 00:26:31,890 or want. 545 00:26:33,158 --> 00:26:33,992 And so, 546 00:26:35,193 --> 00:26:37,195 but, to come back to it, 547 00:26:39,097 --> 00:26:40,465 the biggest problem with, I think, 548 00:26:40,565 --> 00:26:44,402 the principle that may be driving or animating all this, 549 00:26:44,502 --> 00:26:46,571 is I'm not entirely sure how many people who actually 550 00:26:46,671 --> 00:26:50,842 are opposing this really are committed to that principle. 551 00:26:52,611 --> 00:26:56,147 To put it another way, they aren't saying so. 552 00:26:56,247 --> 00:26:59,484 You don't find Republican leaders until 553 00:27:00,952 --> 00:27:03,455 somewhat more recently, and somewhat haphazardly saying 554 00:27:03,555 --> 00:27:05,924 oh there's also a principle involved here. 555 00:27:06,024 --> 00:27:08,660 Well, it wasn't the initial stance. 556 00:27:08,760 --> 00:27:10,929 The initial stance of Mitch McConnell was, 557 00:27:11,029 --> 00:27:13,598 within days of Justice Scalia's death, 558 00:27:13,698 --> 00:27:16,001 Mitch McConnell said, 559 00:27:16,101 --> 00:27:17,736 oh, this president isn't gonna fill it, 560 00:27:17,836 --> 00:27:19,304 it's gonna be left to the American people. 561 00:27:19,404 --> 00:27:21,506 Nothing about transformative appointments, 562 00:27:21,606 --> 00:27:23,174 nothing about this court being split, 563 00:27:23,274 --> 00:27:26,511 nothing about principle at all. 564 00:27:26,611 --> 00:27:28,480 And then when some members of the Republican Caucus said, 565 00:27:28,580 --> 00:27:31,883 well, what if in the fall we get shellacked, 566 00:27:31,983 --> 00:27:34,085 and we need to think about whether or not the 567 00:27:34,185 --> 00:27:35,787 Garland nomination somehow is gonna be 568 00:27:35,887 --> 00:27:37,188 more acceptable to us than, let's say, 569 00:27:37,288 --> 00:27:40,025 a different kind of nomination, what about that? 570 00:27:40,125 --> 00:27:41,259 And McConnell said no, 571 00:27:41,359 --> 00:27:43,094 I said this president isn't gonna make it. 572 00:27:43,194 --> 00:27:47,065 Again, nothing about principle, in any of that. 573 00:27:47,165 --> 00:27:48,800 And so if you wanna make it about principle, 574 00:27:48,900 --> 00:27:52,904 my suggestion would be, make it about principle. 575 00:27:54,372 --> 00:27:57,442 Make it openly, and expressly about a principle 576 00:27:57,542 --> 00:27:58,943 of jurisprudence. 577 00:28:00,145 --> 00:28:01,479 But the fact is, 578 00:28:02,714 --> 00:28:05,717 that Supreme Court confirmation process 579 00:28:05,817 --> 00:28:07,285 is a very 580 00:28:07,385 --> 00:28:08,386 tough place, 581 00:28:09,888 --> 00:28:12,057 it's a very tough place 582 00:28:12,157 --> 00:28:15,927 to make very neat and careful distinctions 583 00:28:16,027 --> 00:28:18,630 among people's outlooks based on 584 00:28:18,730 --> 00:28:20,765 how you think they would vote. 585 00:28:20,865 --> 00:28:24,669 The people that have run into trouble in the process, 586 00:28:24,769 --> 00:28:27,072 have not really run into trouble 587 00:28:27,172 --> 00:28:28,506 because they had 588 00:28:31,242 --> 00:28:35,013 I think, because of ultimately problematic 589 00:28:35,113 --> 00:28:37,782 ideologies, I think it's because 590 00:28:39,551 --> 00:28:42,520 they ran into trouble for a couple reasons, ethics 591 00:28:42,620 --> 00:28:43,855 was one reason. 592 00:28:44,856 --> 00:28:46,591 I think competency was another. 593 00:28:46,691 --> 00:28:51,162 And then another, I think is that they simply were, 594 00:28:51,262 --> 00:28:52,497 to some extent, 595 00:28:54,032 --> 00:28:57,969 way outside the mainstream in terms of what was 596 00:28:58,069 --> 00:28:59,571 acceptable 597 00:28:59,671 --> 00:29:01,873 or public approved sort of 598 00:29:03,608 --> 00:29:05,009 jurisprudence. 599 00:29:05,110 --> 00:29:09,280 John Parker, as you may know, nominee from North Carolina, 600 00:29:09,380 --> 00:29:11,783 he was on the First Circuit, rejected for the Supreme Court. 601 00:29:11,883 --> 00:29:14,853 Parker was rejected because he had views on, 602 00:29:14,953 --> 00:29:16,654 not just segregation, but labor, 603 00:29:16,755 --> 00:29:18,423 that were thought to be, 604 00:29:18,523 --> 00:29:22,293 at least by the Senate at that time, unacceptable. 605 00:29:22,393 --> 00:29:26,431 And Judge Bork, who was an imminently qualified nominee, 606 00:29:26,531 --> 00:29:27,966 is the other kind of poster child 607 00:29:28,066 --> 00:29:30,135 that's oftentimes brought up, 608 00:29:30,235 --> 00:29:33,138 but I'm actually of the view 609 00:29:33,238 --> 00:29:36,074 that Judge Bork's biggest problem was Judge Bork. 610 00:29:36,174 --> 00:29:37,776 (audience laughing) 611 00:29:37,876 --> 00:29:40,612 And I've said this, both when I've worked in the Senate, 612 00:29:40,712 --> 00:29:43,214 and other places, 'cause when I worked in the Senate, 613 00:29:43,314 --> 00:29:45,917 lots of people would come up to me and say 614 00:29:46,017 --> 00:29:47,152 well why can't we make these hearings, 615 00:29:47,252 --> 00:29:48,887 like the Bork hearings and everything else? 616 00:29:48,987 --> 00:29:51,489 And after I finish laughing, 617 00:29:51,589 --> 00:29:54,092 I would say, well there are a couple reasons. 618 00:29:54,192 --> 00:29:57,729 The first is, that the objective on the Senate side 619 00:29:57,829 --> 00:29:59,330 if you're in the majority, and you want somebody 620 00:29:59,430 --> 00:30:04,269 confirmed, is not to make it into a popular TV show. 621 00:30:04,369 --> 00:30:05,837 You want it to be the least watched, 622 00:30:05,937 --> 00:30:10,108 most boring production you could possibly imagine. 623 00:30:11,576 --> 00:30:14,179 You may not quote me on this, but, 624 00:30:14,279 --> 00:30:16,681 I will say during the course of 625 00:30:16,781 --> 00:30:18,650 one of the hearings in which I worked, 626 00:30:18,750 --> 00:30:21,786 somebody, one of the staffs came to me and it was 627 00:30:21,886 --> 00:30:24,322 in the heat of the moment, they said "Oh good, 628 00:30:24,422 --> 00:30:26,491 "Michael Jackson just died." 629 00:30:26,591 --> 00:30:28,126 (audience laughing) 630 00:30:28,226 --> 00:30:30,128 Why would they say that? 631 00:30:30,228 --> 00:30:33,298 Because it took the cameras away. 632 00:30:33,398 --> 00:30:37,035 And that made it even less volatile, 633 00:30:37,135 --> 00:30:41,306 made it less prone to any kind of public interest. 634 00:30:42,874 --> 00:30:44,676 Lawyers will tell you if you have, 635 00:30:44,776 --> 00:30:46,444 and you're lucky if you're never heard this before, 636 00:30:46,544 --> 00:30:47,745 lawyers will tell you if you have to testify 637 00:30:47,846 --> 00:30:49,714 or anything else, what you should be doing, 638 00:30:49,814 --> 00:30:51,916 is you should be giving the shortest succinct statement 639 00:30:52,016 --> 00:30:54,319 you can in response to a question. 640 00:30:54,419 --> 00:30:56,654 I should say, the shortest, honest, succinct 641 00:30:56,754 --> 00:30:57,655 statement in response... 642 00:30:57,755 --> 00:30:59,490 (audience laughing) 643 00:30:59,591 --> 00:31:01,759 That is not what Bork did. 644 00:31:03,027 --> 00:31:04,662 And what we would say to any nominee today, 645 00:31:04,762 --> 00:31:07,532 Republican or Democrat, doesn't matter what party, 646 00:31:07,632 --> 00:31:09,000 is shut up. 647 00:31:09,100 --> 00:31:10,435 (audience laughing) 648 00:31:10,535 --> 00:31:12,804 And so I often think of, 649 00:31:12,904 --> 00:31:14,239 a friend of mine from law school, 650 00:31:14,339 --> 00:31:16,341 and I tell this to my legislative process classes, 651 00:31:16,441 --> 00:31:18,309 it's one of my favorite moments in legislative process, 652 00:31:18,409 --> 00:31:20,445 'cause it really illustrates this point, 653 00:31:20,545 --> 00:31:22,113 my best friend from law school clerked for 654 00:31:22,213 --> 00:31:24,816 somebody named Ruth Bader Ginsburg. 655 00:31:24,916 --> 00:31:27,719 And when she was nominated to the Supreme Court, 656 00:31:27,819 --> 00:31:30,622 she had asked my friend, essentially to be her counsel. 657 00:31:30,722 --> 00:31:34,259 And if you go back, and you could see this on TV, 658 00:31:34,359 --> 00:31:35,760 and there's a point in which, 659 00:31:35,860 --> 00:31:37,729 then Chairman Biden asked her a question. 660 00:31:37,829 --> 00:31:39,097 As you could imagine, Chairman Biden's question 661 00:31:39,197 --> 00:31:41,232 goes on for quite a while. 662 00:31:41,332 --> 00:31:44,035 And he goes on and on for some time. 663 00:31:44,135 --> 00:31:44,969 And then, 664 00:31:46,404 --> 00:31:50,808 he stops, and he says to her, do you have a response? 665 00:31:50,909 --> 00:31:52,076 Anything you want to say? 666 00:31:52,176 --> 00:31:53,578 And then she looks at him, 667 00:31:53,678 --> 00:31:55,780 and then she leans back, talks to my, 668 00:31:55,880 --> 00:31:57,048 they whisper back and forth. 669 00:31:57,148 --> 00:31:59,083 Then she leans forward and goes, "No senator." 670 00:31:59,183 --> 00:32:00,685 (audience laughing) 671 00:32:00,785 --> 00:32:01,953 That is why she's sitting on 672 00:32:02,053 --> 00:32:03,254 the Supreme Court of the United States. 673 00:32:03,354 --> 00:32:04,789 (audience laughing) 674 00:32:04,889 --> 00:32:07,458 You know when to talk, and you know when not to talk. 675 00:32:07,558 --> 00:32:11,162 That is not the moment to start going off on a tangent, 676 00:32:11,262 --> 00:32:12,363 or anything else. 677 00:32:12,463 --> 00:32:13,598 That is exactly the moment you say, 678 00:32:13,698 --> 00:32:16,334 no senator, I got nothing to say. 679 00:32:16,434 --> 00:32:19,437 And that's exactly what, I think, 680 00:32:19,537 --> 00:32:22,273 that is one of the lessons from the Bork hearings. 681 00:32:22,373 --> 00:32:23,474 The lesson isn't, oh, let's make them 682 00:32:23,574 --> 00:32:25,476 as dramatic as possible. 683 00:32:25,576 --> 00:32:27,245 The lesson is let's make them as boring 684 00:32:27,345 --> 00:32:29,714 and non substantive as possible. 685 00:32:29,814 --> 00:32:30,648 So, 686 00:32:31,916 --> 00:32:33,651 if that's the case, 687 00:32:33,751 --> 00:32:35,320 then it's really hard to imagine 688 00:32:35,420 --> 00:32:37,488 you can turn a Supreme Court confirmation hearing 689 00:32:37,588 --> 00:32:39,457 into some kind of seminar 690 00:32:39,557 --> 00:32:42,760 on how to interpret the Constitution. 691 00:32:42,860 --> 00:32:44,295 It's not gonna work. 692 00:32:44,395 --> 00:32:46,431 And plus, people's votes are probably largely 693 00:32:46,531 --> 00:32:49,367 gonna track their political partisanship anyway. 694 00:32:49,467 --> 00:32:50,868 So when all is said and done, 695 00:32:50,969 --> 00:32:53,671 it's a very hard thing to point to to say 696 00:32:53,771 --> 00:32:56,975 oh that's gonna vindicate this outlook or that outlook. 697 00:32:57,075 --> 00:32:58,810 The fact is we've had somewhat conservative people 698 00:32:58,910 --> 00:33:00,878 confirmed over the years, somewhat liberal people 699 00:33:00,979 --> 00:33:02,814 confirmed over the years, and if you want to talk about 700 00:33:02,914 --> 00:33:04,949 the two most vicious hearings 701 00:33:05,049 --> 00:33:07,618 in the history of the United States Supreme Court, 702 00:33:07,719 --> 00:33:11,289 I think in some ways Bork finishes third. 703 00:33:11,389 --> 00:33:13,224 The two most vicious Supreme Court hearings 704 00:33:13,324 --> 00:33:17,695 in American history, involve, first Louis Brandeis, 705 00:33:17,795 --> 00:33:19,630 hearings that lasted over six months and were infused 706 00:33:19,731 --> 00:33:21,232 with antisemitism. 707 00:33:23,735 --> 00:33:27,572 And, the hearings for Thurgood Marshall. 708 00:33:27,672 --> 00:33:30,608 And I would say, those two, 709 00:33:30,708 --> 00:33:34,612 probably, are the two most distinguished 710 00:33:34,712 --> 00:33:38,616 lawyers and judicial nominees in the 20th century. 711 00:33:38,716 --> 00:33:41,152 And those hearings could not have been uglier. 712 00:33:41,252 --> 00:33:44,956 And at one point President Wilson goes to Louis Brandeis 713 00:33:45,056 --> 00:33:49,594 and says, "Look, you're getting beat up in the Senate, 714 00:33:49,694 --> 00:33:50,661 "do you want to come forward?" 715 00:33:50,762 --> 00:33:52,063 And he goes, "No!" 716 00:33:52,163 --> 00:33:55,533 Exactly the same as Justice Ginsberg's response. 717 00:33:55,633 --> 00:33:57,435 Which is, you know, Brandeis understood that 718 00:33:57,535 --> 00:34:00,371 there's nothing to be gained really, 719 00:34:00,471 --> 00:34:02,106 or you've gotta be really careful about this, 720 00:34:02,206 --> 00:34:04,542 but not much to be gained by going into the lion's den 721 00:34:04,642 --> 00:34:06,477 like that, and then 722 00:34:06,577 --> 00:34:08,312 allowing yourself to become a punching bag. 723 00:34:08,413 --> 00:34:10,281 So I'm not convinced the hearings 724 00:34:10,381 --> 00:34:11,849 are gonna become an elevated 725 00:34:11,949 --> 00:34:14,852 seminar on constitutional law, anytime soon, 726 00:34:14,952 --> 00:34:16,487 unless, as I often say, 727 00:34:16,587 --> 00:34:19,357 the nominee really likes his current job. 728 00:34:19,457 --> 00:34:21,559 (audience laughing) 729 00:34:21,659 --> 00:34:23,694 If that happens, 730 00:34:23,795 --> 00:34:26,030 I mean if you really, really love being on the DC Circuit, 731 00:34:26,130 --> 00:34:27,465 go ahead, do it. 732 00:34:28,633 --> 00:34:32,203 But you don't go in there and open up, 733 00:34:32,303 --> 00:34:34,972 and talk more than the senators, 734 00:34:36,140 --> 00:34:39,010 unless you're prepared to be rejected. 735 00:34:39,110 --> 00:34:42,246 'Cause the more you say, the more you get in trouble. 736 00:34:42,346 --> 00:34:44,115 - [Voiceover] North Carolina Channel is made possible 737 00:34:44,215 --> 00:34:46,918 by the financial contributions of viewers like you 738 00:34:47,018 --> 00:34:49,620 who support the UNC-TV Network.