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tv   American Constitution Society for Law and Policy Convention  CSPAN  June 8, 2019 1:09am-3:05am EDT

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tv on c-span2. now, senator mazie hirono of hawaii talks about the current confirmation process to select a judge for a federal courts he and its impact on women's reproductive rights and the current health care law. she spoke at this year's convention of the american constitution society for law and policy. this is about two hours. [applause]
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just yesterday in the judiciary committee, we had a judge, a
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district court judge who had only been a district court judge six months already to be elevated to the third circuit. that is what is happening. mitch mcconnell and republicans , such asy effort blocking president obama's judicial nominees. they blamed -- attempted to split the ninth circuit. the ultimate mitch mcconnell maneuver was to block' merrick garlands nomination without so much as a by your leave. helped thatell supreme court seat open for nearly a year, arguing without any historical president -- during a that presidential year they should hold the supreme court vacancy.
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they also change the number of senate votes it takes to confirm from 60 to a mere majority and that is what has been happening. of course, mitch mcconnell will reverses position so fast if vacancy in this presidential year. this is all about power, the power of trump judges to achieve the extreme conservative outcomes that they can accomplish through the regular legislative process. at a chamber of commerce event, senator mcconnell argued that while legislation can be read , what cannotaled be undone is a lifetime appointment. one of the reasons donald trump's court packing has been so successful is because he has outsourced his judicial
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nominations process to the federalist society and heritage foundation. i'm counting on you guys. surprise over 80% of trump's circuit court nominees are federalist society members. they are really stepping up their recruitment of members to the federalist society from as many law school students as possible. campaign,ter of the is leonard leo. he has been using dark money for years to get extremely partisan and ideologically driven judges on to the federal bench. they have made her go clear. clockts to turn back the
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to a type of limited constitutional government like we have not seen since before the new deal. before the supreme court recognized that women have the right to control her own bodies. before people could marry whoever they loved, whether because they were of a different race or the same sex. before workers, women, minorities, the elderly, the poor, you name it, at even the most basic protections. the impactady seeing of this on our federal courts. donald trump's nominees are far less diverse and far more extreme in their ideologies than previous judicial nominees. rememberose of you when justice kavanaugh promised to follow precedent only to pursue his agenda when he received a lifetime appointment. it took only four months for brent cobb and not to vote to it -- brett kavanaugh to vote to
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support abortion restrictions. brett kavanaugh wrote the only dissent in this recent supreme court decision. almost as soon as neil gorsuch was confirmed to the court, he provided the crucial fifth about overturned at 40-year-old precedent and a setback to the rights and protections of public sector workers. this new majority in the court has emboldened extreme conservatives to go on the offensive on issue after issue. iscourse, what we are seeing an all-out assault on a woman's constitutional right to an abortion. a lot of states like alabama, georgia, louisiana are racing to pass antiabortion laws that are clearly unconstitutional.
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the silver lining, if there is one, is the growing recognition that who sits on our courts matter. let me highlight a few examples of people recognizing the dangers of court packing. i heard from so many women who watched the kavanaugh hearings and listened to dr. ford, came forward to talk about their own experiences surviving rape and sexual assault. i heard from two people, women i had known for years, one had been raped, she never talked about it, another had been sexually assaulted, she never talked about it -- most of these women, watching the kavanaugh hearings, relating to what dr. ford was saying, knowing they had those kind of experiences themselves, never talking about it, but these experiences stayed with them for decades.
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they know that in justice kavanaugh, we have a justice who opposes a woman's constitutional right to abortion. they are filing lawsuits and organizing friends and family to vote in
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sen. hirono: we all saw the ensuing chaos as the administration tried to match these children with their parents and that is because the trump administration did not even keep track of most of the families they separated. the trump administration made instant orphans of these children. but for a federal judge issuing a nationwide injunction to stop this cruelty, the administration would never have reunited these children with their parents. we all remember the hundred thousand dreamers facing possible deportation from the
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only country and home that they know. when trump ended the daca program, it took two federal judges in california and new york to issue nationwide injunctions last year to stop this particular trump insanity. now, vice president pence wants to ask the supreme court to get would've nationwide injunctions, saying, this president has more injunctions against him than any president. we all know why! good grief. [laughter] sen. hirono: if they were breaking the law at every turn, these judges, thank goodness there are these judges to impose nationwide injunctions. they are counting on their partisan, ideologically driven justices to oppose their unconstitutional policies. speaking of partisanship, what
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could have been more partisan than the diatribe of kavanaugh, and using democratic members of a conspiracy against him. this is the kind of people we are putting on the united states supreme court. that is why it is important you are here today. and that is why i said, part of , we have a privilege doing what we do. there are people in our country getting screwed every single second minute hour of the day and if we can lessen that number , we will be doing our jobs. we will be doing the right thing. i also say half the battle is showing up. you have shown up. that means not just physically being here, but to stay the course because it is going to take us continuing to be on course. turn going to take us to
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the tide on the court packing. they have been spending millions of dollars to get their judges into the lifetime positions. the next panel will be talking about supreme court reform. at this point, a question i have is why should anyone get a lifetime of ointment anywhere, but particularly to the supreme court? once the supreme court makes a constitutional ruling, that is the last word. it cuts off policymaking on that issue. i know there are a lot of thought-provoking ideas about the supreme court. term limits, changing how justices are selected. while we are debating court reform, let's not forget that reform can happen through the ballot box. 2020, that is when reform can happen.
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elections matter. elections have consequences. we see that with the election of donald trump. people across this country. people are fighting to support the independence of the judiciary. there are a lot of people in the voting rights, whose right to choice of ring threatened by these right-wing judges that are being people all over our courts. thereow that i will be fighting right alongside you. activism is important. i know you are here listening to every word -- yeah right -- i'm not saying everything you
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haven't heard, but it takes action for true reform to happen. i will be there with you. [applause] >> please welcome to the stage cnn's legal analyst. [applause]
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>> welcome, everyone. i'm glad you are here. there still are some seats up front. this is the possibilities and perils of supreme court reform overhaul. what we are hoping to do today is take on some of the ideas that have been certainly kicking around for decades, but have really emerged with force right now and explore the reasons why for this phenomenon, look at a couple of the particular proposals, strengths, weaknesses, and just how some of the candidates might respond to them, what has been the pushback conservatives might have, and just try to be lively here. we have six voices, so we want
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to be fairly brisk to lay down some themes and have our panelists explained their own proposals. a couple of bookkeeping elements. turn off or down your cell phones. make sure that if you want the credit, you know the table is outside. sign up there. your questions. people will lead going around, trying to collect the cards. we would leave about 20 minutes for questions. if you go on twitter. it is #acs2019. let me briefly introduce our panelists. the bios are in the program, more thorough. ." my far right, from "slate
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from the university of chicago. bob bauer at new york university law school. our guest at vanderbilt. guest at san francisco state. neil seigel at duke. just to start us off when we are talking about proposals that date to the 1930's and fdr's failed attempts -- proposals for something that has not changed in america for 150 years when the congress last set the number of justices at nine. we will start with you, dahlia. why? [laughter] >> we could have a whole plenary just called "why?" [laughter] for inviting me. i was feeling this is the best party of the year.
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looking around and seeing your heroes and the people working so hard. it is great to be here. how did we get here? the reason we are talking about supreme court reform is that within hours of the death of justice scalia, we were hearing from republican leadership in the senate that whoever barack obama chose, it could have been , was not going to get a hearing or a boat and that seat would be held open until the election. more importantly, when barack obama picked merrick garland, it was very clear there were people in the senate who were not even going to meet with him, not even have a courtesy meeting, much less a hearing or vote. i want to make one point under what the senator said, which is that over the course of the summer, that summer of the
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election, senate republicans went from saying, why are you blocking, why are you not going to give this man a fair hearing -- went from saying look over there, squirrel, we don't want to talk about what we are doing -- to overtly campaigning by september and october. senate republicans saying we will live with eight seats. we can go down to six. if you elect me to the senate, we will have eight more years of six seats, but hillary clinton will seek no one on the senate. there was one side overtly campaigning on eight people or six people. another side that was not campaigning on this issue at all , i say with some dismay. not saying, i will fight for the court. i say all this to say that in the 2016 election, exit polling showed that by a to-one margin, people who said the court was
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the number one issue voted for donald trump because donald trump promised to them what he has given them, which is that this would be his singular priority. the only thing the senate is now doing under mitch mcconnell is processing judges in the numbers the senator just told you about. all of this is to say that we are here in some part because we like to say they did this to us, but i just want to say a little bit, we did this to us, that there was a little bit of a gap in focus and enthusiasm and passion around the issue of the court and how we went into an election with an empty seat, three octogenarians, and did not make it the single most important issue that voters were talking about, that is also a little bit of why we are here. [applause] thatm reminded of the fact
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at the democratic national convention that summer merrick garland's name was not raised at all and some of us made news stories out of it. his name seems to be in the air much more now. much more than when he was in 2016 dangling out there with any kind of senate hearing. could you just elaborate a on how we got to this moment and how it shows are herele think we right now? >> first of all, it is good to be here. it is likely over determined why you arealking about talking about on this panel. i would put two reasons front and center. is the name of the plenary, "why are we here?"we know mitch mcconnell's response. can."sponse is "because i
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that has been his response, president trump's response. what you are seeing is norm -defining, constitution undermining, deeply and state can't is -- in the constitutional behavior from the president, from the presidential -- senate majority leader. i there is an emerging sends on the left that you don't want to be a consistent loser in a prisoner's dilemma. there have to be some kind of consequences for norm violations. we will talk about whether some of these and -- amount to conflict escalation. the court is now substantially more conservative. we had a minority president nominating decisive justices.
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arguably lacks actual democratic legitimacy to move the law substantially to the right, which does not mean that is not what they are going to do. i think the second reason dahlia touched on it gently. i think liberals are increasingly finally seeing the freight train coming. you see it with respect to all be abortion bans, the voter suppression, what is going on at the border, the judges, the judges, the judges. you want to know what someone values? look at the budget. huge tax cut, all the deregulation, appointing people to agencies whose mission is to undermine the agency. and liberals, unlike conservatives for decades now, have not prioritized courts and judges. let me restate what the senator says.
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courts matter, judges matter, elections matter. the old way to pack the court is to win elections. that is not something liberals have focused on with respect to the role of judges to nearly the extent of conservatives. we have the court right now that very arguably we deserve. four of our panelists have specific ideas of what next, what now? up are going to be mop because you feel strongly that progressives are relying on the courts too much. i think that is something we want to bring into the mix, but what do you want? what do you think the candidates should be talking about now? what makes the most sense? >> thank you so much. i'm a political scientist. scared when the
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garland seat was stolen. i started an organization called "pack the courts." my full or's forced me to change the name to "take back the courts." which we are doing now and to only talk about court expansion instead of court packing. one of the greatest constitutional scholars left my board and resigned. my sense was that they left the board because they had renewed faith that as the senator said, elections can restore democracy, that at the ballot box we can get our democracy back. our analysis is that that is unfortunately profoundly wrong. and that effectively, yes, we
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will still refer to ourselves as a constitutional democracy, yes to him at when election but effectively the democracy is over because the republicans will not let us govern even when we win elections. then the five ultraconservatives will shred or drastically limit most of the legislation that passes and that is not a democracy and is not a democracy when black people can't vote and it is not a democracy when corporate money floods the system. analysis, and it is not our idea, it is influenced from , that there is literally only one chance where we may be able to get our democracy back and that depends
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on winning in 2020, and then coming back and doing three things immediately, which is getting rid of the filibuster, expanding the supreme court, and passing a very aggressive , plusn of hr one statehood for d.c. and puerto rico. i would at 50 million voters to the rolls. if you do that and see court expansion in the context of saving democracy, all the court reform proposals are terrible. is that court expansion is actually the least risky of the strategies and the only one that has the possibility of restoring the democracy. joan: in your proposal, how many seats? >> to the extent that you believe that president trump acquired the presidency through illegitimate means as an unindicted co-conspirator, we don't know how many seats he
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will have stolen by the end of his term. we are not going to get into the numbers for the supreme court until we see how many justices he appoints. we also need to expand the lower courts to make up for all the seats that were blocked in the last two years of the obama administration. joan: now you have more specifics on that. tell us a little bit about your proposal. >> thank you so much. we shoulde place start is asking, what are our goals for reforming the supreme court? fournk there are really goals. the first is that we want to supreme court that is less political. it plays less of a role as a political institution. the second is that we want to reduce the political stakes of nominations. we just went through a bruising battle over justice kavanaugh. a political stakes of any one of
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these nominations are horrifying for the country, just as an emotional experience for all of us. that we should want to reduce the importance of all of these particular judges. are on anyur views particular issue, the idea that all of that might turn on the idiosyncratic views or the life expectancy of some particular person is not a good way to design a system. we should not have a system based on that kind of structure. the fourth goal is that we should want a system that in general has the court be more deferential to the political branches of government and less of a central actor in our political and policy fights. dan and i have proposed two kinds of reforms to the supreme court. the first is that we should appoint every court of appeals judge as an associate justice on
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the supreme court. you have about 180 associate justices on the supreme court and the supreme court would hear cases in panels of nine chosen by lottery from the entirety of the court of appeals and it would be a super majority requirement for overturning statutes. we think of that is the lottery approach. part of this is that it will severely reduce the importance of particular people and expand the number of people who are participating in these cases. the second proposal we call the balanced bench. you may have heard of it as the 5, 5, 5 approach. five republican judges, five democratic judges, and those 10 have to unanimously choose five judges from the court of appeals to sit with them for a year and these 15 will be the supreme court for that year. the 10 judges cannot choose five, there is no quorum and they are not allowed to hear cases for the year.
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this will force the people on the court to actually find some court of appeals judges who both sides can agree are at least relatively balanced and how they think about the law. we think both of these approaches serve the goals that we have two really reduce the temperature of some of the court fights we have right now and reduce the political nature of where the supreme court is today. joan: as i understand it, you believe congress could do this without any kind of change in the constitution, as opposed to a bob is going to talk about in term limits? >> we think both of these proposals are doable by statute. that is not to say proposals are always constitutionally perfect. beginning of the proposals we have have constitutional challenges and i couldn't -- could imagine constitutional arguments against them. joan: just to clarify, are you thinking statutory? >> yes. limits,u however, term
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i know there is some debate, but explain your proposal and whether it would require a constitutional amendment. >> certainly, it is not my proposal. it is a proposal in development for some time. it would provide for supreme court justices to be limited to terms of 18 years. going tomental notion one of the objectives just mentioned is to reduce the enormous pressure around the nominations and to also avoid a court with members possessing extraordinary power in our democracy who keep that power and exercise that power for decades. i heard the senators say a little while ago, why would we do that with any office in a democracy? i think that is a fair question area when i first wrote on this in 2005, justice o'connor
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was giving a speech and she mentioned it by title along with other pieces critical of the courts and said she saw this as an indication of the mounting attack on the independence of the court. i thought that was very revealing that an argument about term limits would be viewed as an attack on the independence of the court. i think the court is an institution with outside power. i think it is a source of stresses on other norms and we can have that conversation when we talk about the origins of the merrick garland controversy. in my view, the simplest, clearest, i think easiest to explain reform of the court that we could put forward at this time would be one in which we say nobody needs to serve on the supreme court longer than 18 years, every president will have an appointment to make, two appointments to make, once this cycles into effect. that seems to be a reasonable
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way to put the court back into a proportional role within the constitutional democracy. idea,the every president we had the unusual situation with jimmy carter, with no appointment, where as most others had at least one in modern times. if not the situation donald trump encountered with two on his doorstep. is it your calculation that with the 18-year terms, it would also automatically be easy to have every president get at least one or two? >> absolutely. that is precisely the goal. it becomes something we can expect every administration to grapple with and the decisions they make don't necessarily have apocalyptic consequences because terms are limited. it does not stand to reason, it is it bizarre lottery the jimmy a supreme not have
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court appointment and donald trump may have 2, 3 bank appointments, not to go even further to ruin everybody's morning. it seems to me that that is an important piece of the proposal. in response to proposals like 5, 5, 5 and the lottery system come i think the next step has to be one that is relatively comprehensible to voters. i think it is interesting and innovative, but i think it is very difficult to imagine it would sell. if it becomes the frontline of the attempt, it will block other reform channels and make it difficult to get to something like term limits. joan: i should mention some of the justices have been asked about some of these proposals in various appearances, including john paul stevens, who is 99 90, and served until he was after his appointment in 1975 by
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gerald ford. he said he suggested this was all born of the moment and these proposals will probably fade, but stephen breyer was asked at a forum about it and the 18-year term limits, he said had some resonance to him. ita personal way, he said, could stop me about worrying from when i go. if you would give us your take briefly, but also respond. i know you feel like progressives have been relying too heavily on the courts, which is a theme some of our panelists have hinted at. >> thanks so much and thank you so much to acs for organizing this discussion. i grew up in a country that did not have a high court, england. it was a country with a
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reasonable tradition of rights and respect for politics. so when i think about the role like our supreme court, i ask what good it does? this particular form of judicial arrangement? courts are instruments. they serve an end. they produce a particular kind of public good. in this regard, they are no different from the police department, a fire service, a health service, a municipal garbage and sewage system. [laughter] you don't design those institutions by somehow reasoning from principle. you design them by thinking about, what does it decide to do by providing a service to the public?
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perspective, i think that progressives have very salient toolicy aims the role of courts than conservatives. i think there are three reasons why progressives should view the likelyas distinctly less to serve their ends than conservative ends. the --st is specific to it flows through the two branches of government, the electoral college, which creates the presidency, the senate, isch with all due respect not demographically representative of the united states.
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the consequence of making the electoral college and the senate the gateways to the federal courts is to predictably skew the composition of the federal court in ways that match the skew of the electoral college in the senate. skew that will help progressive forces in the next 50 years. the second reason progressives should be skeptical of the courts is that progressive goals tend to be redistributive, whereas conservative goals tend to be anti-redistributive, they tend to be focused on protecting or retrenching elements of some part of the status quo distribution. now, it is the case that there are certain instances in which courts can redistribute in ways that are highly effective. the redistribution of respect
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and dignity in a way that is deeply important to many of us. form is the exception. in the overwhelming majority of instances, progressives will not be able to achieve thestribution particularly way of judicial review with its focus on negative rather than positive rights is organized in the united states. the third reason aggressive's should be skeptical is the lessons of history and the lessons of comparison. the federal courts were of deepd in the context suspicion of democracy, deep the potential that
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democracy had for redistribution away from propertyed elite. it were seen as a check on redistribution. they were seen as a way of protecting property rights. that is hardwired into the constitution. just the case in the united states. the best comparative constitutional work on the role of courts describes the function of courts -- and i will use a bit of jargon -- as hegemonic preservation. you see supreme court's being included in both democratic and autocratic constitutions. it is nothing democratic, nothing democratic about supreme court's. you see them as ways of entrenching the interests of the elites that are dominant at the moment of constitutional creation.
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by design, by function, by history. progressiveot the friend. joan: ok. [laughter] already -- all righty. [laughter] [applause] joan: i think all of these proposals and thoughts about what the courts stand for as other progressives or conservatives, the debate itself is so worthwhile that if there are flaws, strengths of certain proposals, i think it is ok, because i'm so happy as a journalist who wants more attention on the supreme court that it seems so much more in play right now in the campaign and in the conversation because
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of some of these proposals and the concerns. i guess the first thing in terms of response, how can these ideas be communicated in ways that resonate with people, that gets them to want to talk about the more at town halls. we are seeing people at town halls ask the candidates about court packing in a way that i would never have imagined before. i wanted to ask how you think these can be understood by people and if that is part of making these kinds of arguments about what the courts should be doing for progressives or for any americans. then also, i know that you think some of these are going to be counterproductive. i want to transition into that and then we can have various panelists talk about how they have been able to try to get these ideas out there and bring them some salience that could
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popularize the ideas. when we warned bob walked in that my instinct and all of these conversations about the courts is to agree with the last person who just talked. so actually agree with every single person who just spoke and i imagine many of you do. i still feel like we missed a beat. i feel like the conversation is starting a little bit in the middle. what my concern is and i set of glanced at it and then neil spiked it, my concern is that we have four decades of the left being on screen save about the courts. we just have not engaged with it, we have not talked about it, we have not fought for it. ,f you ask most progressives say to me in one declarative sentence what a progressive judge does as opposed to whatever balls and strikes or a
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regular divination of what the framers wanted -- there is a wholly realized the reader conservative jurists, even as they are disavowing brown the board, are able to articulate. there is some description like living constitutionalism married to interpretive dance. [laughter] we have allowed this conversation to just sit in this won in theof, we 1970's, we must still be winning. in 2016, remember when people did not go to the polls about the supreme court, they had ample evidence of shelby county, ample evidence of citizens united, a court that had been dismantling workers rights. janice thatust changed things. ago anded a long time
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we don't clock it or track it. i say that not to say shame on before we say even have a conversation about reforming the supreme court, we need to convince voters, voters who go to tell halls and they are upset about abortion, but that is not enough. that is not enough to change the conversation about the court. we have to have a deep and profound reassessment of what it is we value about the court, if we value the court, if we still want to hold it out as something that is a check. we have to be able to convey to voters that this matters to them. i say all this only to make the point and it is a version of a question you asked, is this conversation that we are having now the vehicle by which we are going to teach voters before 2022 value the court? is this the way into the conversation?
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i think that is where the real friction on the panel probably exist. there is a real question about whether people see in conversations about slamming more justices on the court or going 5, 5, 5, were suddenly instituting term limits -- are voters going to say, that is a step into this conversation about the importance of the court? or is it a way to terrify voters? i don't know the answer empirically to that. groundwork to the have a conversation about court reform that requires explaining what courts do beyond just this question of do they do or do they don't overturn roe versus wade? what courts do is so fundamental and so misunderstood and particularly on the political left we have slept through this conversation.
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it is not a conversation. joan: it is interesting, i'm remembering, breyer, and active liberty. 10 years ago when barack obama used the word empathy about judges. there has to be something in the middle between a very detailed beuctural change that may important, but may be difficult to convey versus something that feels so open-ended is empathy. >> i was a huge fan of empathy. i was the person who tried over and over again to say thank you,
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barack obama. joan: what happened to empathy? >> what happened to empathy is it dovetailed with there was a massive conservative push back that empathy meant by us or empathy meant you had a thumb on the scale for some people. when sonja sotomayor was asked at her hearings whether empathy has a role, her response was no because it there was no conversation on the left about what it might mean. how was an example about the strong messaging and thinking happens on one side. there is just this cricket sound on the other sound -- side. not that empathy is a judicial philosophy. i do think it was obama's into theo inject conversations about what progressive judges do, something
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think about like people outside your own experience. it died as quickly as it lived. he never said the word again. my dear friend is this is america, baby. mistakeit would be a for progressives to give up on courts and judges. not windonald trump did those three midwestern states. is sitting onand the supreme court. imagine all the other things that had to happen for donald trump to win.
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of power inss a lot this country. is who is going to be in control of the courts exercising a lot of control. it is the issue of reproductive rights. speechern free tradition. as we criticize courts and were , evend them to account so, what are you comparing it to? the democratic political
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process? redistribution is easy and you don't have special interests and wealth? protecting those in groups? need judges who understand their role. striking down the expansion of the safety net. you don't get to try it again and again until you get it right. you need courts to say, no. i want to applaud everyone putting forward ideas that are energizing people on the left. you have certain candidates talking about them. i am very concerned the front runners are not talking about merit garland.
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go to their website. they are not talking about the future of the courts. are not talking about everything going on in the senate with respect to the lower courts. students, they are in the court of appeals. stuff is all going on. with respect to the particular i don't think it is possible to have an unwitting conspiracy but i worry it is part of an unwitting conspiracy to reelect the president. to be talking about major structural reform very unlikely to succeed. some of these proposals are difficult to understand. you can have a hard time is aading voters this legitimate response to bad behavior.
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going beyond anything the other side did. have unintended consequences. spirit not quite in the we are talking about radical reform. proposals have constitutional objections. some of them aim at the wrong target. i don't think the goal should be to make the court not political or above politics, whatever that would mean. it is, always has been, and should be responses to changes in democratic politics. that is a lesson of constitutionalism. it is a dialogue. that is how we preserve the
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legitimacy. the problem is not that the court is political. you have a court not democratically responsive to what a majority of the country actually believes about their own constitutional values. that is only going to get worse mobilize andls begin winning more elections. the situation could look different. you could have a democratic majority. that is not something we have to wait 20 or 30 or 40 years four. >> you are in the business of trying to figure out what people are talking about. why are they not talking about the issue of the supreme court?
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> the conservative recipe is for the forces of greed to to the polls. show conservative thought leaders have spent a generation whipping up their base. on the basis of court decisions they do not like. they have taught their own voters the court can be very bad and they have to go to the polls in order to pursue their values. paranoia is not strategy on the left. our data show when progressive thought leaders talk about this, we tend to talk about the court in terms of positive cases. a ledger.
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we don't have a history of trying to educate our own voters about what is at stake and the danger of the courts. combining thatce damage what of the the court has already done -- the damage it has already done. clear ag it with a very clear proposal, expending the court, that is motivating. i will say one more thing about that. theave heard from some of presidential candidates, can people in the back here? againet to say everything >> shall we hold or keep going?
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it is just my mike? -- mic? .> i think it just started >> somebody give him -- >> can you hear it? >> maybe kill his mic? what we are going to do, after infinishes up, he has been the trenches more than anyone politically. >> does that work? it is a metaphor for something profound. turn it off we are getting mixed
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signals. mic?y don't you kill my ok. >> shall we can continue? i think we should. >> i forgot what point i was say your last point. >> we've heard from some of the presidential -- it just depends on how dire you think shape wherein in terms of democracy and if you agree that we are the titanic after hitting the iceberg or not. but what we're hearing from some of the presidential candidates is that they are coffee houses
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going into coffee houses in iowa, and as expected there -- they are getting questions about health care and jobs. but what's unexpected is the people also asking them how do we restore democracy, and what is your plan for saving democracy? just by putting court expansion on the table, what we've seen is that there's a growing awareness among progressive voters and candidates that if progressive voters, sorry, if candidates don't have a plan for protecting their agenda from the supreme court, then they really can't be taken seriously as candidates. and so that's part of the reason why the discussion of the court expansion to my mind, has been energizing, and it is a clear, simple idea people are able to rally around. >> thanks. bob, the reason i want to turn to you is i think you probably have more extremes than anyone actually worked with candids, working with politicians. first of all how you how to respond to aaron's basic point about that conservatives made
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about the court and the failures of progressives to connect? and who should be communicating this message? should liberal justices bespeak -- be speaking out more about this? democratic candids, democratic leaders? who should convey the message that should resonate with people to believe the court is, should be a great nation election or at anytime? >> it seems to me that we have put together two lines of argument about the court that a i think we ought to separate. one is an argument about form, that -- bring your mic up. >> it goes even higher? ok, as i was not saying.
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there are two lines of argument or before. one is an argument that it ought to be sort of considered on its merits and as part of a writer -- broader question about how institutional functioning and in what ways they might be fixed . the other is one that might have political salience and be directed to the electorate in some way to mobilize the electorate around these issues. when there is a question about which electorate are you referring to? the democratic electorate is different than the general electorate response. you can't make the same argument to one you would to the other. you could different party electors, the argument is the is not the one you're presenting court i want is not the one you're presenting to me. it's a court that reflects my values and produce a constitutional jurisprudence consistent with my preferences. is that the same argument that you were going to make to voters you're trying to peel away from the republicans in wisconsin, pennsylvania, michigan? i don't know that it is.
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i just want to stress the term limits argument is not going to bring thousands of people to the barricades by any stretch of the imagination, although i would also say that in the general election in a country at the polling demonstrate is extremely concerned about the freefall in washington, d.c., , the instability of the tone, abuse of power, apparent inability of adults elected to public office work together collaboratively, i don't know that an argument about institutional reform is completely useless but i grant you it would become at the very -- not come at the very top of the list. i also want to just add one other sort of cautionary note about what does it mean to say be apolitical?ld if given a choice about the country where voters can actually elect supreme court justices, they prefer election. which used to drive sandra day o'connor crazy. that's what they want. they view judges as accountable in some way to them for the decisions that the render.
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i will stop there because i know there are a lot of people on the panel with a lot to say on this topic. i just want to add, merrick garland's name has come up quite a bit in the conversation here. i don't think that this is an argument that's going to any really frankly rallying appeal in the general election. it is hard for me to think, most voters have never heard of merrick garland, and probably are going to wonder why it is the subject is been brought up again. what it reflects to them is washington was dysfunctional yet again. there was a freefall and someone named merrick garland was yet another one of the victims. what i do think would be helpful at some point in the conversation to go back to the question of what we draw from the merrick garland episode. i think that it is, the name mitch mcconnell comes up obviously, shivers go up our spines, and this is a very, very ugly episode.
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having said that, it was entirely inevitable that it was going to happen. the norm that was violated was under extraordinary stress. it took mitch mcconnell to seize the moment. but i think it's a to talk it as something other than sort of isolated constitutional criminal offense that occurred. i think it points us in the direction of how these are under -- norms are under stress and why it is his long-term institutional reform questions like term limits are not just to be cast aside as to bland, two neutral, too lacking you and political sex appeal. >> the thing about that moment on february 13, 2016, when mitch mcconnell did seize the moment , that was a moment he was prepared for. for those of us who watched we done with the appeals court judges, i want to get back to you on that point, what a lot of people don't know is that in 2009, as soon president obama
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took office, mitch mcconnell wrote him a lettersaying in essence we will be scrutinizing everything and we know what happened with the d.c. circuit. president obama did not get a single appointment in his first term to the d.c. circuit, precisely because of a very effective coordinated campaign by the republican leader, at that point in the minority harry reid was leading the senate, but that moment he was prepared for. he was long prepared for that moment. that's why when you got tipped off early through someone with the federalist society who is a close friend of the skelley scalia family, he was all set with that statement. so at 5:30 p.m. when chief justice john roberts announced scalia had passed away, he had his statement. as many people have reported, barack obama, in california playing golf, they were not sure first how to approach it and
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their was a lot of internal stress among the judge savvy members of the obama administration over how to proceed, how quickly, how not quickly. merrick garland was not named until march 13, and that gave mitch mcconnell obviously plenty of time to then get people together. because what a lot of folks don't member is mitch mcconnell certainly was ready for that moment, but other republicans were not quite ready for that moment and he eventually got them all on board. so we know what happened. i think your point is well taken, is that was, that was not a really spontaneous move by mitch mcconnell. that was something that was part of a longer grander plan by someone who is aware of what the courts represent to his people at least. and on that subject they're so -- there are so many strains we want to pick up here and in one we want to see if he wants to
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respond to what neil said that a few minutes ago but i don't want us to lose sight of the fact we're not just talking the supreme court. we are talking all the appeals court judges that donald trump has been able to name. at this point in his presidency he has already doubled the number of appointment to the appeals court that president obama had at this point in his presidency. the idea, in fact, sort of elevating the role of appeals court judges that comes with your proposal, dinesh, i just wonder that they might not be as neutral actors anymore as they could've been in the past i don't know. tell us a little bit more practically speaking how that , would work. if you will want to respond anything that is the set and then we will bring in aziz to defend his statement about how progressives should just not count on the court. >> thanks so much. i'll respond to a couple of things. the first is, should we be concerned about the court being political?
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i think the answer to that is a yes. and the reason why is if you look at what we have on the court today, we have a court that is 5-4, where the five and the four are appointed by the political party by president of the political party that is aligned with their ideological views, and that this is a pretty surprising thing. we should expect a series of 5-4 decisions that among ideological and partisan lines. and this is different even from in the roosevelt era. when the four horsemen were striking down new deal programs right and left, justice mcreynolds was a wilson appointee. democrat. that is a different situation than we face now, and to think in a world where people look at out and say the supreme court is just a partisan institution like any other partisan institution, that is a bad thing for the rule of law in the country and a bad thing for the constitution. because what it means is political actors will start
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saying, well, you don't need to pay attention to this legal decision by some judge or other judges. they are just partisan. there's nothing actually legal about this. it's all politics. i think that is not something that is good for the rule of law or for our constitutional system in general. that's partly why we want to reduce the temperature of this. on the balance court plan part of what happens when you have the five republicans, the five democrats choosing five from the court of appeals, is that they have to come to some compromise on who those five people will be. there could be some horsetrading. horsetrading. there might be two that go partisan one way and to mexico partisan the other way but there's one person they have to agree that of that got to be at least somehow accessible and acceptable to both sides. one of the things, the hope that will do is force them to pick some as people who are a little
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bit more available to both sides. and if not then they just can't hear any cases at all for the year. that's part of the design of the system is again it puts pressure on the court and their ability to try to find some remedy for that. >> aaron, do you want to jump in -- quiets -- >> very briefly. my critique of the of the court reform proposals, in part, is that they have zero chance of getting through the supreme court. and this is a moment that is not about -- >> you mean as a constitutional matter? >> because, i mean, we saw in bush v gore. the court does not need to reasons to strike the things the court doesn't like. this is not a moment to my mind that's about mitch mcconnell or donald trump or merrick garland. this is about the republican lightingiction to gas
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that goes back a generation. they cannot avoid gas lighting because of their strategy for in amassing power. to my mind come to my mind it is actually unhealthy and even arguably irresponsible to other have an academic debate about reform ideas they can't get through the court, they can't work, they can't sell politically when we are in a dire democracy crisis. >> one thing that i think is important for us to think about is, i take aaron's point that the members of the court are acting in bad faith in how they do interpretation, we will finally succumbed outcomes that they prefer. if you believe that though, then we have to note that they would do that in any situation, including the court expansion for which there are plausible arguments that they could come up with to say that that is unconstitutional.
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one of the challenges unconstitutionality is if you assume bad faith as a foundation it doesn't necessarily mean there are not more or less plausible arguments. but if you assume bad faith, you have to assume it across the board and that includes any of the proposals that anyone might propose. >> i want to let you respond. i was also wondering, you are proposing not just that we think of courts in a more diminished role, but if you wanted to remove jurisdiction from their agenda also? >> so let me respond directly to the question and i'll try to weave in some thoughts to what neil said. realizing that the left and the right have asymmetric payoffs from judicial power has implications for how you think about your goal in court reform, not an invitation to give up on courts.
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it's an invitation to think hard, both about how you mobilize, how you appeal to people with respect to the court. and hear the concern is that if courts are object of fear on the left, and objects of hope on the right, that has implications for whether and how dalia said we can talk about them, politicians can talk about them, and how they might talk about them in the future. but it also has implications for the forms of structural change that might be desirable. there is a pathway of change we haven't talked about that is plainly constitutional, and that, in fact, was a modal congressional intervention, at least until the 1920s.
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and it was changing the jurisdiction of the lower federal courts and the u.s. supreme court, which congress has broad but not unlimited power to do. in thinking about whether and how congress should use its power to shape the agenda of the court, i think it's useful to notice that what courts or federal courts do is not a single thing. actually, courts are a bundled good. they are like an iphone. here are two things courts do. the first thing courts do is they provide retail remedies for individuals whose rights have been violated. so here i am going to respond to neil. let's say your first amendment rights are violated by a police
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officer who arrested you because of something to say. let's say that you are a criminal defendant in a state court who has been denied a confrontation right and tonight -- denied assistance of counsel. the theory is that the federal court should be available to provide a remedy. just a theory. in practice, the first amendment and criminal procedure that neil alluded to are largely out of reach of most litigants because of doctrines like qualified immunity that we saw applied, that we've seen apply aggressively by the roberts court in its shadow docket, right? by doctrines of simple, none just to fill ability -- justify ability the court just this last week held that there simply is a remedy if a police officer arrests you for your speech.
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if you are a criminal defendant, the chances of getting your constitutional rights vindicated it and this includes capital defendants, are pretty low because of a statute. post conviction release a of violations of constitutional rights that are as a matter of fact endemic in state court systems as has been shown are rare. this idea that courts in fact, protect the first amendment, the criminal procedure, the fourth amendment rights, that americans share is illusory. it's not illusory because of what's going on at the supreme court. it's illusory because of the structure through which remedies are titrated. that is one thing courts do. the second thing the court he is that they resolve big policy questions. they resolve questions like the constitutionality of hard-fought health care reform, the constitutionality of substantial
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trenches of the ministry of state that keep our environment clean and our workplaces safe. and thinking about court reform requires a recognition that the judicial task of retail remedy provisions and the judicial task of answering big policy questions are different than distinct. and recognizing that you could alter the jurisdiction that the lower and the u.s. supreme court in ways that vindicate the rights of americans and immigrants within the country and beyond in ways that simply courts don't do now, while narrowing the scope, and i absolutely recognize the jurisdictional change is not some sort of panacea, but narrowing the scope of the harm
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that the conservatives judiciary that we now have can inflict on an ongoing basis through their ability to give interest groups not a second, not a third, a sixth bite at the apple, once they've lost in the house and in the senate, and some kind of progressive legislation, be it regulatory change in the environment or health care has actually been enacted. so i think that there's a space there -- it is not simply narrowing or expand the role of the court, but his thinking carefully about what function the court ought to play, given that the structural reason they are asymmetrically tilted toward conservative efforts. >> dahlia, what you think of that? it's not so much the people, it's the jurisdiction, it's the scope. obviously, aziz, your idea of,
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certainly reminiscent of ronald reagan in the court stripping era. i know. it was john roberts versus ted olson on the question, for those of us remember 2005. i don't know, dahlia, white and -- why don't you respond to that and i want to give the other panels a chance to jump in with any final thoughts returned with a big stack of question. >> i want to respond quickly and then i to ask you a question, want joan, as i feel like having the joan roberts book expert on the panel warrants you answering one question. quiet -- >> we've got a stack from everybody else. >> my quick response is i'm happy aziz framed that way because i think it answers the abouton that we had here bad faith. i don't think we have to impute that faith. i think you can just say senator hirono said it, there are hundreds of millions of dollars from the gun industry, you know, there is a machine that creates
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an asymmetry. it is working at is meant to do and it is buying precisely the judicial outcome that it can afford. and i think that asymmetry is baked in right now and it's something we have to think about. there isn't parity there. the systemme sense we are stuck with. so we can have conversations about reform but to not take into account that there are hundreds of millions of dollars of vested interest in creating exactly the outcomes that aaron described, i think is to not recognize that the playing field isn't level. that was a bob mueller like triple negative. but joan, i think one of the questions that's been in my head the whole time from the minute you asked, you know, you pointed out that sandra day o'connor balked at some of these proposals, and the justices all think of these as court
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stripping proposals regardless of what they are and attacks on the independence of the judiciary, is the thing we have not talked about. i'm curious what you think about it, is in some sense even the talk of court packing sometimes induces the justices to change their behavior. we have historical examples. i think of that. i just wonder if your view is, we have framed this is what will the american public, will they balk at conversations of huge systemic changes at the court, and do they see this is breaking the court because we didn't win? and my question to you is a very, very narrow one and maybe only just what would john roberts think. but to conversations like this about what is either court stripping or limiting judicial independence, does that panic him to the point that he conforms his conduct to what progressives are asking for, or does it have the effect of
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pushing them in the other direction? maybe that's a ridiculous question, but the impacts on the justices is almost as interesting to me as the impact on the electorate. >> i actually think he is paying close attention to all these conversations. and in november when he responded most immediately to donald trump's line about come when the president was disparaging a judge who ruled against him on and a sudden question i disparaging him as an obama judge, and chief justice roberts issued that statement first to the ap and then to the rest of the press corps. there is no such thing as an obama judge, a trump judge, published judge, a clinton judge i don't think he was just , responding to donald trump. i think he had in his mind these discussions because they have been in the air, i think he is paying attention to them. i think it does concern him to a degree. he is also a student of history and he knows that chief justice
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hughes played a role behind the scenes to help squelch the fdr proposal and to try to reassure members of congress, members of the senate particularly. so i think this whole atmosphere of is the court legitimate, is it not legitimate, i think that condit help but affect the psyches of these justices, whether they would ever admit to it in any way, i don't think so, but i think what they're all trying to do, the phrase that's come up several times about lowering the temperature, i think they feel that, too. i think they would come of the chief would be completely against it but but i think it does inspire some concern, yes. >> does anybody else want to make any quick response to something -- yes, bob. >> i don't mean to jump ahead. i just wanted to have, on the hope of potentially diminishing americans expectations about the court, and then conclude with
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one last pitch for term limits. try to sell that proposal. the first is i think just as a matter of the american political culture it's going to be very difficult to persuade americans if they don't have access to the courthouse of the things they really care about, whether its enforcement of rights or the institutions stepping up fairly. i'm reminded of mitch mcconnell saying to poor pat sibling and white house when the the president was insisting on his national emergency for the border wall that he was expressing doubts it was legal. mitch mcconnell said, this is america, everybody sues everybody about everything, let's go. he couldn't care less because is he said it's going to go into court anyway. there's an underlying truth there which is americans have an expectation that the courthouse door will be opened. i want to say one last thing about merrick garland and that experience about the norm and
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that concludes my point about term limits. i do not believe that the democratic leadership and behave the way mitch mcconnell did in 2016. i don't believe they should behave that way. i want to stipulate that at the outset. whatnot here to defend mitch mcconnell did. i'm not, but of what everyone to visit engaged in a thought experiment and dally and i talked about this before him. it is march of 2008 and george bush is the president of the united states. the supreme court vacancy suddenly becomes open for brady has a 30% approval rating. wildly unpopular. we have two wars taking place and we're about to enter into, you can push it further if you want, troubled economic times and he wants a supreme court appointment and concludes he is going to nominate a moderate to try to persuade the democrats to go in and hold hearings and confirm that individual. we know from history that barack obama is going to be elected, maybe it is even likely at the time, and barack obama is going to pick someone like elena kagan. you have a choice. do you want to go ahead and say
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yes, i'm going to hold the hearing and if this is a person of qualification, i'm going to nominate, i'm going to confirm george w. bush's moderate nomination in 2008 as he is leaving office for a potentially forty-year term or going to wait until president obama comes in office and maybe take my chances on someone like elena kagan. think about it. you might go ahead and do all the right things. i would like to believe the democrats would have under the process with respect to the norm s but it wouldn't have felt good at all. why? because it's a 40 year term and there is so much at stake. and so we can talk about garland, talk about mcconnell, and i've got lots of critical things to say on that topic but i also think being somewhat realistic about what put pressure on that norm to the point that entire political party abandoned it, and paid no price, merits some of our attention.
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>> go ahead. real quick. dahlia is exactly right to put attention on the effect of these proposals on the justices themselves. if you think the supreme court the federal courts are politicized and couldn't get worse, i would suggest you don't have much imagination or knowledge of history -- >> i know we are going. can i pretend like this is one of the questions? how do we reform changes without changing the court the court without turning the court into politicians in black res and destroying confidence? >> it could get a lot more than it is. i don't think john robert is mitch mcconnell. i don't think the u.s. supreme court is what's going on turkey and venezuela, and we ought to think it's one thing to talk about the stuff and there is a pretty good evidence that does have an effect on the judicial mind. it's another thing to go ahead and do it. i worry about the effect, the
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effect of passing some of these proposals not so much the 18 year terms but the court expansion proposals on the justices themselves and them becoming completely and utterly politicized as a result. i would also say that there are substantial constitutional arguments against what aziz is talking about, court stripping, stripping the appellate jurisdiction of the u.s. supreme court. i wrote about this with my colleague chris brown people -- court packing and court stripping and the "georgetown law journal." fact john roberts loses that debate with ted olson, the attorney jobsites with him and official position of the office of legal counsel to this day is that stripping the appellate jurisdiction of supreme court for political the u.s. reasons is unconstitutional. i would also add to aaron that there are, everyone assumes that court packing is constitutional. congress could do it under the necessary proper clause. there are good faith -- i don't think it a proposal that is free from constitution difficulty, let me put it that way. there are textual constructional and other based on historical
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practice that would suggest that changing the size of the court for particular reasons would run into some constitutional difficulties. aaron is right that ultimately it would take the form of the statute and the supreme court would be deciding the constitutionality of that statute, assuming as seems likely someone would have standing to challenge its validity. >> i'll have you respond but could you build this -- to me the most practical question about some of these proposals, this is what someone in the audience said. for those panelists advocating specific reform proposals how to protect those reforms from a future mitch mcconnell gop majority. aren't you just setting up the conservatives? >> i would say we already there, and i mean, my argument would be that even if the democrats obtain the majority through normal rotation at some point down the line, the republicans will pack the courts in response if and when they get the chance. that to me is what they proved
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in the garland case. but i guess i would say that just a little bit in response to the fact experiment, i think there's an important contextual difference, which is to me this moment is not about the breaking of the norm in the merrick garland case because the breaking of the norm has to be contextualized and a generation of phony rhetoric about voter fraud, in a generation of efforts to keep black people from voting through voter suppression, in gerrymandering, in flooding the system with corporate money and with the commitment to gas lighting. to my mind the republican party cannot be deradicalized at the ballot box. we thrash them in 92, in 2006, in 2008 and again in 2018. and each time the party has become more radical. i think we are well past the point at which we can afford the luxury of worrying frankly by -- about the legitimacy of the
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court because there's even more at stake now. the court is a political institution with politicians on the court. on this point about constitutionality, absolutely, granted, court expansion might not work even if it is paired with getting rid of the filibuster and an aggressive version of hr but unlike term one. limits and five by five and jurisdictional stripping, possibly you could expand the court before the court had the chance to wait in on the -- weigh in on the constitution of course expansion. we are not arguing at take back the courts project that this will work. we are arguing it is the least worst possible solution to getting our democracy back. >> do you want to add anything? >> one of the questions to think about is, to the questioner is, is the proposal plausibly stable? is this something that you think maybe the other side could agree
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on every could reach some sort of new equilibrium eventually? i think each of these plans have a different case for it. our plans have a case for it. i think the 18 year term plant has a case for it. i think the court expansion has a case for it, in the context potentially of a massive realignment which is maybe what they have in mind on the level of you have fdr and truman and together you just went 20 years of elections, that you sort of have a new equilibrium form politically. part of the question is what is your three of some sort of political stability around the institutional design? because i think for for a constitutional system to constantly be changing the basic structural design of core elements on a regular basis would be profoundly destabilizing and problematic. >> here's a related thought experiment from the audience. for those of you are on my right, is the panel ready to concede that the merrick garland nomination was unwise and
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establishment straight white guy who can mobilize anybody? was that a perfect nomination? >> if i can just respond quickly. i was in the white house. so i'm not, i'm freezing anything that encroaches upon confidentiality or whatnot, or even outrageous claims of privilege. look, it depends entirely on what governing responsibly you think the president had it was . was it an opportunity to recognize that there was no hope and, therefore, it should be entirely a public communications initiative? or was it an attempt to take some of what happened to admire greatly, merrick garland, and distinguished endurance and put him in a position with the hope that some other republicans made it possible for elena kagan to go on the court would bend and felt vote to put merrick garland on the court? he took the second course
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and i can criticize him for it at all. >> how would the current justices phase out in 18 years? >> it could be 15 years. when john roberts was in the government, he wrote a memorandum on the and of term limits or judges. was term limits. he suggested 15 years might be a term. a that sheoposal was was evaluating. the notion would be again, each limit would be 18 as current members of the supreme court would come to the conclusion of the terms they would become a senior associate justices and they would continue to have a role. they could sit on lower court decisions and periodically if there were vacancies on the united states supreme court come
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back up and sit on those cases. but the freshly appointed judges i think it would play out in the first and third year of an administration, would only serve for 18 years. as i mentioned earlier once the entire program kicked in, because it would take a phase-in, then every administration would have a choice. dahlia, this one is for you. many religious pro-life voters were mobilized in 2016 on the sole issue of supreme court nominations. how can progressives better mobilize voters to get about nominations to the same degree? i would just mentioned because abortion is now so front and center, because of the brett kavanaugh nomination and what is has been happening in states in just the last couple of months with legislation, can that make a difference in the conversation? >> i think that's the question and i think part of the symmetry again is, you know, you can drop
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aw a straight line between religious voters and outcomes in roe and the supreme court. and decades of messaging this as as erin says decades of saysging this as, -- that the court is awful. it gave the right to kill babies to americans, that is been a been answered by i think this been answered by i think this drumbeat that has sort of snoozing, we won and we are not going to fight for it. part of the problem is that it is in an analog, which is a sort of religious argument to be made. the analog is women's reproductive freedom that doesn't necessarily mask logically to a group of voters but it masks logically to women and people care about them. presumably that's a lot of people. but i think that the problem is, again, the progressive messaging and thinking around reproductive rights has tended to be we want
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on inroad, we won and casey and we went home. the sort of chip chip chip erosion of roe and kasey that's happened at the state level , again this predates 2016, it predates brett kavanaugh. this has been going on, and a lot of people who should of an activator about what was happening in the state houses and states going down to one clinic just didn't seem to think that it was worth moving on. i think the issue is, again, drawing a very straight line that isn't -- i think you're not talked about this on the podcast -- joan, so pitch for that, but i think what the mistake that i saw happening at the court is is there were lines around the block when whole woman's health was argued because there with some reason to believe that was around the blog when hobby lobby the moment. there were lines was argued because that was the moment. right after hobby lobby little sisters was argued. same case, nobody showed up. so we get very excited about the
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thing that we think to be the dramatic moment in reproductive rights. last month it was alabama. guess what. that wasn't it, right? that wasn't it. but we keep kind of honing in very myopically i think on the wrong target. the target is this big formal structural decades long change at the court and change in the state houses, and that's not something we've done a great job of explaining. so i think we can't just to say if you showed up in a red dress to protest kavanaugh, you should be out there explaining to women what this means in the 2020 election. that's a really hard sentence, but that's the sentence that's not connecting yet. >> here's a broader one for you. it's not universally agreed upon that the court requires democratic legitimacy. does supreme court reform necessarily rest on that assumption, and should it?
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>> the relationship between the court and what you might call democratic preferences is a loose one. i think it is best encapsulated by robert dall in the famous article from the 1950s when he said, well, the court house to as to have the support of some elites, provided the court can assemble that faction, it can usually defend itself sufficiently against criticism. this is what the thesis is what you saw played out with respect to or in the wake of bush v. gore. i think you'll see some of the
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at play out if the court upholds the citizenship question of the senses. there will be criticisms of possible bias in the case but a think there will be sufficient coalition within the elite to protect it. but the role of democratic legitimacy is different when one is thinking about court reform. domain it's reform , not some gestalt general view about the court that matters, it's the precise nature of the coalitions that one can assemble at the relevant gates across the political system. and i think as has come out, this question about stability. to the extent that you can assemble coalitions. all of us agree who put reforms on the table is somehow lowering stakes, altering the downside risk.
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how does that stay stable? problem of the equilibrium question is we don't know what the incentives are on the other side. we don't really know. we don't know how committed the republican party is to the projects of democracy. depending upon how weak or strong that commitment is, i will confess just, i don't know, and i think things like the attempted reneging on gubernatorial wins in north carolina and wisconsin is kind of a nice example of how shallow the commitment is, beyond the white house, depending upon how shallow it is, the nature of any kind of equilibrium that you can sustain changes dramatically.
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if you have a weekend commitment to democracy, if you are sufficiently adventurous or in diffrerent to legality and you are willing to embrace arguments the present off-the-wall, well, i not sure we should have that am many expectations that there's some sort of equilibrium solution to the problem we are all describing in the absence of some sort of hermetic change in -- dramatic change in the loss -- larger political environment. >> we have time for just a couple more. although -- yes, sorry. i couldn't see the clock. i can answer one very easier y and then i going to ask a am broad one. thank you. thanks. why is any enthusiasm for changing the number of votes needed to grant cert? the sixth panelists can't tip of the nine justices can. i know it takes four votes and it's entirely up to them because they set their own private rules. here is one the panel that i for think kind of turns us in another direction, an important
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direction. how do we get more diverse perspectives on the court. workers perspectives, for example. how do we address their always products of ivy league institutions? with kavanaugh, we have a majority on the court of individuals who were supreme court law clerks themselves. and this goes across ideological party boundaries. president obama obviously named elena kagan who had clerked for thurgood marshall, merrick garland had court for william brennan. is that something that should be a concern to people up here as they are thinking of restructuring? what you think of that, how to get more perspective on the court from a progressive president? >> i'm not being defensive. [laughter] , this reminds me of the
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discussion of empathy, which i think effectively coded by conservatives as emotional as opposed to rational, that liberals have it in heart but conservatives have have in the head and the conservatives follow the law while the liberals just want to make people feel better, right? but to my mind empathy is part of a rational cognitive process in which i think judges, if they know what they're doing, do what is most important for the judge to do, which is to imagine the world from multiple, different points of view. not as an alternative to good legal analysis but part of this distinctly legal responsibility. if you think how to apply the words of the statute to a fact pattern or how to figure out whether vaguely worded constitutional guarantees are applicable in a particular case, you are going to go into this empathizing with someone or some group. that's part of being human. the question is, are you a good judge?
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can you overcome your very partial experience, perspective, values, church you went to you were young, whatever it is? now, in order to have a judiciary that is more capable of doing that, i wouldn't start with, well, let's start excluding the supreme court clerks, although i don't think we should only have supreme court clerks. but it is a genuine diversity of life experiences, a genuine diversity of backgrounds. why do we have one justice who's done meaningful work in congress . he's also the one least likely to strike down a federal law. with so many justices were so identified with executive branch? think that is nothing to do with do you how popular the theory of the unitary executive? why do we have only one justice who's ever charged a jury?
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to know.nt has justice so-and-so ever charged a jury? what am i supposed to with this five-part test? you want people who can actually think about it from the workers or the employees or the consumer point of view, that don't just have justices work for employers, right? and corporations, those were on the other side of the case. it seems to me it's clear what you do in terms of you nominate, but that has not at all been the tendency really on either side i think. we don't have former politicians and we don't understand, we don't have justices who understand congress works so or what the limits of possibility are. we don't have been if that. we used to. now we seem to come to dislike -- we want someone who can safely navigate the confirmation process, and that's going to be a very well credentialed, well experienced federal appeals court judge. are there any recent exceptions?
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elena kagan, elena kagan who is, i mean, she is incredible. elena kagan, you could pretty much put her in anything and she's going to succeed but that's the exception. the clear path is just appeals court judge, record, right, no -- now will have more on the front end going back to high school but very safe people. the real sacrifice is in terms of a genuine diversity of experience so that you would not just have empathy for particular points of view but actually multiple points of view. >> segue, we have time for two last this question is, and i ones. think it's it's a good one. how might a merit-based selection be built in? they know you have talked about the ethics issues. think there would be any room for a nonpartisan commission that would go to the president with the selection of
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candidates? essentially we have come with a , very informal panel now advising the president, just that it is not a nonpartisan commission. the federal society, maybe acs at another time, that kind of thing. what do you think about it is. >> askeded that since you about quirks and diversity, my proposal produces many more clerkship opportunities, ok? [laughing] i never thought about that until today but i want to make a new argument. secondly, as far as that's concerned, i think that is fundamentally going to be, with reference to a very troubled history of the american bar association in the rating process when the bush and the obama administration brought the aba back into the prescreening process and it becomes very complicated. and this continues to be very fraught, very complicated.
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i think it's a final question question of presidential leadership. could a president, and i dimly recall that something this effect, at least at the federal pallet level by jimmy carter, by the way. could a president say not the american bar association, not a particular committed group with a perspective on constitutional jurisprudence, no heritage society or federalist society, but some blue ribbon panel that puts, creates a pool of potential candidates for both the appellate and the supreme court together, and that's transparent, and the president commits that is the pool from which he or she will draw. that might be a powerful message to send about the way a government is run, but i don't know how you accompany set the on presidential -- accomplish presidential --
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>> very motivating question, we expand the court in 2021, we expand the court in 2021 and in 2025 president cruz expand it further. are we on a merry-go-round? >> again, of course in an ideal world, we want a system that is stable. i don't see a path to getting a stable system or stable equilibrium unless we have a 3-part democracy agenda of killing the filibuster, of expanding the court, and passing hr one with statehood. if you do that, you add 50 million voters to the roles. in theory, president cruz will not be president then. a few years later, of course, the republicans would expand the courts in response if we expand the court. but i would argue there's no
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such thing as a neutral reform at this point. if we put in place term limits or 555, the republicans will scream about it, distort it, and lie if and when they have to to control the court. one last thing. the question was raised, do we really know how committed republicans are to democracy? and the answer is yes. they are committed as a party can be if it blocked black people from voting at lies about it? the people in this room are in a unique position to restore democracy because we are stuck in a chicken egg position, where court expansion is pulling among democrats a third in favor, you -- a third venture, and a third against. -- unsure, and a third against. the candidates won't make that case because of the polling. it's up to the people in this
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room, if you agree with my analysis, to talk to colleagues and candidates to explain how dire the system is in there is only one way out. >> thank you everyone for sitting through this. [applause] thank you to the panel. appreciate it all. [applause] [captioning performed by the national captioning institute, which is responsible for its caption content and accuracy. visit] >> c-span's washington journal. carl will discuss his new report on former members of congress who end up employed as lobbyists. in our spotlight on magazine segment, will feature nature magazine contributor to talk about her special investigation looking at ther, treatment of prisoners in colorado. and then the smart approaches to marijuana. we'll talk about his group's efforts to oppose marijuana.
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