Stuff You Should Know - How Supreme Court Nominations Work

Episode Date: April 11, 2017

Being nominated as a Supreme Court Justice is no small thing, and it doesn't always go as planned. With this week's confirmation of Justice Gorsuch, Josh and Chuck take a look at the process of getting named to America's highest court. Learn more about your ad-choices at https://www.iheartpodcastnetwork.comSee omnystudio.com/listener for privacy information.

On the podcast, Hey Dude, the 90s called, David Lasher and Christine Taylor, stars of the cult classic show, Hey Dude, bring you back to the days of slip dresses and choker necklaces. We're gonna use Hey Dude as our jumping off point, but we are going to unpack and dive back into the decade of the 90s.

We lived it, and now we're calling on all of our friends to come back and relive it. Listen to Hey Dude, the 90s called on the iHeart radio app, Apple Podcasts, or wherever you get your podcasts. Hey, I'm Lance Bass, host of the new iHeart podcast, Frosted Tips with Lance Bass. Do you ever think to yourself, what advice would Lance Bass

and my favorite boy bands give me in this situation? If you do, you've come to the right place because I'm here to help. And a different hot, sexy teen crush boy bander each week to guide you through life. Tell everybody, ya everybody, about my new podcast and make sure to listen so we'll never, ever have to say. Bye, bye, bye.

Listen to Frosted Tips with Lance Bass on the iHeart radio app, Apple Podcasts, or wherever you listen to podcasts. Welcome to Stuff You Should Know from HowStuffWorks.com. Hey, and welcome to the podcast. I'm Josh Clark. There's Charles W. Chuck Bryant,

and there's Jerry over there, and this is Stuff You Should Know. I object to what? I don't know. I don't think you object in front of the Supreme Court. I think they strike you down with lightning if you talk out of turn. Yeah, do they even, jeez, I'd love to see one of those hearings.

Yeah. Do they even call them hearings? Magic Hour? I don't know. Yeah, they do call them hearings. I'm almost positive. It's like shrouded in secrecy though, right? You never know.

They don't show that stuff on TV, do they? Like C-San? No, they, no. But they do have, like, if you listen to Nina Totenberg, she's a great Supreme Court reporter. And it's all just, it's not televised. And I guess it is just traditional reporters

that are allowed in there. But it's not closed to the press, or any, it's not like a FISA quarter. It's not the star chamber. No, no. It's interesting though, it is sort of, it does seem sort of secretive though, because they like write these rulings.

Sometimes they don't even read them. I saw that Clarence Thomas went seven years without speaking in court. What? Yeah, that's what it said. Where did you see that? In an article about Clarence Thomas. It said he, he's one of the quietest justices.

It said he went at 1.7 years without speaking in court. But it apparently writes a lot in his rulings. And you know. His briefs. His briefs, yeah. He writes in his briefs. Yeah, I can see that. Because I guess when you're in court,

you're arguing in front of the Supreme Court. And I think basically, and we'll do like a whole separate Supreme Court episode. Yeah. Right? You agree? Sure. Okay.

Somebody mark that down. All right. But you are, you're being peppered with questions from them. And then like you're trying to answer the questions to show why your side is right. Right? You're arguing the case. Clarence Thomas.

He just sits here and goes mm-hmm. And intimidates you. Yeah. But yeah, part of it is going back, thinking about it and then writing your opinion on it. Yeah. It's a very weird job. It is.

It's a pretty neat job too. One of the big things about it is it's in, here in the United States, if you were on the Supreme Court, it's the highest court in the land. Right, sure. I guess we should say that. You're there for life.

Yeah. It's a life appointment is the only as far as I know, besides working at the DMV, am I right? It's the only for life appointment. Yeah. In the United States government. Yeah, which seems like kind of crazy, but it also sort of makes sense

because you want a stable Supreme Court. Yeah, you want them focusing on cases, not what's going on, whether they need to be elected again or campaign. That makes sense once you kind of put your head to it. Plus it also kind of dovetails with the way that they're viewed here in this country, and I'm sure abroad too,

that they are this panel of highly-learned legal scholars. Yeah. Just basically like, I don't know. I'm sure there's something in Star Wars that resembles this, you know? Oh.

The Jedi Council. Oh man, I'm always afraid to say anything about Star Wars. You know, the Jedi Council. And Jar Jar Binks was on. Okay. Yeah. I'm sure we won't hear anything about that. How could we?

Right. So this was written by our old buddy, Ed Grabianowski. Yes, should we tell everybody? The Grabster. Should we reveal the big reveal? Do we have an announcement? I think so.

All right, go ahead. Oh, you're letting me do it? Yeah. So everybody, you may not know this because we tried to stretch out Grabster articles as much as we could, but they were starting to get thin. Yeah.

Grabster wasn't really writing for the site any longer. Well, we said enough of this. We need them. Yeah. We need them bad. So we did a little wheeling, tad bit of dealing, and Grabster is going to be writing, again,

specifically topics that we are requesting. Yeah, it's pretty great. Yeah. Like you and I were both so excited. Stoked, I think is the word. Yeah. So anyway, we love Ed and a big shout out to him and to Buffalo, New York.

Yeah. And their wings. And their football team. Sure. Why not? So anyway, Ed wrote this and it's a great article. So like you said, I think we kind of dove into it really quickly,

but if you're not in the United States, you might be saying, what's the Supreme Court? Although I think you probably know. Like you said, they are the highest court and they're the third branch of our government. Yeah. And they are specifically there to kind of keep everyone in check

and to say like, you may be the president, but you're not a dictator because you still have to answer to the Supreme Court at the end of the day. You can't run amok. Yeah. And we're gonna make sure that we, and this is ideally,

we're gonna make sure that we review everything in a legal way and we're gonna get to ideology. You can't escape that, of course. Sure. But Supreme Court justices are supposed to rule on law and specifically these days at least, how it relates to the Constitution. Yeah.

And that's a, it wasn't their initial, they weren't created to say like, go defend the Constitution. Right. And the Supreme Court said, well, can we sew some patches or bedazzle our robes and the framers said, sure, we don't care. So they went out and defended the Constitution.

It actually is very vague. The judicial branch or the Supreme Court is created in the Constitution, but all it says is that they are there to, that its power should, shall quote, extend to all cases in law and equity arising under this Constitution. That's it.

It's the only thing it mentions about the Supreme Court and its power. So ever since the Constitution was written and ratified, the Supreme Court has kind of been this evolving thing or it was evolving for a while. Now it's pretty well set into its role and what it's meant to do. What evolves and changes are, like you said,

the ideology and the personalities of the people sitting on the court. Yeah, and their word is the final word. There is no court that can overturn or review even their decisions. And they review, they have about 5,000 cases submitted every year and can only review about 100 to 150, which I thought was kind of a lot actually.

150? Sure. Yeah, I was not expecting that. And they specifically try now, like we said, and focus on the Constitution or usually cases that have been appealed from lower federal courts. They work their way up the food chain. Or, and I think they probably love these,

treason, cases involving treason or disputes with other countries or ambassadors, kind of like high stakes stuff. Sure. Imagine being an ambassador and getting dragged in front of the Supreme Court for something you did. Or your kid did. Yeah.

Probably. Those little snot-nosed brats. Ambassador kids. So like I was saying, the Constitution's pretty vague about what the Supreme Court is meant to do. And it wasn't even out of the gate that they realized that they were supposed to really kind of examine laws in respect to the Constitution.

That started in an 1803 case, Marbury versus Madison. Big one. And it was, yeah, it was a landmark watershed case. Both kinds. And ironically, the court found that it didn't have the power to satisfy the petitions of the petitioners. Yeah. I think James Madison, or no, Stefan Marbury

was suing James Madison because James Madison had said, we'll give you these commissions. And then he was taken out of office or he phased out of office and the commissions were forfeited. And the Supreme Court said, we thought we had the power to do this, but it turns out we don't constitutionally. So sorry.

And it was the first time that the Supreme Court had ever examined something through the lens of the Constitution, and that set the precedent from then on. Yeah. And they serve, well, they serve kind of however long they want to, or if they die, obviously. But they average about 14 years,

or if they retire, they average a retirement age of 71. But they can serve super long. I know that one just to serve for 35 years. Yeah. And if you nominate a young judge, which is kind of more of the trend these days when you're thinking politically, like we want someone in there for our team,

so pick a young one. Right. Then they can have tremendous sway in how things go in this country. Year after year after year after year. Yeah. Yeah, because the reason why they have so much sway is the stuff that they're ruling on

is constitutional in nature. And here in the United States, if it's constitutional, if it's guaranteed by the Constitution, protected by the Constitution, outlawed by the Constitution, whatever. However, the Supreme Court measures the law against the Constitution.

Like you said, that's the law of the land. Yeah. From that point on, any law similar to what the Supreme Court just ruled on, it's immediately null and void. Like it's done. Ed uses a really good example in this. He said like if Maine bans anti-war signs

from people's front yards, and the Supreme Court rules that that law is unconstitutional, well, if Rhode Island has a similar law, or California has a similar law, those laws are immediately illegal, I guess. Right. And it's not like Rhode Island's gonna bring their case

and then California's gonna try their case. Once they rule, it's done. It's been ruled on by the SC. Yeah, and there are nine justices. Right now, there are eight, which we're gonna get into. And obviously having an odd number means you can break a tie.

So with eight, you can have a tie. And when you do have a tie, they've actually thought about this, believe it or not, they arm wrestle, I'm kidding, of course. They don't arm wrestle. But what happens is the lower court decision is what's called passively upheld, which means that for that case only, it's upheld,

but it's not like the Supreme Court didn't rule on it and it doesn't create that nationwide legal precedent forever and ever. Yeah, it's passive-aggressive. And someone could, you know, once they get that ninth person, they could bring up a similar case, not the same one, but a similar one if they wanna have that precedent set.

Right, and the Supreme Court gonna be like, let's try it again? Yeah. But yeah, if you, for a case to be decided, definitively, all you need is a simple majority, five to four, and a lot of cases these days in the United States have like five to four decisions. Oh yeah.

Which is, the fact that that's a pattern and that it's a routine really kind of shows you how, just close to the center that ideologically the bench is. Yeah. And that all it would take was one or two votes that you can really rely on one way or the other. It's gonna be super liberal or it'll be super conservative. Yeah, and these days, it's, I mean,

sometimes you'll get surprises on ideology. Yeah. Like, oh, we thought this person would vote this way or that way, but generally, you've got kind of the four on the left, the four on the right, or you know, you did before Scalia died. And I think Kennedy is sort of the swing vote, right?

Yeah. Generally speaking, of course. Right, it used to be Sandra Day O'Connor. Right. But when they say, oh, we were surprised, we thought they were gonna vote this way. That's putting it about as mildly as you can. What, surprise?

Yeah, yeah. Outrage. Oh, I wasn't expecting that. Fiddle DD. Yeah, and I looked up some of the, I mean, we'll get to this later, but some of the appointees throughout history have been made by like a conservative,

appoints a conservative, and then they might grow a little more liberal over time or the other way around. And they're always like, they're so upset. Right. Like, you know, I thought this is what we were getting. But to me, that's how it should be, you know? Like, that means probably that that judge is deciding cases based on merit.

Right. And not like I'm just dug in and entrenched in one ideology. Yes. Which is exactly what you want from a Supreme Court justice. Should we take a break? Yeah, let's take a break. All right, we're talking about appointments, so we'll get to that right after this.

["Pomp and Circumstance"] On the podcast, Hey Dude, the 90s called David Lasher and Christine Taylor, stars of the cult classic show, Hey Dude, bring you back to the days of slip dresses and choker necklaces. We're going to use Hey Dude as our jumping off point, but we are going to unpack and dive back

into the decade of the 90s. We lived it, and now we're calling on all of our friends to come back and relive it. It's a podcast packed with interviews, co-stars, friends, and non-stop references to the best decade ever. Do you remember going to Blockbuster? Do you remember Nintendo 64?

Do you remember getting Frosted Tips? Was that a cereal? No, it was hair. Do you remember AOL Instant Messenger and the dial-up sound like poltergeist? So leave a code on your best friend's beeper, because you'll want to be there when the nostalgia starts flowing.

Each episode will rival the feeling of taking out the cartridge from your Game Boy, blowing on it, and popping it back in as we take you back to the 90s. Listen to Hey Dude, the 90s called on the iHeart radio app, Apple Podcasts, or wherever you get your podcasts. Hey, I'm Lance Bass, host of the new iHeart podcast, Frosted Tips with Lance Bass.

The hardest thing can be knowing who to turn to when questions arise or times get tough, or you're at the end of the road. Ah, OK, I see what you're doing. Do you ever think to yourself, what advice would Lance Bass and my favorite boy bands give me in this situation? If you do, you've come to the right place, because I'm here to help.

This, I promise you. Oh, god. Seriously, I swear. And you won't have to send an SOS, because I'll be there for you. Oh, man. And so will my husband, Michael. Um, hey, that's me.

Yep, we know that, Michael. And a different hot, sexy teen crush boy bander each week to guide you through life step by step. Not another one. Kids, relationships, life in general can get messy. You may be thinking, this is the story of my life. Just stop now. If so, tell everybody, ya everybody,

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Damn it. Oh, gosh. Oh, gosh. Oh, gosh. Oh, gosh. Oh, gosh. Oh, gosh. All right.

How's this work? Appointing? Yeah. So remember, the Constitution's went, there's Supreme Court, do it. I'm done. I'm out. Right.

I'm going to take a nap. Appointments, it's all just made up, right? There's no qualifications. There's no requirements. You or I could be nominated to be on the Supreme Court. Yeah, technically, you're totally right. If the President was like, I want to figure out the fastest way to ruin my political career,

I've got it. Josh and Chuck, as one. That'd be a good way to do it. Because, again, here in this country, people treat Supreme Court nominations like a religion. Yeah. It's a big, big deal. Not even to get someone through the process,

just to nominate somebody can bring so much blowback from your party, from the voters, from the opposing party, from everybody that you really want to think it through. It's not a haphazard thing. But as far as starting the whole thing off, you have a list of qualified candidates. I think every single Supreme Court justice in history has been a lawyer at least.

Correct. Almost all of them. The only person on the Supreme Court now who isn't a judge is Elena Kagan. But the trend is, most of them are federal judges who are called up to the bigs. Yeah, and a lot of them have even served as clerks on the Supreme Court.

Right. So what they're looking for with all that is experience. Yeah, and for the last 150 years, not only have they been attorneys, but they didn't go to the strip mall. So was it O'Connor? Well, she didn't go to a strip mall law school, but she was a strip mall lawyer, I think.

Yeah. At first. Yeah. But they have all graduated from an accredited legit university. Yeah. Not like Dr. Nick who graduated from the Upstairs Medical Clinic. Is that what it was called? I think it was Tijuana Upstairs Medical Clinic.

A lot of these justices before their Supreme Court appointment have been involved in politics. Some of them have been governors. Some of them have been in Congress. There was even one former president, one Howard Taft. Howard Taft is actually a great story. He hated being president. Hated it.

Loved being a Supreme Court justice. I could see that. He sat on the bench. It groaned. Anyway, I'm home. This is great. It's a bench groaned. Yeah.

I know that for a little while there were people, there were rumblings that Obama might be in line for a Supreme Court appointment. Wow. Had the election gone a different way. Yeah. Which would have been... I could see that.

I could too. But obviously that's not going to happen. No, I don't see Trump appointing Obama. No. All right. So once this nomination goes through and the president, it used to be like a very, I don't know about solitary, probably their little closed circle.

But now, like you said, they get a list that's culled from a group of very smart people that are trying to firmly entrench their own ideologies, basically. Yeah. So they're going to choose from that list the candidate and nominate them officially. And the Senate then will hold the hearings. And just recently, we've seen this going on.

This is happening right now with Gorsuch. Yeah. And the whole thing would have started with Gorsuch getting a phone call from the press saying, hey, I want you. To want me. On the Supreme Court. Yeah. And Gorsuch was like, I don't know what you're saying.

He's like, you're going to be on the Supreme Court and hung up. Right. And that was it. And then, yeah, the name gets released to the press and the Senate says, all right, let's get busy. Let's get to work. And this whole high beehive of activity just starts kicking up around this one poor sap who accepted the nomination and now

has everyone from the Justice Department to congressional aides putting on latex gloves and going right up their rectum to try to see what they can find in this person's past. Yeah. And not only what they can find in their past, but really grilling them on maybe where he or she might lie ideologically. Like, how would you rule in this case that it has happened? How would you feel about this case?

Right. And I was watching a news network the other day talking about how Gorsuch did such a masterful job of like dodging. Deflecting it. Yeah. About like not going on record with how they lean. Right. And that's tradition.

Well, yeah, apparently they like the one thing that you're supposed to do up there is not give anything away. No, because it's a big dance. And if they say, yeah, Joe Biden back in I think the 80s call it a kabuki dance. And Elena Kagan called it a vapid and hollow charade because the senators are trying to ping you down one way or another on your views on gun control, abortion.

Right. All of these hot button issues that the Supreme Court has either ruled on, may rule on in the future, may overturn at some point that really split the country ideologically. And the point of these Senate hearings is basically for the nominee to sit there and not give up anything because if they did do that, then they would have to recuse themselves from that case for having gone on the public record of stating their position.

Well, yeah, and it's the opposition's party's job to sit there and sigh and rub their temples and say, well, it just seems like you don't want to go on record for anything. Right. And they never get to respond. Duh. Yeah. For Supreme Court justice is what always happens.

It's really funny that they play that up, that like the senators act like they just can't believe what's going on even though this has been happening for decades now. Yeah. It's just a big, I don't know about a charade, but I think part of it is they, part of it is to see how well they can hold up to the grilling too. I think that's part of it as well.

But the group that probably plays the biggest role in kind of rooting out what the nominees' politics are, are the aides in the justice department and whatever they leak to the media. Right. Because you're not going to, you wouldn't find anything out about say like Gorsuch from those two days of hearings. Right. No one found anything out about him.

If that's all you know about that guy was those two days of hearings, you didn't read anything else about it. You'd have no idea what his positions were. You'd just be like, that guy's got one of the better haircuts I've ever seen in my life. That's all you would get from it. But the media tends to report on it and they kind of fulfill the role that the Senate fails at every single time.

And it'll be things like Harriet Meyers was nominated by George W. Bush. And he just got a media blowback for it. It was a terrible nomination. But one of the things somebody found was that she had contributed some money back in 1988 like a good 15 something years before to Al Gore's presidential campaign. Like they find like little stuff like that and they try to put it all together to create a picture so that the senators can ask them about stuff or whatever

or the media can campaign a picture one way or another and everyone can try to divine how they're going to rule. Now did Harriet Meyers actually go through the Senate hearings? Or did she withdraw? Well, that's what will happen a lot of times. If there is a skeleton in their closet, sometimes they want to accept the nomination. Not even for that reason. Sometimes they won't accept the nomination because they're like,

now man, I know it. I don't want to go through all that. I'm fine just being on my federal circuit here. But sometimes they'll withdraw if they know that they won't make it through that and they don't want that drug out in public. And sometimes the president will withdraw that nomination to avoid that kind of embarrassment too. Right.

Like Clarence Thomas, I don't know how they missed that or if they, you know, he famously was allegedly sexually harassed Anita Hill. Right. And I don't know if that didn't come to light until the hearings or if... That's what my guess was. Really? I think they started the hearings and they were still doing investigations and they hadn't gotten to Anita Hill yet.

He would have not made it today, I don't think, in today's climate. No, that was nuts. But what's ironic about it is that he wouldn't make it in today's climate with our awareness and understanding of sexual harassment. But those hearings, his Supreme Court confirmation hearings were what exposed the world to sexual harassment and the concept of it that we understand today is rooted in that moment in those three days where Anita Hill stood up and was like, I'm gonna mess up and I'm gonna share it.

And Clarence Thomas famously called the whole thing a high-tech lynching. And then after all this, so he was about to be voted on, there was debate in the Senate, which we'll get to this process in a second. After this came to light, they sent it back to the committee hearings. So he took a huge step backward in the confirmation process. Had to go through three days of Anita Hill's testimony. And then after that, the Senate still said, all right, cool, we'll confirm you.

Yeah, and he was so upset, he said, I'm not gonna talk for seven years. Right, I'll show you. So by and large, though, the vast majority of appointee submissions, what would you call them? Nominations are appointed. Right. Oh, I think it's something like there have been 161 nominations and 124 have been confirmed. I think there's only been 36 rejections.

And so the rest are withdrawals. Or there's one very recent one that I think is the first in history, Obama's nomination of Merrick Garland that just didn't even get heard. Which is very much an unusual step that was taken in the process. Yeah, I mean, this just happened, everyone saw it happen. Obama was in his last year of his presidency. And so Republican senators basically said, not only are we not gonna vote on it, we're not gonna hold hearings.

Some of them refused to even talk to the guy. They just basically took their ball and went home. So we're not gonna do anything. Yeah. There's a lot of blowback from people already frustrated with the notion that maybe these people work for them and they should do their jobs. And that is one of their jobs is to at least have hearings and take a vote. And everyone dug in and he went without hearings, went without a vote. Yeah.

And I don't know what he's doing now. I guess he just kept his regular job. Oh yeah, I'm sure. I don't think you lose your job and you quit and move and everything. Right. Go on the trail. No. Yeah, but I think the more to the point, it's gotta affect your reputation, you know what I'm saying? Even if it was no fault of his own, it's still like a black mark on his history at least.

Well, it was a big deal because this was, it's kind of tough to pin down someone's political ideology as a judge. They have a few ways of doing it. There's something called the Martin Quinn score for Supreme Court justices and they compare how they vote relative to one another. And then there's something else called the judicial common space score, which measures their ideology based on the ideology of their appointing presidents and home state senators. And then I think this from Washington Post, I read an article that they're basically trying to suss out how liberal is Garland. Right. He was super centrist, wasn't he? Well, they said in the end that they looked at all those scores and then they did one more where they basically looked at the law clerks that they hired.

Because generally you're going to hire clerks that agree with you and clerks want to work for judges who they agree with. Right. And they looked at what the clerks, political donations, where they were. What was this guy's score? They said that he was center left in the end. Sure. Would have definitely swung the court more to the left. But at the time, you know, it was sort of a showdown.

It was like, for the Republicans, they're like, do we let Garland go through because he's sort of center left? Or do we take a chance that Hillary wins this election and goes whole hog left to someone that's way more liberal? Right. And in the end, they dug in and, well, everyone knows what happened. Yeah. And I read both sides of this. Like, obviously the liberals and the Democrats were just going crazy over it. They're like, this is the audacity of not doing this. Right.

That because the Republicans were saying, well, it's an election year, so we don't want to put a Supreme Court nominee on the Supreme Court for life during an election year. Right. And the Democrats said, you're crazy. There's been like eight or nine Supreme Court justices who were confirmed on an election year. That's a terrible argument. But apparently that was when the, I think the government wasn't split. Right. There wasn't like the executive and Congress were in the same party. The same party was in power for like seven or eight of those confirmations to have gone through.

So both sides actually had legitimate arguments. Right. So it definitely seemed like a dereliction of duty from the outside looking in. Well, what it did too was it set up the Gorsuch situation now, which is Democrats are delaying the vote. And I think by the time this comes out, they will have voted. I would guess so because usually I think McConnell said by April 2nd, he'd be confirmed was his estimate. Yeah. Well, they delayed it one more week a couple of days ago.

Okay. And regardless, it's, you know, imminent if it hasn't just happened. And so they set up the situation now where Democrats are dug in and they're like, don't expect any votes from us to confirm. Yeah. And then the Republicans are saying, well, if you do that though, we don't need a simple, we just need a simple majority. We can use what's called the nuclear option. Which we talked about in the filibusters episode, I think. Yeah.

So they're the Democrats would filibuster, then they would use a nuclear option, which means they can kind of rewrite the rules and confirm with a simple majority. And then there's a fear that if that happens, that will just be the norm going forward. Yeah. They'll use that for everything. And on the one hand, it will definitely be the Democrats' fault because they used the nuclear option first. Right. But they used it for a bunch of Obama appointees back in, I think, 2013 or 15. And they said specifically this does not apply to Supreme Court nominees.

Right. And then the other way, the Republicans are in control, if they use the nuclear option for the Supreme Court nominees, that'll just be like, there'll be nothing off limits any longer. And yeah, there will be no filibuster power in the Senate any longer. Yeah. It really underscores just how ugly things have gotten. Yeah. It's pretty ugly these days in Washington. It is.

And we should say, well, we'll take a break in a second, Chuck, but we keep talking about the Senate. The House has nothing to do with this, actually. Is that why they're pouty? Yeah, a little bit. It's strictly the president appoints and the Senate holds committee hearings and then debate and then votes. And then the person is either confirmed or rejected, almost exclusively confirmed. Right. And if they are rejected, they can be submitted again, but it usually doesn't make sense to unless something big has happened that makes the president think that they can get confirmed.

Right. Which happened, I think, with Andrew Jackson. Is that right? Yeah. In the 18... 1836. Yeah. He had a guy named Roger Cainey, who I'd never heard of before, who he submitted.

Guy got rejected. And then there were elections that changed the complexion of the Senate that was much friendlier to Jackson. So he did it again. Guy got... He brought him in with a baseball hat on. Yeah. Said, how about this guy instead? Fake mustache.

And George W. Bush did the same thing too, but his guy, John Roberts, didn't get rejected. But he nominated Roberts twice in the same month for two different seats. Oh, that's right. In the second time he got confirmed. So there's a lot of politicking that goes on behind this. A lot of thought goes into it, not surprisingly. And we'll talk about all that stuff right after this. We're going to use Hey Dude as our jumping off point, but we are going to unpack and dive back into the decade of the 90s.

We lived it, and now we're calling on all of our friends to come back and relive it. It's a podcast packed with interviews, co-stars, friends, and non-stop references to the best decade ever. Do you remember going to Blockbuster? Do you remember Nintendo 64? Do you remember getting Frosted Tips? Was that a cereal? No, it was hair. Do you remember AOL Instant Messenger and the dial-up sound, like poltergeist?

So leave a code on your best friend's beeper, because you'll want to be there when the nostalgia starts flowing. Each episode will rival the feeling of taking out the cartridge from your Game Boy, blowing on it and popping it back in as we take you back to the 90s. Listen to Hey Dude, the 90s called on the iHeart radio app, Apple Podcasts, or wherever you get your podcasts. Hey, I'm Lance Bass, host of the new iHeart podcast Frosted Tips with Lance Bass. The hardest thing can be knowing who to turn to when questions arise or times get tough or you're at the end of the road. Ah, okay, I see what you're doing. Do you ever think to yourself, what advice would Lance Bass and my favorite boy bands give me in this situation?

If you do, you've come to the right place because I'm here to help. This I promise you. Oh God. Seriously, I swear. And you won't have to send an SOS because I'll be there for you. Oh man. And so will my husband, Michael. Um, hey, that's me. I know that Michael and a different hot, sexy teen crush boy band are each week to guide you through life step by step.

Oh, not another one. Kids, relationships, life in general can get messy. You may be thinking, this is the story of my life. Oh, just stop now. If so, tell everybody, everybody about my new podcast and make sure to listen so we'll never ever have to say bye, bye, bye. Listen to Frosted Tips with Lance Bass on the I Heart Radio app, Apple podcast or wherever you listen to podcasts. So Chuck, this is not, again, this isn't taken lightly. It is a hollow and vapid charade and a kabuki dance and it's ridiculous in a lot of ways. But it's the end result is really, really important and that is that you have a Supreme Court Justice who's one of nine voices that create the law of the land here in the United States and that they're on there for life. So everyone, again, takes it extremely seriously and there's a lot of things to be considered when a president is even picking a nominee from that list that they have.

Yeah, even though we said there are no rules for qualifications, there's long history that's kind of become accepted as qualifications, which we've talked about in attorney, generally a federal court judge. So once that is kind of sussed out, we talked about ideology a lot and you're not going to find as Ed points out the perfect fit where someone agrees with everything that you agree with as president. But what you want is someone who by and large will side with your side. I mean, let's be honest. He's like us. But again, it's not going to be a perfect fit. Yeah, but you also want someone who probably has a good chance of getting confirmed. That's a big point, right? There's a lot of factors that go into that selection, right? Obviously, if you are a conservative president, especially like a deeply socially conservative president, you're going to try to find somebody who's a pretty socially conservative ideologue, right? And that'll be your pick. But you may want to stop yourself and think about this first. Let's think about this. Who's in control of the Senate? That's a big one.

If it's the opposition party, well, then you may want to consider somebody who's maybe a little closer to the center because your person might get rejected. And if you're just an outside observer saying, well, who cares? They'll get rejected. Pick somebody else. You said you have a list. Go to the next person, right? There's a lot of political ramifications for this, right? So if you are a president and you're picking a pretty radical nominee, it can make you look bad, especially if you're not that popular of a president. Yeah, and it can also have a lot of bearing on midterm elections and how the public views the direction the country is going as a whole. Yeah, because if the Senate goes along with your radical person and the public's not down with that person, that's going to be a negation on the ballot. You're not going to look good at all because of the Supreme Court nominee pick. Yeah, whoever just left, whether it was a retiree or in the case of Scalia, someone who just died suddenly, the outgoing justice is going to play a large part in, and again, depending on what party's in office, what party holds the Senate on who gets the replacement. Can you get somebody pushed through, and if you can't, it's not going to look very good on you as the president.

Yeah, and basically with Gorsuch, I looked him up as far as where he might sit or is predicted to sit. He's pretty right on what I saw. Yeah, obviously he's pretty right, but they said that he would right now, at least, you know, this is from all the studying done from those different methodologies that I talked about earlier, they said he would sit second to the right next to the silent Clarence Thomas, who apparently is the furthest right at this point. Yeah. And then, you know, it goes all the way through down to Sonia Sotomayor, who's the furthest to the left. Gotcha. And then Mr. Kennedy in the middle, man, what a powerful dude he is.

Yeah, really? He gets gift baskets all the time. Yeah, he probably... Muffin baskets. Muffin baskets every morning. And, you know, depending on, and people forecast this like way in advance, I'm like, it's not just Supreme Court justices, it's appointing judges all throughout the system in the United States. Republicans have had a tactic for years now that's really paid off for them, where they have really worked hard to appoint as many judges, conservative-leaning judges throughout the system, and staunchly tried to oppose any liberal appointments. And you get those lower courts.

I mean, people don't pay a lot of attention a lot of times to these lower court appointments, and it's made a big difference, you know? Oh, yeah. Over time, sure, if you've got that many more bullets in the chamber. Just as far as like conservative rulings? Yeah, just all over the country, you know, if you have more of your people in place in lower courts, there are going to be more clerks that work for them that are conservative, and then eventually they rise up and you're probably going to have a better chance of getting a Supreme Court nominee appointed who is conservative. It's an incubator. Yeah, that's a good way to look at it, the farm system. Sure.

They probably love that terminology. Yeah. Well, you were saying Sotomayor is farthest to the left and Thomas is farthest to the right. Right now, that's what they say, yeah. And I think you were saying earlier, too, that, you know, depending on who's being replaced, that makes a decision on who's picked as well, too. Sure. Right? Yeah.

If you get a far right seat with a far left nominee, you're going to get some serious pushback from the right, or vice versa. Yeah. And that's why this election, you know, that we just went through was so important because there are some aging members of the Supreme Court. And, you know, if you get to a point like Nixon got to a point for Supreme Court justices. Yeah, and they turned on him like a pack of jackals. Yeah, three of them did. That's what Nixon thought. Yeah, that's, and this is kind of a pretty good demonstration of how Supreme Court nominees, they're appointed or they're nominated by presidents, but they are in no way meant to be beholden to presidents.

Right. They should not be. It's they're not doing their job if they're ruling in line with what they think the president wants to hear. Yeah, and I guess that goes back to why they're in there for life. Like they probably do feel, I mean, they still have their ideologies, but they probably do feel like, all right, I'm in here. They can't take me out. Right. There's probably some mechanism to take them out if they do something really bad.

It's impeachment. It's the exact same process that you would get rid of a president with where the House impeaches the person and then the Senate votes to convict or not. And then they're removed. They've only been threatened twice. One of them was the Nixon appointee. Oh, really? Yeah. Interesting.

But I was looking, like I said, at Garland and the kind of got started digging into history and in the modern era Antonin Scalia is rated as the number one most conservative justice in the modern era. Is that right? That's what it said. See, because I have Thomas further right than him. And that Gorsuch would be even further right than Scalia. I didn't create that. That's a WAPO created. Well, I didn't create this either.

So this was conflicting sources. Well, this was Stanford University in the University of Chicago, Northwestern and Harvard. All right. I'll defer to yours. Yeah. But it was based on, it just depends on what they use. Let's just say they're both super conservative. Okay.

But I mean, one of the things they looked at and they like to look at his campaign contributions either by, like I said, clerks or by them. And they said, based on Gorsuch's campaign contributions, they said that he would be more conservative than 87% of all other federal judges. Yeah. That's pretty conservative. Rehnquist was supposedly number two. They don't have Thomas. They have Thomas at number seven on my list. Wow.

I don't know about that. They have him on the furthest right right now, at least in the sitting justices. Well, and then there's people, like I said, over time that might change a bit. John Paul Stevens was the guy that was in there for 35 years and apparently he became more liberal over time. And then Burton was very conservative, but he ruled against segregation. It's like you kind of never know. Yeah. And Souter became, he was a Bush appointee and I think he was one of those that like conservatives were really mad at.

They were like, you're not nearly as conservative as we thought. Souter. They would have never picked you. Yeah. And I mean, you just can never tell. You can't tell. And the whole point is that makes a good justice. That's what you want.

Yeah. You don't want to be able to look at them and be like, oh, this is how they're going to vote and be right every time you want to be surprised. Because if you can just point to a Supreme Court justice and say this is how they're going to vote, they're doing a terrible job. They're voting ideologically, not on the merits of the case. Yeah, it sounds funny to say that you want a Supreme Court justice like you never know what they're going to do. And I'm predictable. Like Clarence Thomas, he didn't speak for seven years. Who knew?

Right. I did not see that coming. Sandra Day O'Connor, she wrote a penny farthing to work every day. Right. He didn't know that. Yeah. Judge Rehnquist had a huge heroin problem. Oh, you got anything else?

Yeah, one of the things that Harriet Meyers was criticized for, that Harriet Meyers nomination by George W. Bush, was that somebody had dug up that she had called George W. Bush cool at one point. Oh, really? And that was used against her. Well, they were worried that she would be beholden to him or feel beholden to him. Because he was so cool. Cool. Interesting. Actually, we didn't cover this.

I think it's pretty interesting. Arthur Goldberg, appointment of John F. Kennedy, he was Jewish and he took his oath on the Hebrew Bible and on the traditional official court Bible, which is the Christian Bible. And he signed that because everyone has signed it and he said, you know, I'm not going to make a big deal out of this, even though I'm Jewish, I'll sign the Christian Bible just to kind of maintain that continuity. Right. But when he was, he said it was really neat when he was sitting at his bench for the first time, he opened up the drawer and there was a copy of the Constitution. He said it was a dog-eared copy of the Constitution that actually belonged and it was signed by who? Oliver Wendell Holmes. Pretty neat.

Yeah. It was just in that drawer. Right. He calls him that old Yankee from Olympus. No idea what that means, but it meant something to Goldberg. I'll tell you that. He said he was looking for like a notepad. Yeah.

And there it was. Yeah. He thought that was pretty awesome. Well, I do too. It is pretty awesome. And if you think Supreme Court nominations are awesome, you should go look them up. There's plenty of stuff out there. It's pretty fun to watch.

If you go back through old articles, every nomination cycle or whatever pattern it follows has people griping about how you can't tell anything about this nominee. Yeah. And they never say, well, it's like that for all nominees. Anyway, take a trip down memory lane. You'll amuse yourself. You can also type in the word Supreme Court in the search bar how stuff works. And since I said Supreme Court, it's time for listening now.

I'm going to call this Georgia connection to Trail of Tears. Hey, guys, I enjoyed the episodes on Trail of Tears, which I literally just finished. I live in Calhoun, Georgia, which is home to the new Ekatoa. Ekatoa. She says, yeah, she says Ekatoa. Oh, even serious, sir. And I think that's right. Historic site.

It is home to the print shop where the first English language Cherokee newspaper was printed. The home of Samuel Wusta, among other things. It's beautiful and fascinating place. I think all North Georgia kids have gone on a field trip there at least once. There are also road signs that drive past every time I drive to and from my mother's house indicating that I am actually driving where the Cherokee marched from their homes. Very sobering. The home of Chief Van is also nearby.

I didn't know that. I'm going to go see that stuff. Yeah, because it's not too far. I enjoy your history episodes because the way you explain history and layman's terms and make it interesting to someone like me who couldn't quite stay awake in history class in school. I believe learning about history is important to help prevent society from repeating big, shameful, costly mistakes. Thanks for the work you do and all the stuff we should know. Have a blessed day.

That is from Tiffany Waits. And Tiffany, if you don't listen to stuff you miss in history class from our colleagues Tracey and Holly, you should check that out, too. For sure. It's great. Sounds like it'd be right up our alley. Who was it? Tiffany Waits.

Thanks a lot, Tiffany. We appreciate you writing in. And if you want to be like her and get in touch with us to tell us some cool stuff, you can tweet to us at S.Y.S.K. Podcast or Josh M. Clark. You can hang out with us on facebook.com slash Charles W. Chuck Bryant or stuff you should know. You can send us an email to stuffpodcast.howstuffworks.com. And as always, join us at our home on the web, stuffyoushouldknow.com. For more on this and thousands of other topics, visit howstuffworks.com.

We're going to use HeyDude as our jumping off point, but we are going to unpack and dive back into the decade of the 90s. We lived it, and now we're calling on all of our friends to come back and relive it. Listen to HeyDude the 90s called on the I Heart Radio app, Apple Podcasts, or wherever you get your podcasts. Listen to Frosted Tips with Lance Bass on the I Heart Radio app, Apple Podcasts, or wherever you listen to podcasts.