The Daily Signal - John Malcolm on Supreme Court Confirmation Process, Trump's Top Picks

Episode Date: September 22, 2020

What steps are involved in a Supreme Court confirmation process and are any optional? What do we know about Amy Coney Barrett and Barbara Lagoa, reportedly two of the top contenders to be nominated? Can Democrats pack the Supreme Court? And what lessons did the left and right learn from the Kavanaugh hearings? John Malcolm, who heads the Meese Legal Center at The Heritage Foundation, joins the podcast to discuss all this and more. We also cover these stories:  President Trump pledges to announce a Supreme Court nominee Friday or Saturday. Democrats won't rule out impeaching Trump as a way to slow down Supreme Court confirmation process. Archbishop Salvatore Cordileone of San Francisco says the city's rules on religious services during COVID-19 are discriminatory.  Hosted on Acast. See acast.com/privacy for more information. Learn more about your ad choices. Visit megaphone.fm/adchoices

This is the Daily Signal podcast for Tuesday, September 22nd. I'm Friedna Allen. And I'm Kate Trinco. Today, I'm speaking to John Malcolm, head of the Meese Legal Center at the Heritage Foundation. We'll chat about who President Trump might pick as his Supreme Court nominee, how fast the Senate can confirm a nominee, and what lessons conservatives learned from the bitter Kavanaugh hearings. Don't forget. If you're enjoying this podcast, please be surely a review or a five-star rating on on Apple Podcasts and encourage others to subscribe. Now onto our top news. President Trump's list of Supreme Court nominees has been narrowed to five. Supreme Court Justice Ruth Bader Ginsburg passed away Friday at the age of 87 after a long battle with cancer. The president has promised to appoint a woman to fill the seat left by the late female justice.

On Monday morning, Trump joined Fox News, Fox and Friends to explain when he played. plans to announce his choice for the new Supreme Court Justice. So I'm looking at five, probably four, but I'm looking at five very seriously. I'm going to make a decision on either Friday or Saturday. I will announce it either Friday or Saturday. And then the work begins, but hopefully it won't be too much work because these are very qualified people. No matter how you would look at it, these are, you know, the finest people in the nation,

young people, pretty young. Justice Ruth Bader Ginsburg served for 27 years on the Supreme Court, and Washington, D.C. is gearing up to honor her life and legacy. At the Supreme Court, Ginsburg's body will rest at the top of the steps, per the Hill, on Wednesday and Thursday, in order to allow people to come pay their respects while remaining outdoors. On Friday, Ginsburg will also lay in rest in the U.S. Capitol, an invited guests will honor her in a ceremony there. Some Democrats appear to be considering impeachment as a means to keep President Trump from appointing a Supreme Court justice to fill the open seat left by Ruth Bader Ginsburg. During a press conference on Sunday, Democratic Representative Alexandria Ocasio-Cortez was asked if she thought impeachment of the president and Attorney General William Barr should be considered. She responded, these are procedures and decisions that are largely up to House Democratic leadership. But I believe that also we must consider, again, all of the tools available in our disposal,

and that all of these options should be entertained and on the table. Speaker of the House Nancy Pelosi said on the ABC News program this week on Sunday that we have our options. We have arrows in our quiver that I'm not about to discuss right now, but the fact is we have a big challenge in our country. This president has threatened to not even accept the results of the election. Bizarre is the word White House Deputy Press Secretary Brian Morganstern used to describe Pelosi's words. The speaker threatened to impeach the president again for simply fulfilling his constitutional obligation. Morgan Stern told Fox News, adding numerous Democrats are threatening to pack the court and say things like, nothing is off the table. These are bizarre and dangerous power grabs by Democrats who will stop at

nothing to erode the Constitution to enact their radical agenda. The Justice Department is calling out three cities, New York, Seattle, and Portland for allowing violence and property destruction. When state and local leaders impede their own law enforcement officers and agencies from doing their jobs, It endangers innocent citizens who deserve to be protected, including those who are trying to peacefully assemble and protest, said Attorney General William Barr in a statement, we cannot allow federal tax dollars to be wasted when the safety of the citizenry hangs on the balance. It is my hope that the cities identified by the Department of Justice today will reverse course and become serious about performing the basic function of government. and start protecting their own citizens. On Monday, the U.S. issued new sanctions against Iran,

citing its nuclear arms program as the reason for the sanctions. President Trump wrote in a statement, My actions today send a clear message to the Iranian regime and those in the international community who refuse to stand up to Iran. The United States will not allow the Iranian regime to further advance capabilities to directly threaten and terrorize the rest of the world. Secretary of State Mike Pompeo said the U.S. expects every U.N. nation to enforce the sanctions, adding that certainly includes the United Kingdom, France, and Germany.

We will have every expectation that those nations enforce these sanctions. But the U.N. says that America does not have the authority to impose such expectations on members of the United Nations. America is claiming a right to impose the UN sanctions under the Joint Comprehensive Plan of Action, but America withdrew from the plan in 2018, causing the three nations of France, Germany, and the United Kingdom, also known as the E3, to respond in a joint statement that the notification received from the United States and transmitted to the member states of the UN Security Council has no legal effect. The E3 has sent a letter to the UN Security Council challenging the right of America to impose sanctions unilaterally on behalf of the UN. San Francisco's Catholic Archbishop Salvatore Cordliani is speaking out against what he alleges is discriminatory treatment from the city.

Noting that retail has been allowed to reopen, Cordliani blasted San Francisco for its tough restrictions on religious services. Currently, according to Catholic News Agency, San Francisco Masses Outdoors can have up to 50 people, but only one person may pray indoors at a time, even on the large cathedral. In his homily on Sunday, Cordliani discussed this via the San Francisco Archdiocese YouTube. Now in San Francisco, all of us here are being put at the end of the line. No matter how rich or poor, no matter whether newly or not, arrived or from families that have been here for many generations. It is our Catholic faith that unites us and it is because of our Catholic faith that we are

being put at the end of the line. Months ago, we submitted a safety plan to the city, including masks and social distancing, just like indoor retail stores did. The city said yes to indoor retail, but we Catholics are still waiting to hear back. The city continues to place unrealistic and suffocating restrictions on our natural and constitutional right to worship. This willful discrimination is affecting us all. And yes, it's discrimination.

There's simply no other word for it. We asked, why can people shop at Nordstrom's at 25% capacity? But only one of you at a time is allowed to pray inside of this great cathedral, which is your cathedral. Is this equality? No, there is no reason for this new rule except a desire to put Catholics to put you at the back of the line. For a month I have pleaded with the city on your behalf, advocating for your need of the

consolation of the Mass and the consolation you derive from the practice of your faith and connection with your faith community. City Hall ignored us. City Hall ignored you. They didn't deny it, but they simply ignored you. It has become clear to me that they just don't care about you. On Friday, House Speaker Nancy Pelosi, a Catholic whose district is in San Francisco, was asked about the Archbishop's push for more people to be able to go to Mass.

Per the Associated Press, Pelosi said, with all due respect to my Archbishop, I think we should follow science on this. Next up, we'll have my discussion with John Malcolm about the Supreme Court nomination and what you can expect. America is at a crossroads. Each day we see the penalties of progressive policies across our nation, while night after night our city streets are set ablaze by riots and rage. That's why the Heritage Foundation has developed a plan to help take our country back. The Citizens Guide to Fight for America provides a series of heritage recommended action items, deliver to you each week. Make an impact in your community and in our country. Sign up for the Citizens Guide at heritage.org slash 2020 and join in the fight for America today.

Joining me is John Malcolm, Vice President of the Institute for Constitutional Government and Head of the Meese Legal Center at the Heritage Foundation. John, thanks for joining us. Oh, it's my pleasure, Kate. Good to be with you. So I do want to discuss the legacy of Justice Ruth Bader Ginsburg, But this being Washington, D.C., people did move very quickly away from mourning the late justice to discussing what's next. So first off, we're obviously close to the next election. Is there anything in the Constitution or in precedent that makes it problematic for the President and the Senate to confirm a new Supreme Court justice before the election? No, there's nothing in the Constitution about that.

The Constitution basically says the President nominates, the Senate gives it to do. advice and consent, although they can decide to withhold their advice and consent. And then once somebody is confirmed, the president appoints them. It's a three-step process. And that's all it says. Now, you know, there are, people are citing precedents of what we did in 2016 and what we're doing now and in another confirmation fights. But, and there are an awful lot of senators on both sides of the political aisle that I believe are eating the words that they said in 2016. But there was certainly no constitutional impediment or Senate rule or precedent that would prevent the president from getting his nominee confirmed if the Senate decides to confirm that nominee.

Okay. So on a practical level, you've watched a lot of Supreme Court confirmations. What actually needs to be part of the process and how short could this process actually be? Well, the process has lengthened over time in part because there are courtesy calls at the nominees. make on senators and the FBI does more extensive background checks and provides reports to the senators. But the process can go very quickly. You know, Ruth Bader Ginsburg, when she was confirmed, I think it was something like 96 to 3. These were very different times. Anthony Scalia was confirmed.

I think it was 98 or 99 to nothing. Ruth Bader Ginsburg was confirmed in six weeks. Sandra Day O'Connor, I looked this up, was confirmed in three. 33 days. And in fact, there had been, there is Franklin Delano Roosevelt nominated one justice, James Byrne, who was confirmed the day he was nominated. His next nominee, Harold Burton, he struggled. I mean, it took a whole day from the time he was nominated until he was confirmed. So that was a different time and things are more contentious, but it can happen very quickly. So really, it sounds like the only thing that's absolutely essential is the Senate vote.

It sounds like the courtesy calls and all that, maybe it would be unwise to skip them, but it sounds like that could be done. Yes, that's right. I mean, he could, he could nominate, the president could nominate somebody this week and the Senate could, Senate could, Senate Judiciary Committee could hold a hearing next week. I think the only procedural rule that I am aware of is, you know, and I suppose this could even be waived. The Senate Judiciary Committee typically schedules a meeting for a vote a week after having its hearing as a matter of course if the minority party requests an additional week before a vote that is just granted. So, you know, there should be a vote within two weeks after the hearing concludes for the nominee.

And then it goes to the Senate floor where it could be fast-tracked. So President Trump has said he intends to pick a female justice. He's mentioned two women contenders by name, Amy Coney Barrett and Barbara Lagoa. So let's start with Barrett. What do we know about her? What do we know about her judicial philosophy? Well, we know a lot more about Amy Coney Barrett than we know about Barbara Lagoa. So Amy Coney Barrett, an exceptionally bright woman, not that Barbara Lagoa isn't.

So graduated from Notre Dame law school, clerk for Judge Lawrence Silberman of the D.C. Circuit and then Antonine Scalia on the Supreme Court, spent a brief time in private practice, worked on the Bush for the Republicans in the Bush v. Gore dispute, and then spent most of her time in academia and most of that time at University of Notre Dame Law School. I mentioned that because she wrote, she published in many prestigious law reviews around the country on a whole host of issues that judges deal with and that the conservative legal community cares about. She wrote a lot about originalism. She wrote a lot about a lot about textualism. She wrote a lot about how judges ought to approach precedent and when they should adhere or depart from

precedent. She was quizzed on all of those things and of course her Catholic faith during her confirmation hearing, most memorably, Senator Diane Feinstein from California. talking to her about Roe versus Wade, said the dogma lived loudly in her, and she held up with tremendous grace and poise under fire. I think that Senator Feinstein probably regretted at the end of that hearing, having asked her that question. And since she's been on the court, which was in 2017, she's written over 100 opinions, both majority opinions, dissents and concurrences, and has shown that she is a committed textualist and a committed originalist. She said during her confirmation hearings, for instance, that she would set aside

her personal beliefs and her faith to rule according to the law, certainly as a devout Catholic, which I believe she is. I don't know this for a fact, but I would suspect that maybe she does not like the death penalty on a personal basis, yet she has joined opinions that have upheld, you know, capital sentences. As far as I know, she hasn't ruled. As far as I know, she hasn't in any cases involving abortion, and my guess is the nominee, whoever she is, since we know it's going to be a she, will follow what Ruth Bader Ginsburg did during her confirmation hearing and to say that it would be inappropriate for her offer.

Any hints or suggestions about how she might rule in a case that would be likely to come before the court. As to Barbara Lagoa, people I know who know her like her a lot, She went to, she's Cuban American. She went to Columbia Law School in private practice for a little while. She did pro bono work for the Miami family of Elian Gonzalez. She was an assistant U.S. attorney, federal prosecutor in Miami for a few years. She's been a judge for quite a long period of time.

She was appointed to an intermediate appellate court in Florida by Governor Jeb Bush in 2006. She served on that intermediate appellate court until January 2019 when Governor Ron DeSantis named her as the first Cuban American to the Florida Supreme Court. She did not stay long on the Florida Supreme Court because President Trump plucked her off of that court and nominated her to the 11th Circuit where she actually was confirmed quite handily. I think the vote was 80 to 15, but she's only been on that court since December of 2019. She hasn't issued rulings in any significant number of cases, although recently she did

join an en banc majority. It was a six to four ruling upholding Florida's felon voting law, which required felons to serve their entire sentence, including paying all fines and restitutions before they're eligible to have their voting rights restored. She joined the majority opinion that was written by Chief Judge Bill Pooleman. prior of the 11th Circuit, and one thing which I took great heart in. So Judge Pryor not only wrote the majority opinion, he wrote a one-page concurring opinion that was quite bold,

in which he said, you know, the role of a judge is not to be on, quote, unquote, the right side of history. The role of a judge is to follow the law, be a good judge, whether it is popular or not, and, you know, stand on on, on adherence to the law and the strength of one's convictions and not bend to the popular whims of the day. One other judge joined that concurrence, Judge Barbara Lagoa. Interesting. So, of course, the most recent confirmation hearing was Brett Kavanaugh's, and that was, to put it mildly, very ugly and divisive. Do you think conservatives learned lessons

from the confirmation hearings of Kavanaugh? Do you think the left learned lessons? and how do you think that the Kavanaugh hearing or its shadow could affect this upcoming confirmation process? So I have a variety of answers to that. I'm not sure the Wright learned much because these were lessons they had already learned through the Robert Bork and Clarence Thomas confirmation hearings, which also involved, certainly in the case of Thomas and Kavanaugh,

the politics of character destruction. So, you know, these vacancies don't come up very often. There are only nine of these justices. The Supreme Court considers all sorts of issues, statutory cases, important constitutional cases that define our rights, separation of powers, et cetera. Indeed, the court takes on a lot of issues that I personally think they shouldn't take on and should leave to the democratic process. But because they take on these hot button issues, Senators, want to know the personal beliefs of the, they want to get guarantees as to how these judges or nominees are going to rule in individual cases. And they get frustrated when they don't get answers

that they want to hear. And sometimes they reach out for more personal attacks in order to try to damage or defeat a nominee. You know, this is going to be tough. I don't think that it will be very credible to accuse either Barbara Lagoa or Amy Coney-Barrid, if one of them is the nominee of having attempted to rape somebody in college, which was the allegation against Brett Kavanaugh. I think that both of these women, they're charming and quite poised. We've been through a confirmation process recently. I think the Democrats are going to have to think very long and hard about how they attack these nominees, because if they're viewed as having overplayed their hand, that could have an effect on how the electorate and how undecided voters view them.

It will be particularly interesting, I believe, to watch how vice presidential candidate Kamala Harris, who is on the Senate Judiciary Committee, approaches this hearing. So you brought up the nine justices, which in most of our lifetimes, that's been the status quo. But what is the history of how many justices there have been in the Supreme Court? Have there been court packing attempts? And the reason I ask this, of course, is because representatives Joe Kennedy and Jerry Nadler, who's chairman of the House Judiciary Committee, both tweeted over the weekend, comments that indicated that they think the Democrats should add more Supreme Court justices if a Trump nominee gets through.

So is this a viable proposition and how does it fit into the larger picture? So let me go over the history of that and then I'll tell you whether I think it's a viable proposition. There is nothing in the Constitution. It just says that there shall be a Supreme Court and such inferior courts as Congress may establish. The number of Supreme Court justices is established by statute. And it has changed over time, although there have been nine justices for a long time.

There was one serious attempt in our nation's history to try to pack the court. So President Franklin Delano Roosevelt was very frustrated that a majority on the Supreme Court were issuing rulings, striking down large portions of his New Deal. He didn't like this. So he proposed a plan to basically pack the court. They were the number of the justices were elderly. that basically said that he would get to name another justice for every justice who was over 70. That did not happen. It did not happen for a couple of reasons. One is he could not get enough

Democratic support. They controlled the Senate at that time, fairly substantial majority. He couldn't get enough of the Democratic senators to go along with that plan. One of the reasons why he couldn't garner that kind of support, and this has been referred to historically as the switch in time that saved nine, is that after Franklin Delano Roosevelt put forth his court packing plan, one of the justices, I think it was Justice Owen Roberts, started changing his votes and started voting with the, you know, what had been the four dissenters to uphold large portions of the New Deal. And, you know, once Justice Roberts changed his vote and the New Deal was being upheld and not being struck down, I think some of the air went out of that balloon in terms of that effort to pack the court.

Now, I think it is likely that if the Democrats keep the House and take control of the Senate and win the presidency, that they will pack the court. Not just the Supreme Court, by the way. They'll probably add additional slots to the lower federal courts of appeals and additional District Court judges too. The last time that happened on any kind of a broad basis, not the Supreme Court, but lower courts, was under Jimmy Carter. And the reason, and I, and I, so I think it's highly likely that they, that they may do it anyway. But certainly if President Trump pushes through a nominee and he loses and the Senate is retaken by the Democrats, I think it's a virtual

certainty that they will pack the court. The biggest impediment to them at the moment is is that while the filibuster has been done away with, nuked is the phrase that was used, the nuclear option was used to do away with the filibuster for nominations, the filibuster still lives for legislation. And again, you'd have to pass a statute to change the number of justices on the court.

But I think the Senate has, Democrats have already made it quite clear that they are fully prepared to go nuclear on the legislative, billabuster two. And if they do that, all they need is for the House to pass something, 51 senators to pass it to, and for a president to sign it. So to change tack, many conservatives have been frustrated with the recent decisions by Chief Justice John Roberts. Justice Neil Gorsuch also disappointed some conservatives with his decision in a recent ruling on Title VII in gender

identity. We also have Republican Senator Josh Hawley proposing that it's time for a litmus. test on abortion for judicial candidates. So do you think conservatives need to vet Supreme Court nominees any differently than they did in the past, or how should conservatives approach this? Well, it is certainly true that there have been rulings, obviously the Bostock case, which you alluded to that was written by Neil Gorsuch, several cases, the two Obamacare cases, the DACA case, the citizenship question on the census. the June medical, the abortion, we're cheap justice. John, you're just putting me in a bad mood at this point.

Well, I'll say this. Look, even your friends, even people who you like and admire, who will rule the way you like 90 plus percent of the time, are occasionally going to disappoint you. I mean, even Antonin Scalia, and no conservative would say that Anthony Scalia was anything other than a fantastic justice, joined an opinion that held that burning an American flag was protected speech under the First Amendment. And he wrote an opinion called Employment Division versus Smith that people of faith believed really watered down the

free exercise clause of the Constitution. So even great justices whom you like and admire will occasionally disappoint you. These are independent, minded men and women. And you look to see whether they are, you know, issuing opinions with fidelity, even if you think they got it wrong, or whether they are really tacking to the left, which many Republican appointees, John Paul Stevens, David Souter, certainly Earl Warren and William Brennan have done. Now, I understand that frustration and I understand the desire of some to say the vetting process has not work well. We need to have a litmus test. I am not a fan of litmus. I am not a fan of litmus. tests for a variety of reasons. One is I think that judges take an oath that they are not going to

prejudge cases until they are presented with the case and consider the arguments of the lawyers and any amicus curiae that weigh in on an issue. And I think that that is something that judges should take very, very seriously. The other thing is, is that Josh Hawley said, well, I want to have a litmus test on Roe versus Wade, and I want it to be for, you know, anybody has to have said before they were nominated what their views were. Well, if you went with that, then there are some justices like David Souter who probably get through.

And there are other justices like Clarence Thomas, who was asked about this in his confirmation hearing. He said, look, I focused on other issues. I haven't spent a lot of time thinking about Roe v. Wade, who do not get through. And so far as I'm concerned, any rule that would keep Clarence Thomas off of the Supreme Court is a bad rule.

Let's switch to Ruth Bader Ginsburg's legacy. You know, she served nearly 30 years on the Supreme Court, and before that, obviously, had a long career as a lawyer. How will she be remembered in the legal world? Well, she was a giant in the legal world in a way that actually very, very few lawyers can reach. So she is the equivalent for women's rights that Thurgood Marshall was in terms of the rights for for African American. I mean, you know, she graduated from Columbia law school. She was

at Harvard for three years and then she transferred to Columbia because her husband had gotten a job in New York finished, tied for first in her class when she was at Harvard. I think she was the first woman on the Harvard Law Review. You know, she struggled to get a job because she was a woman. was a woman. She became a professor. And then she started in 1972 the American Civil Liberty Union's Women's Rights Project, and she mapped out a strategy, a very successful one, to advance women's rights. She argued six seminal cases, winning five of them before the U.S. Supreme Court and lots of cases in the lower court. So in terms of advancing women's rights, She is clearly a legend and deservedly so.

She then served with distinction for a number of years in the D.C. Circuit Court of Appeals in 27 years on the Supreme Court where she was certainly a liberal icon. So while she certainly left her mark as a judge on the D.C. Circuit and a justice on the Supreme Court, where she really left her mark was as a lawyer. And to show how much respect she had in the legal community and how different times were,

even though she had started this ACLU women's project and then, you know, where a lot of Republicans did not like the positions that she advocated for, I think she was confirmed something like 96 to three. And on the flip side, Anthony and Scalia was confirmed. It was either 98 or 99 to nothing. But those times are long gone now. So speaking of those times in your op-ed for the Daily Signal with Elizabeth Slattery, you guys talked a lot about what great friends she and Scalia were. And it really does seem to be the sort of friendship that it's a little baffling in 2020 and also, sadly, seems to be going out of vogue in Washington, D.C. So why were these two such pals? I think they knew that the importance, impact that they had had on the law. They served together

on the D.C. Circuit before they were of justices on the Supreme Court. I think they admired each other's writing abilities and legal acumen. they shared a lot of common interests. Most prominently, I suppose, that everyone knows about as they both loved the opera. And actually, I love the opera too. And I would see them at the opera together. They were in operas on the Washington National Opera on occasions. And, you know, they obviously enjoyed each other's time. I remember speaking not with Justice Scalia, but with Mrs. Scalia, Maureen Scalia, and she would just wax rhapsodic about what wonderful people

Ruth and Marty Ginsburg were. And at one point, I remember the two of them were being interviewed and were asked about this friendship, which many, many people consider very bizarre. And Justice Scalia looked at her and said, well, they're in her legal opinions. What's not to like? And they fortunately were able to have respect and admiration

for each other. Clearly, they disagreed without being disagreeable and could put aside their political and legal differences to forge this great friendship. And you are right, those sorts of relationships are now going the way of the dinosaur. So last question, we are seeing a ton of interest in the Supreme Court nomination. And in recent years, interest seems we've only grown, you know, a lot of donations flow into both sides. And while, you know, if that's Great for you. Your head of a legal center. Do you think it's good for America that we care this much about who's on the Supreme Court?

Is this what the founders had in mind? Well, I think the reason it's not great for America is also the reasons why the founders would have been befuddled, which is the Supreme Court by expanding areas of the Constitution, just in my opinion, finding a right of privacy, expanding the Commerce Clause. so that they not only consider commerce that happens in between states, but they get into a lot of issues about things that happen totally within one state that have the most minor of economic impact. They've expanded things like the general welfare clause.

Instead of saying a law has to apply to the general welfare, it now applies to bridges to nowhere in Alaska. That's good enough to pass the general welfare test. Because the Supreme Court has expanded the Constitution in this sort of way through living constitutionalism, the Supreme Court now gets involved in so many issues that the founders would have believed should have been left to the democratic process. And because the court gets involved in all of those issues, the public comes to view them as super legislators. And if you view them as super legislators, then you kind of care about how they vote on the issue that you care

about. And that's why these things become blood feuds. Well, John, thank you so much for making the time to talk to us today. Good to be with you. And that'll do it for today's episode. Thanks for listening to the Daily Signal podcast. You can find the Daily Signal podcast on Google Play, Apple Podcasts, Spotify, and now on IHeart Radio. Please be sure to leave us a review and a five-star rating on Apple Podcasts, and please encourage others to subscribe. Thanks again for listening and we'll be back with you all tomorrow. The Daily Signal podcast is brought to you by more than half a million members of the Heritage Foundation. It is executive produced by Kate Trinko and Rachel Del Judas, sound design by Lauren Evans, Mark Geinney, and John Pop.

For more information, visitdailySignal.com.