The Daily - A Supreme Court With Justice Kavanaugh

Episode Date: October 8, 2018

Judge Kavanaugh is now Justice Kavanaugh. We look at what the last few weeks mean for the future of the Supreme Court. Guest: Adam Liptak, who covers the Supreme Court for The New York Times. For more information on today’s episode, visit nytimes.com/thedaily.

From The New York Times, I'm Michael Barbaro. This is The Daily Watch. Today, Judge Kavanaugh is now Justice Kavanaugh. What the last few weeks mean for the future of the Supreme Court. It's Monday, October 8th. Adam, pick us up where we left off on Friday afternoon. Senator Susan Collins, one of just a couple of Republicans who were on the fence, had signaled that she was going to support Judge Kavanaugh,

and in doing so, had basically guaranteed his confirmation. The senator for Maine. Mr. President. Right, so Susan Collins gives a very detailed, very long speech. Judge Kavanaugh has received rave reviews for his 12-year track record as a judge. In which she walks through methodically the reasons she thinks Judge Kavanaugh should be elevated to the Supreme Court. I asked the judge point blank whether he had made any commitments or pledges on how he would decide cases. He unequivocally assured me that he had not.

Notably, she's persuaded, at least, not everyone else is, that he's not going to vote to overrule Roe v. Wade. Mr. President, I will vote to confirm Judge Kavanaugh. It was now a fait accompli that he would be elevated to the Supreme Court. Adam Liptak covers the Supreme Court for The Times. We can vote to confirm an excellent Supreme Court

justice who will make the Senate and the American people proud. I yield the floor. And then on Saturday afternoon, we had the actual vote. Under the previous question, all post-clocher time has expired. The question is on the nomination. The outcome was not in doubt, but nonetheless, the chamber was charged.

Sergeant at arms will restore order in the gallery. The clerk may continue. Ms. Baldwin. Mr. Barrasso. Ms. Baldwin. Mr. Barrasso. Mike Pence was presiding, and people stood to vote and announce what they were going to do. And in the meantime, protesters would pop up.

Senator will suspend. Saying, shame, shame, shame, and women saying I do not consent. Clerk will suspend. The sergeant at arms will restore order in the gallery. The sergeant at arms will restore order in the gallery. As a reminder to our guests in the galleries, expressions of approval or disapproval are not permitted. Mike Pence tried to keep order.

Are there any senators in the chamber who wish to vote or change a vote? And, you know, veering back and forth from formality and chaos, in the end we end up with a 50 to 48 vote. On this vote, the ayes are 50, the nays are 48. The Naser 48, the nomination of Brett M. Kavanaugh of Maryland to be an associate justice of the Supreme Court of the United States is confirmed. So a few hours later, Judge Kavanaugh arrives at the Supreme Court by motorcade, and the public expression of unhappiness, bitterness, rage is really extraordinary. Shame, shame, shame, shame, shame. Inside it was the Supreme Court we're used to.

It's quiet, staid, ceremonial, and in a Supreme Court conference room attended by very few people aside from Justice Kavanaugh, his family, and half a dozen justices. He's sworn in and joins the Supreme Court. Adam, with Judge Kavanaugh now a Supreme Court justice, I want to ask you about the damage that may have been done to the court as a result of the past few weeks. The idea that this process has undermined the court's impartiality. What about this process may have damaged the court in that way? So this was a great victory for Republicans and conservatives.

It was bad for Democrats and liberals. It was terrible for the Supreme Court. The Supreme Court's power rests on perception that people think it deserves to be respected, that people think they will get a fair shake there. And this process in which a Supreme Court seat was treated really by both sides as a political prize. This whole two-week effort has been a calculated and orchestrated political hit. And where the nominee used harshly partisan language.

Revenge on behalf of the Clintons and millions of dollars in money from outside left-wing opposition groups. Really cast the court in a political light where for it to be respected, it needs to be thought to be a legal institution devoted to discerning and applying neutral principles of law and not working along political and partisan lines. And this entire experience did devastating damage to that impression. This is a circus. The consequences will extend long past my nomination. The consequences will be with us for decades. It may be that he was a conservative to begin with, and he's going to vote in a conservative direction. But it may also be that this experience, which was doubtless very hard for him, not something any of us would like to endure, true or false, accusations of this kind of misconduct are deeply, deeply upsetting.

So you can understand that it might embitter him. So you can understand that it might embitter him. And people fear that maybe it makes him even more conservative than he otherwise would have been, drawing comparisons to Justice Clarence Thomas, who faced allegations of sexual harassment in 1991, where he was conservative to start out with, but it's at least possible that the bitterness that lingered from his confirmation hearings caused him to be what he's become, which is the most conservative justice in modern memory. And do we have any evidence to suggest that that's what happened? Well, Clarence Thomas was devastated by his second

set of confirmation hearings where he was answering allegations of sexual harassment. And in his memoir, My Grandfather's Son, he tells the story of hearing the final Senate vote. He was answering allegations of sexual harassment. And in his memoir, My Grandfather's Son, he tells the story of hearing the final Senate vote. He was taking a long hot bath to try to decompress. And someone comes in and says, Clarence, congratulations, you're on the Supreme Court. And he says, whoop-dee-damn-do. Where do I go to get my reputation back?

It's not worth it. He didn't think he would ever really recover from those hearings and that couldn't help influencing the kind of judge he would become on the court. It certainly is consistent with the fact that with few exceptions, he never asks questions. He doesn't give us in the press the satisfaction of getting that public sense of him. And there's a sense in which he's saying, I'll do the job, but I'm not playing ball.

So you said that the Supreme Court's power rests on perception. What's the difference between Justice Kavanaugh or Justice Thomas carrying some kind of partisan animosity with them versus the perception that they are? It's one thing for it to be true, and it's another thing for people to think it to be true. Right? The public pays very little attention to the Supreme Court, and when it occasionally wakes up, and typically during confirmation hearings,

it hears, wait a second, this is not only about law, there's a political element to it, the Supreme Court's public approval ratings drop. When the court issues a big decision, like the 2012 decision upholding Obamacare, even people who approved of the decision but thought the court was being political in how it acted, the Supreme Court's public approval ratings drop. So to the extent the court is viewed as political, even if it really is, even if people who follow it closely know it to be, that perception is very harmful to the court. Well, what are the risks of a court that

doesn't have the credibility? I mean, what are some of the practical ways in which a court that somehow doesn't seem as legitimate loses its place in our system? Well, the risk is simple. The risk is they will order someone to do something, perhaps President Trump, perhaps someone else, and that person will say, why should I? And that's happened on occasion in the nation's history. Andrew Jackson famously refused to follow a court directive. There were questions about how Southern politicians were following Brown v. Board of Education, the school desegregation case. Justice Breyer likes to tell the story that he wakes up the day after Bush v. Gore, which the 2000 case that handed the presidency to George W. Bush. And he thought the decision was badly wrong, but he was nonetheless

pleased that the country did what the court said it should do. In lots of other countries all over the world, there are Supreme Courts, they issue decrees, and people thumb their noses at it. So the danger is that this vital institution to American democracy loses its footing, loses its place. So the power of the United States Supreme Court rests almost entirely in trust in it. It is not guaranteed that anybody, including Congress or the president or a state, has to abide by its ruling. Yeah, it's like the Wizard of Oz. You don't want to peek behind the curtain because the whole thing is built on faith. And if you lose that faith, and if it's thought to be just a third political branch of government, we may be in deep trouble. I feel like the nine justices of the Supreme Court

may not appreciate that particular metaphor of Oz. Sorry. So with this perception in mind, how do we expect the Supreme Court to behave now? What are you expecting to happen in the months ahead? Should we assume that this court is basically going to immediately begin influencing law in a way that reflects the fact that there is this majority of five conservative justices? I think in the short term, the court will try to lower the temperature, keep out of sight, decide minor cases without big political or social controversies in them. And in a year or two, when things settle down in incremental ways, the five-justice conservative

majority will start to move the court to the right. And the question will be now whether the new justice in the middle of the court, the new median justice, who will be Chief Justice Roberts, will go fast or slow. He'll go to the right, but he will kind of be a regulator on a court that, but for his kind of tapping the brakes, will move quickly to the right. And I expect Chief Justice Roberts, who is an incrementalist and an institutionalist who guards the reputation of the court as well as he can, that he's going to try to take small steps, not big ones. Hmm. So it's clear from what you're saying that the chief justice is troubled

by this blow to public perceptions of the court. Do we know anything about how the more liberal justices on the court are feeling about all this? I think people too often don't realize that we agree on a lot. Well, we had just last week Justices Kagan and Sotomayor appearing at Princeton. But there are some issues, some important issues that people care about, in which the court is more closely divided and tends to be divided along lines that you might predict if you looked at who nominated each of us. So I thought Justice Kagan was unusually candid in saying there's a

real problem if people think you can tell what the court's going to do, how given justices are going to vote, by checking the party of the president who appointed him or her. All of us need to be aware of that. Every single one of us. And she's right. That's a real danger. And it makes people fear that there's something deeper going on than the kind of usual judicial politics and philosophy and ideology that what we're entering into is a partisan era in which the Republican majority is going to carry out the wishes of the Republican Party. And in which the court itself kind of operates as an extension of the two parties

and what they stand for and how it rules will be a projection of that. That's the fear and that perception alone will do terrible damage to the court. So in what areas of American life and culture do you expect that we will, in the long haul, most feel the impact of this conservative court? Gun rights will expand. Abortion rights will contract. Affirmative action may be on its last legs. It may become harder to vote. There will be more money in politics. The entire range of the usual Republican-slash-conservative agenda will slowly but surely take its place through the work of the court.

Assuming Democrats get back into power and start passing liberal legislation, they may have a hard time sustaining it before the Supreme Court. So I don't want to understate any of this, Michael. The addition of Judge Kavanaugh to the court is an enormous lasting triumph for the conservative legal movement. I want to ask how all of this might be affected by the midterms, which are in just a couple of weeks. It seems the big question now politically is which side will get more fuel going into this election, coming out of this incredibly bitter fight over now Justice Kavanaugh? Ironically, the behavior of first Democrats on the Senate Judiciary Committee and then the overreach of the protesters at the Capitol have actually energized the Republican base. Whereas before, there was a concern that Republicans wouldn't turn out,

wouldn't be all that enthusiastic because nothing was really mobilizing them. There's now hope by the party that this attack from Democrats on the president's nominee and wrapped up in that, all these complicated feelings about women and men and the presumption of innocence, that that will very much fuel the right and Republicans. How should we think about the midterms and how the outcome of the midterms might continue to influence the court and this story? Well, Democrats are furious by this whole experience. They feel badly mistreated and they're already talking about should they recapture the House, which is a live possibility of going after Justice Kavanaugh. How?

There's talk of trying to delegitimize the court further. I think the court has been to an extent delegitimized by this experience. And Democrats, perhaps playing with fire, might want to go further along those lines and say the court is not worthy of respect and to say that its decision should not be followed. Then there are even more ambitious ideas like court packing. You remember FDR proposed to add seats to the court because the court was striking down liberal New Deal programs. The Constitution doesn't set the size of the Supreme Court. Congress can increase or decrease the size of the Supreme Court, but the country didn't like the idea of fiddling with the number nine, which we've had for a long time now. But even as it

didn't work, it kind of did work because the court got the message. It was like a brushback pitch in baseball, and the court started voting to uphold the FDR New Deal programs. So it may be that there's something to be done along those lines, but bear in mind that requires Democrats to take power. And it's a little premature to be talking about court packing when the only people in a position to pack the court just now are Republicans. Adam, is there a sort of counterintuitive case to be made that Democrats who wish to delegitimize this conservative court are in some way aided in doing so by Judge Kavanaugh's confirmation that the cloud that he carries with him, the pall over his head from Dr. Bozzi Ford's accusation, from Dr. Bozzi Ford's accusation actually allows Democrats to make a case of delegitimacy that they may not have been able to make with another equally conservative judge who wasn't accused of this conduct and who didn't have the kind of performance that Kavanaugh had

during his confirmation hearings. I think that is without question correct. hearings. I think that is without question correct. Now, on the one hand, if, say, Justice Gorsuch, President Trump's first appointee who came on the court last year, had been the nominee this time and was beaten up for some of his judicial opinions and his insensitivity to frozen truckers and so on. That didn't have the same power that the sexual assault allegations did. We didn't have the sense that all kinds of documents concerning Justice Gorsuch had been withheld from public view. We didn't see Justice Gorsuch acting disrespectfully to senators. We didn't see him using, at the confirmation hearings,

raw partisan language. So you're quite right, Michael, that the experience of the second set of confirmation hearings for Justice Kavanaugh does give Democrats a lot of ammunition to question whether they will get a fair shake before the Supreme Court. Right. And with Neil Gorsuch,

we certainly didn't see him carrying with him a very serious allegation of sexual assault, which in many people's minds remains unresolved. That's right. Now, Gorsuch and Kavanaugh will vote together almost all the time.

But the one of them will be shadowed by the cloud you described. Adam, thank you very much. We appreciate it. Thank you, Michael. On Sunday, Justice Kavanaugh started work in his new chambers, preparing for the arguments that the court is scheduled to hear as it enters the second week of its new term. The Times reports that he met with his four law clerks,

all of whom are women, marking the first time a Supreme Court justice has hired an all-female class. We'll be right back. Here's what else you need to know today. Turkish officials are demanding an explanation for what happened to a prominent Saudi journalist who had fled to Turkey for safety, but who vanished this week after entering the Saudi consulate in Istanbul.

Jamal Khashoggi had turned critical of the Saudi kingdom under Crown Prince Mohammed bin Salman, who has cracked down on all forms of dissent. And Turkish officials are now telling the Times they believe Khashoggi was killed and dismembered by Saudi agents inside the consulate, where he was picking up documents that would have allowed him to remarry in Turkey. It happened on the 2nd of October. Me and Jamal went to the consulate in Istanbul to get some paperwork for marriage. His wedding was scheduled for the next day and his fiance was waiting for him outside the consulate. Jamal went into the consulate and I was waiting near the door.

The appointment was at 1 p.m. After a few hours, no one came to me. Security told me no one was inside and that maybe I didn't pay attention when Jamal left. Khashoggi's disappearance threatens to upend relations between Turkey and Saudi Arabia, two of the region's most important powers, and could unravel the campaign by Saudi's crown prince to sell himself to the West as an ally and a reformer. That's it for The Daily.

I'm Michael Barbaro. See you tomorrow.