The Daily - Trump’s Supreme Court Finalists

Episode Date: July 9, 2018

President Trump is scheduled to announce his pick for a new Supreme Court justice at 9 p.m. Eastern. Here’s a look at the top candidates to replace Justice Anthony M. Kennedy. 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. Today, President Trump is scheduled to announce his pick for the Supreme Court at 9 p.m. A look at the final candidates. It's Monday, July 9th. We'll make a decision on the United States Supreme Court, the new justice that will be made over the next few days, and we'll be announcing it on Monday, and I look forward to that. I think the person that is chosen will be outstanding. Thank you very much, everybody. I'll be announcing that on Monday.

that on Monday. Mr. President. Monday. Adam Liptak, with hours until the announcement of the next Supreme Court nominee, how many serious candidates do we believe that President Trump is considering at this point?

It looks like we're down to four. All of them are federal appeals court judges. One of them, Brett Kavanaugh, sits here in Washington. Judge Amy Coney Barrett sits on the Seventh Circuit based in Chicago. Thomas Hardiman sits on the Third Circuit based in Philadelphia. And Ray Kethledge sits on the Sixth Circuit based in Cincinnati.

So these are all federal judges who sit on the Court of Appeals. Correct. President Trump wasting absolutely no time with this one. Just five days after Anthony Kennedy announced his retirement from the Supreme Court, the president interviewed four candidates, Brett Kavanaugh, Raymond Kethledge, Amy Coney Barrett, and Thomas Hardiman. Mr. Trump scheduled to announce his decision on Monday. Okay, so take us through these candidates, the four of them, one by one, and let's start on the least conservative end of the spectrum, according to conservatives. Who would that be? So to hear conservatives tell it, they have

the biggest doubts. I'm not sure they're justified, but the biggest doubts about Judge Brett Kavanaugh. Good afternoon, ladies and gentlemen. It's two o'clock. The Judiciary Committee will proceed with the nomination of Brett Kavanaugh to be a judge for the Court of Appeals for the District of Columbia Circuit. Who surely has the most glittering credentials and the most interesting resume items. He has been a zealot-like figure who's appeared in every major legal fight in the past couple decades. I worked for Judge Starr in the independent counsel's office. He served with Ken Starr in the investigation of Bill Clinton that led to his impeachment.

In that capacity, I had the opportunity to argue cases before the Supreme Court of the United States and the D.C. Circuit Court of Appeals. before the Supreme Court of the United States and the D.C. Circuit Court of Appeals. When the votes were being recounted in Florida and in the cases that led to Bush v. Gore, he was there. When Elian Gonzalez, the Cuban boy, was being deported back to Cuba to be with his father, he was there. In July of 2003, I became staff secretary to President Bush.

He served for years in the Bush White House and on the D.C. Circuit, which is the second most important court in the land. I think I've earned the trust of the president. I've earned the trust of the senior staff that I'm fair and even-handed. But that very paper trail and that very rich resume experience and the association with the Bush White House, which not long ago would have been thought to be a good thing among Republicans, has been a cause for some of them to doubt his bona fides. And why? What is it about working for President George W. Bush that would unsettle conservatives about just how conservative Kavanaugh is? You know, bear in mind that we're sort of at that point in the Oscar season where

there's a month left and everyone is pissing on everyone else's movie. So some of this criticism is a bit of a stretch. But there are people who say, sure, he voted in the right direction in cases on abortion and the Affordable Care Act, but he didn't go quite as far as he could have. These are the kinds of distinctions people on the right are drawing. So it sounds like when we're putting these potential nominees on a conservative spectrum, if Kavanaugh is furthest to the left, the band on the spectrum is pretty narrow. is not how conservative they are relative to each other.

It's how conservative they are relative to the middle of the court that they will sit on. The middle of the court will be John Roberts. They will be to the right of John Roberts. And it will be Roberts who will hold the controlling vote on the court. So it almost doesn't matter whether you're between Gorsuch and Alito or you're between Alito and Thomas

in terms of conservativeness. So long as you're to the right of Roberts, you will have done the job that Republicans want done. Which is to make sure that there are five votes in any major decision. Which is to create a reliably conservative juggernaut. Five justices, all of them committed conservatives, as opposed to the world we've lived in for 30 years, which is four liberal justices, four conservative justices, and Justice Kennedy. So all of this infighting

is sort of like the Republican primary. But once you get to the general, everyone is going to love who the candidate is, and whoever the candidate is will accomplish the goal Republicans want to accomplish if confirmed, that person will create the most conservative court we've seen in our lifetime. So, Adam, is the biggest thing working against Kavanaugh actually his experience? Yes, I think so. I mean, one thing we haven't touched on is that you can read his experience with the independent counsel investigation of President Clinton in various ways. I think this goes to a key point, Senator, which is impeachment and then conviction take into account more than just the facts. Because after the fact, he has had some doubts about how wise that investigation was. It wasn't just a simple question of whether there was a violation of law committed, but there were broader considerations for the country.

And that's where it really gets, I think, improper for someone in the independent counsel's office to say whether they think the president should have been impeached. closely with President Bush, he's come to the conclusion that we should be very wary of imposing on the time of the president of the United States, who has, he says, the hardest job in the world. And he says, maybe we should defer civil suits, criminal investigations, criminal prosecutions until he's left office. And that kind of talk in the wake of the Clinton investigation, long before President Trump was on the horizon, may nonetheless worry some Democrats that should he have an opportunity to vote on some kind of case arising out of the Mueller investigation, that he would be too sympathetic to presidential power. And that might presumably appeal to President Trump, a nominee who we can put on the Supreme Court,

might presumably appeal to President Trump, a nominee who we can put on the Supreme Court who might side with him if the Mueller investigation somehow reaches the Supreme Court. Right, that certainly has perfect logic to it. Okay, that's Kavanaugh. Who is next? Gentlemen, it's 2 o'clock,

and our nominee today is Thomas Michael Hardiman. Tom Hardiman of the Third Circuit. Mr. Hardiman comes to this position with an outstanding record. Who would be an unconventional choice. Graduate of Notre Dame in 1987. He didn't go to an Ivy League school. He didn't clerk on the Supreme Court or, in fact, for any judge. What probably appeals to President Trump is his appealing personality, his hardscrabble roots.

He financed his education by driving a cab. I feel that I've found my home in the judiciary with all candor, Senator. And he's a different kind of figure than what we're used to seeing on the Supreme Court. And I just want to point out that when you mentioned his education credentials, it's not that you, Adam Liptak, are a snob. It's that President Trump cares about Ivy League credentials. It's been reported that President Trump wants someone from Harvard or Yale. I'm going to submit a list of justices, potential justices of the United States Supreme Court that I will appoint from the list. While he was a candidate, President Trump published two lists of potential Supreme Court nominees. But I'm going to have a list of 10. We're working on it already. Heritage is

foundation and others are working on it already. And what characterized those lists was almost nobody from Washington, almost nobody from the Ivy League, a lot of people from state Supreme Courts as opposed to federal circuit courts, a lot of people from the American heartland. And it presented a vision of the American judiciary that was sort of at odds with what you see on the Supreme Court today. More egalitarian. Yeah.

Finally, I have kept my promise to appoint a justice... After he's elected, he publishes a supplemental list. ...from my list of 20 judges who will defend our Constitution. And Kavanaugh's on that list. So you sense a kind of tug in two directions of what vision of the Supreme Court does he want to press. And Hardeman was also notably the runner up last time around, right? The guy who didn't get the rose that went to Neil Gorsuch instead.

That's right. And again, you put him on the court, you put any one of these four people on the court, there's not going to be a lot of difference in the voting array. So it's really partly what story does President Trump want to tell. Okay, so who's next, Adam? Our second Sixth Circuit nominee is Raymond Kethledge. Mr. Kethledge is a young man who spent eight years in legal practice in Michigan, beginning as an associate. Who has spent most of his life in Michigan, clerked for Justice Kennedy also. While I was clerking for Judge Guy and Justice Kennedy, I did become, I hope, reasonably well-versed

in the criminal doctrines themselves so that I would be able to draw on that legal experience. Beloved of his clerks, an avid outdoorsman, a big proponent of Second Amendment rights. He has a concealed carry permit himself. And he's written things very much in favor of, say, religious freedom. So there was a case where the question was people at a church-run restaurant who were arguably coerced to work there, who were threatened that they would be out of favor with God if they didn't work for free,

whether they were entitled to back wages. And the Department of Labor sues over back wages. And Judge Kethledge says, the government has nothing to say in this realm. These are decisions to be made within a church. Those are religious decisions, and the government should stick to its business. A decision that protects religious

liberty. Yeah. And Kethledge has written a book. It's about the power of solitude. He's a self-described introvert who likes to go off in his cabin and write places where he's got no internet access. But I'm not sure that your typical introvert makes the best fit with Donald Trump. So this is a dynamic process, but the latest thinking is that we're down to three and that Judge Kethledge is not going to be the nominee this time around. Okay, so that leaves one final candidate we haven't talked about. And who is that? That's Amy Coney Barrett, who became a favorite of social conservatives based partly on her academic writings, partly on her avowed religious commitments to Catholicism,

partly because her life story is quite inspirational. She has seven children, two of them adopted from Haiti, one with special needs. So today we'll consider the nominations of two circuit court nominees, Professor Amy Coney Barrett to the Seventh Circuit Court. But the moment that really propelled Judge Barrett into the forefront was at her confirmation hearing when she was questioned about her writings and stances by Senator Dianne Feinstein. When you read your speeches, the conclusion one draws...

Who said to her... The dogma lives loudly within you. And that's of concern. The dogma lives loudly within you, and that's a concern. And this notion, this meme, this phrase, this headline, this slogan, the dogma lives loudly within you, has been embraced on the right. And you see it on t-shirts and coffee mugs. And that has brightened Judge Barrett's prospects. What may have justified the exchange a little more than usual is that Judge Barrett herself, as an academic, reflected on the role that Catholic faith should play in death penalty decisions, because Catholic teaching, of course, is against the death penalty. And she wrote that

there might be circumstances where a Catholic judge should have to recuse him or herself from a decision involving the death penalty. So that did open the door for that exchange. That's the topic the judge herself has written about. Hmm. And Adam, what evidence, if any, is there that Judge Barrett is guided judicially or otherwise, by her religious faith. You know, I don't know that there's any evidence of that. And at her hearing, she said... Let me start with your very last question and say never. She would apply the law faithfully and without reference to her personal views or her religious views.

Whether they derive from faith or anywhere else on the law. But she has written a little bit about Roe that may be telling. She wrote an article about precedent, and she classified various kinds of precedent. And she listed Roe as one of those that maybe is not as well established as others because it has been the subject of constant criticism since the day it was issued. And she said that lack of popular support is some evidence that it's a less firmly established precedent. And for her to even noodle that question gives you some idea that she might not be a particularly reliable vote to reaffirm Roe. I want to stay on this subject of Roe v. Wade because no matter who the president picks today,

conservatives are going to get their reliable fifth vote in the Supreme Court, it seems, from everything you've told us. It's kind of a dream scenario for conservatives, right? Mm-hmm. So, Adam, to what extent is this list about Roe v. Wade? I don't think it's at the very top of everyone's agenda. I think it's true that once Trump places a second justice on the Supreme Court and we have five conservatives, they will have the power to overrule Roe. I don't think that's going to happen right away. I think there are plenty of ways in which the court can cut back on abortion rights, sustain laws passed in red states to make it much, much harder to get abortions. But the headline Supreme Court overrules Roe v. Wade is not something Chief Justice Roberts is really looking to do when you can get a lot of what you want to accomplish accomplished without that. I don't mean

to minimize this. I think we could fairly shortly be living in a world where poor women in red states are going to find it very hard to get abortions, while rich women all over the country will travel to places they can get abortions. Because abortion is not going away in California and New York, but it might be going away in Mississippi. So Adam, what you're raising the prospect of are state laws that may become more permissible through this Supreme Court. Right. So think back a couple terms ago, we had a case from Texas where Texas imposed restrictions on abortion clinics that would have dropped the number of clinics in the state from 40

to 10 and made it very hard for a lot of women to get abortions because the nearest clinic would be hundreds of miles away. And the Supreme Court, by a five to three vote, ended up striking down those restrictions. I think the next Supreme Court, the one with two Trump justices on it, might well sustain many restrictions like that. And if that's the likely outcome here, rather than the overturning of Roe v. Wade, do you think all four of these nominees that we're talking about would support those sorts of rulings that allow states to do that? That's my distinct sense. We spoke, Adam, to Senator Susan Collins last week, and she's one of a handful of moderate senators who are expected to make or break the president's nominee. If a nominee had demonstrated hostility toward Roe v. Wade in an official capacity, that would cause me great concern.

Concern. With figures like Collins in the mix, why can't we just expect that a couple of these nominees, like Amy Barrett, for example, are too conservative to make it through the Senate and therefore, in a sense, kind of rule them out as possibilities? I think for sure Barrett would be the biggest fight and the hardest lift for the Trump administration. There are conservatives who think it's a fight worth having.

Why? It would have political benefits through the midterm election. It would energize the Republican base. And he's going to get someone on the court sooner or later, even if he loses the first fight. So conservatives might support picking the most polarizing candidate, knowing that it would provoke a big political battle, and seeing an upside to that, even if they don't actually get that candidate confirmed under the court. well be. But it would be that Feinstein moment writ large. It would be a culture war battle where the right is picking a fight and it will either win or it will feel good about itself and energize its base in losing. And as we have said, it's not like the spectrum of choices here is all that meaningful. Yeah, it's a little humorous to see how the right is fighting over these folks, because these are not matters of deep principle, really.

This is who's up, who's down, who's my guy, who's your guy. And the moment President Trump names the nominee, all conservatives will fall behind that nominee. Hmm. conservatives will fall behind that nominee. So Adam, we're just hours from President Trump announcing his choice. Do you have an expectation of who it's going to be? And are you willing to share it?

You know, I absolutely realize, Michael, that this is a process that is shifted by the hour. And the information leaking out of the White House has gone in all different directions. And I will, within a matter of hours, more likely not be proven wrong. But I still think the best candidate from the point of view of conservatives, the one who would make the most lasting impact on the court,

and therefore the one that President Trump ought to pick in his own best interest is Brett Kavanaugh. Adam, we'll talk to you soon. Thank you. Sounds good. We'll be right back. We'll be right back. would be the safest choices for Senate confirmation, a process that may have to take place without any Democratic support. McConnell has warned Trump that Judge Brett Kavanaugh's extensive paper trail and Judge Amy Barrett's opposition from abortion rights groups might allow Democrats to slow the process and prevent a justice from being ceded

by the start of the next Supreme Court session in October. And... On Sunday, 16 days after a youth soccer team became trapped inside a cave in northern Thailand. Four of its 12 members were rescued in a risky underwater operation involving divers from multiple countries. The team became stranded after rising rainwaters flooded the cave's chambers, leaving the boys, who cannot swim, with little food or oxygen. Divers will try to rescue the remaining eight players and their coach on Monday morning.

That's it for The Daily. I'm Michael Barbaro. See you tomorrow.