The Dispatch Podcast - Fight for the Highest Court

Episode Date: September 25, 2020

Why are Supreme Court vacancies more important to Republicans than they are to Democrats at the ballot box? It all goes back to conservative resistance to living constitutionalism, Judicial Crisis Network president Carrie Severino tells Steve and Sarah on today’s episode. “We know historically, it has been conservatives who are incredibly engaged by the Supreme Court,” Severino argues, because “it’s been conservatives on the receiving end of judicial activism.” In recent decades, the Supreme Court itself has made a point of constitutionalizing issues that simply aren’t in the Constitution, which can be traced to the left’s complete misunderstanding of our country’s founding charter. Severino argues that the underlying logic of judicial activism is as follows: “If it’s constitutional it must be good, if it’s not constitutional it must be bad, and likewise, if it’s good, then it must be required by the Constitution, if it’s bad it must be forbidden by the Constitution.” Tune in for some punditry on Democrats’ religious tests for conservative Supreme Court nominees, the prudence of confirming a Supreme Court justice during an election year, and Republican Sen. Josh Hawley’s insistence that he won’t confirm a Supreme Court nominee who hasn’t vowed on record to overturn Roe v. Wade. Show Notes: -Justice on Trial: The Kavanaugh Confirmation and the Future of the Supreme Court, by Carrie Severino and Mollie Hemingway. Learn more about your ad choices. Visit megaphone.fm/adchoices

Welcome to our special dispatch podcast on Fridays. I'm your host Sarah Isker, joined by Steve Hayes. This podcast is brought to you by the dispatch.com. Come try our free membership trial. It's the dispatch.com slash 30 days free. And you can join us for our special dispatch live right after the debates next week. And it'll be super fun. We'd love for you to join us. Try it out. No risk. And you can get all of our special newsletters that are for members only, hop into the comments section, which is my favorite comment section on the internet, and be part of our little weird family. We'll hear a little later today from our sponsor, Gabby. But first, today we are joined by Carrie Severino. She is the president of the Judicial Crisis Network, co-author with Molly Hemingway of the best-selling book, Justice on Trial,

the Kavanaugh confirmation, and the future of the court. Look, she's just an expert on Supreme Court confirmation process. And she's here with us today. I'm super pumped. Let's dive right in. Carrie, super pumped to have you here. You're one of my favorite people on the planet. But I want to start with a forward-looking question. What do you say? to Republicans, let's say, but voters in general who are saying, look, set aside this Supreme Court nomination,

what about sort of a fundamental, like, I don't know, there's like a lock and an unfairness to this that Donald Trump got three Supreme Court nominations during his first term, and Barack Obama and George W. Bush

only got two for their entire time. Shouldn't we be looking at ways to fix this in the future or else we're going to keep having these escalations? Well, look, the escalations aren't because of the number of seats that Donald Trump got to fill versus someone else. The escalations have been going on a long time, starting in 1980 with Robert Bork. So that's not what's causing this.

Sure, there are a lot of people who've proposed different ideas, like having term limits and staggering the seats or different things like that, all of which are really interesting. They all have a little bit of a challenge of how do you phase them in so you don't, you know, have one party or the other unfairly advantaged by it. But the big challenge of those is they would all require a constitutional amendment. So lots of interesting ideas. I would be happy to support one, but it's certainly not something that's going to happen any time in the near future.

What we see just historically is the Supreme Court vacancies don't come up evenly. Some people, you know, like President Carter got zero Supreme Court vacancies, although he did get to fill hundreds and hundreds of other seats he created on the federal courts. And, you know, some people get more. This time we've seen that we got three in a short period of time. And that's, you know, this is, that's just how how those seats they can open up at some point. I think what's worrying to me is the escalation is I absolutely agree a real concern. And I think particular when now we're talking about things like packing the court, which is something that's been a big, you know, move on the left, something that, you know, Biden was one of the few Democratic nominee potentials to reject initially, but now is refusing to rule out. And Harris, of course, is someone who I think has always been open to this.

That really worries me. That's something that even people like Bernie Sanders and Ruth Bader Ginsburg herself are on record saying, bad idea. If you want to escalate the problem, that's how you do it. Because that would, as Sanders has said, you know, you add two seats. They had two seats. Pretty soon you have 87 justices. And Ginsburg pointed to FDR and what a bad idea that was to try to do that, you know, back in that era.

roundly rejected even by his own co-partisans in the Senate. So I think, you know, backing away from that, actually, that kind of rhetoric is probably the best way to avoid further escalation. Steve? Why are we at this point? Why are we at a point where this stuff is so fraught and so partisan and so hostile? How did we get here? Again, I think if you look back, in fact, you can really trace it back before the Bork era.

You know, Molly Hemingway and I, when we were working on Justice on Trial or book on Justice Kavanaugh, we were interviewing people who were in this business, you know, like Lena McConnell or Ed Meese are going way back, you know. And they, if you look for most of last century and then going into this one, the Democrats had a decided advantage, or not even, I don't even think it's fair to say the Democrats. The liberals had an advantage on the Supreme Court. And I say it's not fair to call to the Democrats, because most of the, many of the conservative nominees were, in fact, some of the most liberal members of the court. People like Earl Warren and Eisenhower appointee, Bill Brennan, you know, all of these, those were people that Republicans put on the court. And John Paul

Stevens, afford appointee, one of the most liberal members of the court. Souter, a Bush appointee. You know, it's just time and time and time and again. And so we had a situation where the left actually had pretty much carte blanche to do, especially during the Warren era, anything that they couldn't get done in the elected branches or that they couldn't get done, you know, maybe they got half a loaf in the elected branches. They wanted to come back for that rest of that loaf. That's where they would go to the courts. And they had basically rubber stamp from the courts to do whatever they wanted.

When you get to 1980s, and President Reagan is suddenly saying, actually, that's not what we're going to do. We're going to have judges who are faithful to the rule of law. And what we learned is that was partly his inspiration to that was because he had seen as governor of California. Some of the stuff he was trying to do like welfare reform. But all the things he really felt like were top agenda items for him were getting blocked by the court. So he's like, wait a minute, I realize if you don't have the courts, it doesn't matter what you can get past the Senate, the House. It doesn't matter what legislation you have or your initiatives, you have to have the courts because they're the ones who are going to interpret them. They're the ones who are going to say, you know, kind of basically come up with the content sometimes because you had courts that were literally just adding words to statutes or rewriting statutes and willy-nilly.

Once the left realized there was a move to push back on that, that's when you started seeing things like the Bork confirmation. So as soon as they had an opportunity to start blocking someone, they went forward. and they went all out, and that was something that really took the Reagan White House by surprise. They didn't see it coming, and that's part of the reason it was a, the nomination didn't happen. It continued through, you know, the, the Bush era when you had the Thomas confirmations, and they just, they, when there was a chance in that case, not only of losing a swing seat, which was what happening Bork, and we learned that if you, it's when you have a major shift potentially on the line, that's when things get crazy.

It doesn't have to do with the nominees so much. It doesn't, although obviously there's a lot to be said for maybe a different nominee would have been more friendly or whatever in Bork's case, but a lot of it had to do with the stakes of the seat and the fact that Democrats had the votes in the Senate to do what they wanted to do. In the Thomas seat, it was Thurgood Marshall to Justice Thomas. Wow, they were losing a major icon on their side and getting someone who now knows the most conservative member of the Supreme Court. Not a trade they wanted to make. And so all hell broke loose. They pulled out all the stops. They went crazy. And again, you look and see that in the modern era. Gorsuch, which was a serious fight. People sometimes forget what a big fight that was to get him confirmed. But replacing Scalia with Gorsuch is not a shift on the court. Replacing Kennedy with Kavanaugh was a shift on the court. And that's why it went all sorts of crazy. And then guess what?

Replacing Justice Ginsburg on the court with any of these women that we're looking at, all of whom would be have a very different, I think they fit right in her, in her trailblazing mode in terms of impressive women. mothers, judges, scholars, just real pathbreakers, but they're not a community from the same judicial perspectives. So you're going to see a lot of fighting going on on that front. Do you think that the court has become too important? And if so, what are things that can be done

to get the court out of the culture wars and the voting wars and the electoral politics? Yeah. And I think that's the other half, really. to the, it's the left being so blazing mad about losing that opportunity to, you know, that kind of democracy by other means that they were using on the court because it's not supposed to be the Democratic branch. But I think you're right. The other aspect to it that we've seen really since the New Deal era is part of the problem is the government itself is so much bigger. The federal government, it used to be that a lot of these issues that today the Supreme Court

decides were decided in the states. So the stakes aren't that high. You get 50 different solutions. they much more closely approximate where the American people are. You get a different solution in Texas and in California and Georgia and in Florida and in New York. They're all going to look a little different, right? That takes a lot of the high stakes issues out as the federal government is smaller. And then the Supreme Court itself, I think, has caused some of this by constitutionalizing issues that, frankly, are not in the Constitution. Abortion is the one that people most often get into.

But there's other areas where they'll make stuff into a, a constitutional question that's, frankly, not a constitutional, a U.S. constitutional question. It's kind of this confusion of the idea of, well, if it's constitutional, it must be good, and if it's not constitutional, it must be bad. And likewise, if it's good, it must be required by the Constitution. If it's bad, it must be forbidden by the Constitution. That's just not how it works. That's not the Constitution's job to be our ultimate moral signpost. We've got, that's what we've got other things for that. We've got philosophy. We've got religion. And that's not what the Constitution's job is supposed to be.

but people confuse that, they read their own, you know, desire, some of which might be really good into the Constitution. It makes it a constitutional question rather than leaving it with the Democratic branches. And I would say even that's even a pretty positive view of the nature of these debates, because that assumes that some on the left still care about the Constitution. So they care enough to frame their arguments as constitutional arguments, whereas you have others on the left who, I would argue, basically shrug off the Constitution and diminish it. importance at every turn. Oh, yeah, you've got people who are, unfortunately, I think, seem to feel even more emboldened now to kind of say, ah, this is an old 200-year document, who cares? And that's really a major concern, especially when you're thinking these are some of the people who are maybe advising a future president on who to put on the court, because

there are some people, and, you know, for example, you look at this list of extremists that demand justice put out. I mean, this is one of the groups in the left kind of trying to get Joe Biden to put out a list of judges. And they, the people that they're proposing are most of them activists. They're not even judges. It's so it's not, there's not even a veneer of let's put people who are interested in constitutional question. No, no. This is people who have spent their lives in the special interest world trying to advance one liberal cause or another. And this is just, you know, another venue in which to do that. And that, that's a really frightening prospect to me.

looking ahead to Saturday we're going to get the announcement of a nominee and we're going to have hearings potentially starting the 12th according to some reports what are you looking for to judge a successful hearing and what are we to make of Josh Hawley Senator Holly from Missouri's pledge that he will vote against a nominee who will not say on the record that she, in this case, will support overturning Roe v. Wade. So, first of all, for the hearing part of it, you know, gosh, everyone, I think at this point realizes hearings are mostly Kabuki Theater, and probably I would say good riddance if we decided not to do them at all. I don't think we're doing to do that any time soon. Obviously,

in many parts of American history, most of American history, there haven't been hearings at this point, and it partly even because sort of of the legacy of Justice Ginsburg, she was the first one to refuse to answer questions about her judicial perspective on things, but she She's kind of the most famous. There were at least 60 different questions. She didn't answer about what she believed, how she would rule in certain cases. And she cited judicial ethics standards and said, you know, I can't talk about how these cases are going to go. So all of the things people care about the most, including Josh Hawley, maybe, I would love to know how she would vote in this case.

Sure. But you know what? They're not going to answer it. And they actually, there's a, it is pretty clear because when you look at people who are already sitting judges, you're not taking someone off the street who's not bound by these rules yet. this is someone who's already a sitting judge bound by the federal ethics rules and they can't as she said no hints no forecasts no predictions i can't i can't tell you how i'm going to vote specifically in this case um you know and so is they're going to be hearings they're probably not going to shed there be more heat than light like normal i think on a positive note just for the sanity of everyone involved given a covert world they're not going to likely have um anyone who is a outside group people able to come there's going to be probably i'm just i'm assuming there's going to be press. I'm not sure. I'm assuming there's going to be like Senate, you know, staffers and whatnot and senators all sitting six feet apart, but they're not going to have public seats. And you know what? Thank goodness. I don't think we need another code pink like rally

in the hearing room where people are getting dragged out every five seconds. That wasn't really helpful for getting through the process. It'll be much more efficient. This time as a result, I'm hoping the senators, you know, last time the Democratic senators decided they were going to be the protesters too. They interrupted Senator Grassley's introduction. So, often that his 10-minute introductory statement took literally an hour. So, you know, I hope we don't see that this time. I don't think it played really well for those watching at home on C-SPAN, so hoping they realized that wasn't a good move. So we're going to have hearings. We're going to learn some aspects. I think it'll be a good opportunity to get to, for the American people to get to

know one of these women as well. We know that justice, or that judge, jumping ahead of myself, judge Amy Coney Barrett last time had a really stellar exchange with Senator Feinstein. I think that was more stellar for her than for Feinstein because Feinstein's, you know, grilling her on her Catholic faith and are you an Orthodox Catholic? And do you, I think the dogma lives loudly within you. And that's a cause for concern. That was walking right up to the unconstitutional religious test for office line. I think if we see those kind of things, that'll be another opportunity.

to see her grace under pressure. That was where she first rose to national prominence because people saw her and they're like, wow, she's not backing down. She's not trying to hide from what she believes, but she also had a very great, a careful thought-out answer of why that's not at all relevant to her judicial function. And let's talk about the judicial stuff. And then just quick, finally, to go to the test, I talked a little bit about how judges, and I think whether it's Lagoa or Barrett, they're not going to tell you whether they're going to vote in cases, because they're both federal judges and can't do that. But I think aside from the impractability of the test, and some people have said, well, that's not even a practical test because if you have to get everyone

on the record, you're going to lose all these moderate Republican votes. You know, you can't count to 50. I think the bigger issue is that's not really a judge's job. It's to guarantee to you how he or she is going to vote in a case. That goes against the idea of a judge being a neutral arbiter of the law and not prejudging cases. I'll also point out... So will you try to convince Senator Hawley to drop his test? I've written kind of talking about this test in the Federalist and I think other people have questioned whether it's a good test. The other people just on practical measures, his test, and the way he is, he's wording it a little differently nowadays, but the way he words it,

I think it literally includes Justice Ginsburg. I mean, like, it is vague enough. She has, she expressed concern about Roe versus Wade so much so that some of pro-abortion groups were actually skeptical about her when she went up for the Supreme Court because she had said she thought it was wrongly decided insofar she doesn't actually agree with the legal analysis in that decision. I think she would probably get there through the legal protection clause or through some other, you know, constitutional magic. But not, she didn't think it was decided correctly in that decision. And she thought it was decided at a bad time because like we were talking before. She thought this took something out of the public discourse in a way that was really harmful

to the American public. And so she could, she could have, she could pass that test. So how good is your test? I don't know. Well, it's good if your objective is to get headlines and attention. And I think that that's happened. You mentioned Amy Coney-Barrant, interested in going there. Obviously, the conventional wisdom is that she is likely to be the nominee. I would be very interested to know if you think that that conventional wisdom is right, if you have it. any inside news. We'd be happy to break it here. And beyond that, we've seen early sort of follow-on attacks on her faith in the news media amplified by Democrats, sometimes the other way around. If it's her, do you expect that that will be the focus of this battle?

Well, so far, first of all, I'm here in the same received wisdom as you have. So I think that she does seem like definite frontrunner at this point, just a day away from the announcement. And so far, I think that's what we have seen from the left. Obviously, it's what we saw at her lower court proceedings. There's a lot of reasons to assume they're not going to go down the Kavanaugh route of doing sexual assault allegations, right? Because it's a woman, frankly, also because with their vice presidential candidate having similar allegations against him, but might, you know, be a little bit awkward to try to make that argument. You know, that doesn't mean I would really put anything past them because some of the language

you're hearing from people on left is really shocking and, frankly, I think, threatening where they're saying, we have to remember we need to be radicalized and nothing's off the table. And these are from people who are literally setting things on fire and, you know, and causing actual violence. So I'm concerned about what other directions it can go. Right now it does look like it's the anti-Catholic route. it's also fits kind of with a theme we've seen because it's not just Barrett that's gotten attacked for her Catholic faith.

Senator Harris herself has attacked several nominees because of their membership of the Knights of Columbus, basically treating this nationwide charitable organization as if it were a hate group, simply because they hold to the Catholic faith. Again, no religious test for office folks. It's right there in our founding document. You can't do that.

And it's disturbing to see that. I also think if they do that, it's going to, it's not going to look good. It's just like I don't think it looked good for Feinstein or for, or for Harris when they were going down that road. I think that's not what the American people want to see. And it doesn't fit with Justice Ginsburg's own legacy. She talked very eloquently about how her Jewish faith inspired her in wanting to go into the law and it's in a search for justice. And that's, that's exactly what America stands for. We got people on both sides of the aisle who feel that their faiths in all different, you know, from all

different fates who find that inspiration in that for their lives, for their public service, and that's something we should be embracing, not attacking. Let's take a quick break and hear from our sponsor, Gabby. When you've had the same car insurance or homeowners insurance for years, you kind of get trapped into paying your premiums and not thinking about it. That makes it really easy to overpay and not even realize it. Stop overpaying for car and homeowners insurance. See about getting a lower rate for the exact same coverage you already have thanks to Gabby. Gabby takes the pain out of shopping for insurance by giving you apples to apples comparisons of your current coverage with 40 of the

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health care and the future of abortion rights. Assume that it's Amy Coney Barrett or Judge Lagoa, Barbara Lagoa, how is the court going to look after November 1st, let's say, when they're confirmed, one of them? What changes? Well, you know, obviously, look, that's funny because the questions about health care are obviously not really about health care. They're about either statutory interpretation or the commonplace. clause. And frankly, there's already five votes on the court without replacing Justice Ginsburg to say

the Commerce Clause does not justify an individual mandated if it is not a tax. So if there's either there's not, you know, that that is something that I'm not sure this will even necessarily affect. But I can tell it definitely polls well for them because I was amazed that even I was on, you know, TV right after an ABC right after Nancy Pelosi Sunday morning. And I thought even she was going go straight for Roe versus Wade. She didn't. She just said this whole thing's about COVID and Obamacare. And I was like, the Supreme Court's about COVID. Okay, that tells me where your message testing is, but it doesn't really compute for me. But so clearly they think this is going to be a key issue. I'm not sure she's even the fifth vote on that. So I'm not sure that that actually

adds up in terms of the vote. In terms of abortion, you know, I think that's actually also kind of kind of a question that we really, you know, we'll, we'll see. But I do predict that either of these women would clearly have a different perspective on that issue and on how you interpret constitutional rights than Justice Ginsburg. We don't have either of them on the record saying, you know, I don't think there's a constitutional right to abortion anywhere. So we don't, you know, we don't know in that sense. But we do say, you know that these are women who have histories in Lagoa's case, going back to 2006 in the bench and Amy Cody Barrett's for the last few years and then with her scholarship as well of saying the Constitution means what it's is written and the original

understanding thereof. And it's hard to figure out, you know, how to, how to get to some of the conclusions that Justice Ginsburg had, if that's your approach to the Constitution. Well, it's easy to imagine that Nancy Pelosi wants to talk about health care and COVID, because those are the things on the minds of Democratic voters. The one way in which this is, I think, certainly politically advantageous for President Trump and Republicans. is that it, at the very least, it virtually guarantees that this will be one of the two or three big topics of discussion through the election. And if the assumption was, and I think it was a correct assumption, that before this, it would likely be COVID and the economic fallout from

COVID. And I think I would say President Trump's mishandling of this, it's a gift to President Trump to be able to change the subject. That's one of the reasons Nancy Pelosi would like to keep talking about COVID and health care. But pulling back the camera a little bit more broadly, you've been involved in these things for a long time. You know sort of the politics of judicial nominations as well as probably anybody. Sarah's made an argument for a while, I think a convincing one that generally speaking, these kind of fights motivate Republican voters, conservative voters more than they do Democrats. Is that still true in this case, do you think? Well, you know, we haven't had, obviously, every vacancy looks slightly different. The layout is slightly different. And a lot of people are saying, because it's Ginsburg people in the left, I mean more activated they normally would. That may be, I just think that nonetheless, we do know historically, it has been conservatives who have been incredibly engaged by the Supreme Court. And I think it kind of goes back to what we were discussing earlier, where it's conservatives who have mostly been on the receiving end of judicial activism. The liberals have, you know, kind of taken it for granted as a, is a,

tool in their toolbox. Conservatives have, in time again, had so many courts ruling and misruling in ways that undermined issues they really cared about. And so I think that's why it's such an engaging issue for conservatives. And I think it's something that, you know, everyone always knows there's going to be a Supreme Court vacancy. So to some extent, you know, people, people, anyone who's been paying attention knows that it was likely that there was going to be another Supreme Court vacancy in the relatively near future, whether it was Ginsburg, or Breyer or someone else, you know it's going to be someone, and I think a lot of people assumed it was going to be Ginsburg, right? So this was already in everyone's back of their mind.

Now it's in the front of their mind. And I think that in 2016, we saw that that did have a huge effect in one that where it affected people breaking decidedly for Trump. It was one fifth of voters that said it was their number one issue. But those, in that one fifth, that said it was number one issue broke decidedly, very lopsidedly for Trump. So I think if If history is any guide, we're going to see that effect again, but, you know, we won't know that until November or whenever we actually find out the results of the election. I don't know, I don't know if anyone trusts exit polls this year. Whenever the Supreme Court decides, right, according to.

Right. And whether there's eight justices or nine justices to decide that, may determine whether we get locked in a deadlock for, you know, for the next four years what we do while we debate this. Did Republican senators make a mistake with the Garland nomination by saying that it was because it wasn't an election year? Did Lindsay Graham's discussion even after Justice Kavanaugh's confirmation that he would not confirm another justice in a presidential election year? Is that costing Republicans in terms of how voters see the hypocrisy issue? or is it a we can, so we will? So I think the question there boils down to historic precedent.

And there is very clear historical precedent that is, it's not because I don't think it's wrong to discuss the fact that it's an election year because that's what makes, that is the key factor in the historical precedent we're looking here. But there's two key factors. And the key, one question is we're looking at elections, vacancies that arise during an election year, right? And the other factor, there's 29 of those historically. And in all of the cases that that's happened, a president has made a nomination. So in both 2016 and 2020, squarely and historical president, Obama made a nomination,

Trump made a nomination. The question that helps you determine which of these get confirmed is who controlled the Senate when that happened. And that also shouldn't really be a surprise. But that's not what Lindsay Graham said. You know what? Lindsay Graham has shifted his positions a couple times on judges. I don't want to be accountable for what Lindsay Graham has said on these things.

A couple of times is generous. Yeah. So I'm not, I get you, but I will tell you what I think is it. I'm not saying Lizzie Graham's position as a principled one. I'll tell you what I think the principal position is. And I think Leader McConnell actually has held a principal position. And that is that if you look at this at the history, the precedent is, if the White House and the Senate aren't controlled by different parties, then that nominee is not confirmed.

And if the White House and the Senate are controlled by the same party, he is confirmed. That's no surprise. The Senate says it takes these two political actors to do it. effectively, it's like when the American people give the two different parties, these things, you kind of have a tie. And then it's no surprise that the results of the election are effectively the American people breaking that tie. Here, in 2018, the American people actually gave the Senate a wider GOP majority. That's not tapping the breaks like you had in 2014, where they took the majority away from the president. That same full steam ahead. And so

they're getting what they said. That all makes perfect sense. But then how can Republicans argue against if Democrats were to take the Senate and the presidency argue against court packing because it's the same sort of you know, that's what the Constitution says

if the president and Congress are controlled by the same party they can add justices to the Supreme Court they can get rid of the filibuster or anything else. It goes back to that

can so we will versus we can so should we. Right. And I think the question is the American people want that to be politicized in that way. So yeah, there's no question that Supreme Court can have any number of justices that you want to establish by law. We do have a more than 100-year precedent of having nine

justices. And I think most people, again, including Bernie Sanders, including Ruth Bader Ginsburg, and probably including FDR by the end of his life when he realized, you know, that didn't work out very well when he tried it, realized that messing with those numbers actually can cause problems with these norms. There is a norm for not confirming nominees in the election year if you are opposed, if you're a party opposed the president. And there is a norm for confirming them in the election year. There is not a modern norm for let's switch the number of seats so we can have a majority on the court. And I'll point out too, it's really kind of frustrating hearing some of these things from people like Joe Biden or people, there were scholars, there were legal

law professors. And I would almost put squalers in quote marketing this. saying basically there's a constitutional obligation to have a vote on a judge and election year. So the argument that McConnell said, which is basically, if you want to do the crudest version, if we can, we will, their argument is no, the Constitution says you must have a vote. So if they really thought it was constitutionally mandated in 2016, query what has changed about the Constitution in 2020. That's the fastest constitutional evolution, even for a living constitutionalist I have seen. And I recall Liz Warren, my own law professor, had Professor Warren saying that that was that was constitutionally required. And I thought,

Professor Warren, like, when did you forget all law on earth? Like, of course it's not constitutionally required to have a vote in a particular time. We know people have, many judges have not received votes in American history. And many of them have. And there's no constitutional requirement here. So I would say the Democrat standard seems to be, if it's a Democrat nominee, they should have a vote. And you've got to have a vote. And if it's a Republican nominee, they shouldn't have a vote. That, to me, is a really hypocritical standard. Last question to you, Steve. One of the most interesting things to come out of the Kavanaugh hearings from me, just on a political

or on a political messaging perspective, has been the divergent views on how Kamala Harris conducted herself. If you talk to my friends on the left, they think this was a star turn for her. They think she grilled them very effectively. She suggested she had information, and she really sort of put the screws to him. Talk to anybody on the center right, and they think she whiffed. She didn't end up with the goods. She didn't, she didn't, she, it was a lot of bluster without producing much. What, what do you see her doing in this, in these coming hearings, given the proximity of the election, given the fact that she's the vice presidential nominee on the Democratic side, and given what she went through during the Kavanaugh hearings? Oh, yeah. I mean, if you thought

she was auditioning for president during the Kavanaugh confirmation, which she clearly was, she ran, and she must have thought she did great because she ran literally thousands of different ads, like 3,600 different Facebook ads based on her stuff there, despite the fact that, you know, I obviously would agree with those in the center rights that said she was doing this Perry Mason routine that really fell flat. And you even had some kind of liberal media saying, it kind of turned out to be a nothing burger. And she was, you know, misstating some of his statements about trying to make it seem like he was arguing that abortion or that contracept in all causes abortion or things like that when he was quoting a plaintiff's position in a case. So things like that totally, you know, not

not legit arguments. Some of this made for TV moments where she stomped out of a hearing and said she was going to have, she just couldn't say anything. She was a mom and she and Senator Booker and Saka Fathers, like walked out in silence and then went to a press conference and talked about how great they were. So, you know, from my perspective, I think that falls flat. You know, maybe some people are engaged by it. I think the real question is clearly those in the far left are going to be, what about the

moderate Democratic voters? They really think that's good. But again, if she was auditioning for president then, she thinks she's got it in the bag now. I think she thinks she's president-elect effectively if she wins the, if Biden wins, I think she's just kind of waiting in the wings. So she's certainly going to view this as a, as another political opportunity. What is that going to look like? It's hard to imagine.

Again, she's already gone down the anti-Catholic route. So I think she certainly might go down that route again. I don't think that's very consistent for the party of JFK and for, Ginsburg's own party in to carry on those anti-religious um test but you know that's that's her call um i think it'll be it'll be interesting because it could be almost you know this is the the the vice presidential debate you didn't know you needed but it's effectively between amy coney barrett and uh senator kamala harris so i i guess we'll we're going to find out what tune in with with popcorn but i think she's going to certainly be trying to do some of those same uh you know whether it's a

perjury trap or the made-for-TV moment that she's, that the hearings are going to provide her as a member of the Judiciary Committee. It will at least require her to get out of the basement with Biden. So the Severino family is into escape rooms. How does one do an escape room during COVID? Unfortunately, thus far, one doesn't, although there's some online ones that we're trying to maybe get a group together to do. But my husband's cousins just sent this awesome game where it's like an escape room in a box. They're the ones who introduced us to escape rooms and we're like, this is the best thing ever. We've literally done dozens of these. So this is going to be our first time, not our first time doing an escape room in our home because actually two of our

children created an escape room in our basement a few years ago, which was truly challenging and pretty impressive with some twists and turns. But this is going to be interesting. So we're going to try to do this this weekend. If we can get everyone one place, escape room in a box, I'll let you know how it goes. Steve, have you ever done an escape room? No, I've had lots of life experiences that have felt like escape rooms, but no, I've never actually done an escape room. My oldest daughter loves them. Maybe 2020 is an escape room. Maybe. It feels like it's less fun. Time is running out. Please, just open the door. Well, Carrie, thank you so much for joining us, especially this week of all weeks. I know, you know, tomorrow at 5 p.m. is kind of your Christmas, New Year's, everything

wrapped into one. So we'll be, we'll be rooting for you. All right. Thanks. I'm going to be.