The Dispatch Podcast - Replacing a Supreme Court Justice

Episode Date: January 28, 2022

On today’s podcast, Steve moderates a conversation about the politics of replacing Justice Stephen Breyer on the Supreme Court. Joining Sarah on the panel is Gregg Nunziata, who worked on the Senate Judiciary Committee, and John McCormack, Washington correspondent for National Review. What does replacing a Supreme Court justice look like from behind the scenes? Our panel has that answer and more.   Show Notes: -Stirewaltisms: A Supreme Break for Biden -TMD: Breyer to Retire -Advisory Opinions: Justice Stephen Breyer to Retire Learn more about your ad choices. Visit megaphone.fm/adchoices

Welcome to the Dispatch podcast. I was your host, Sarah Isgar, but today my microphone is being stolen. It is being wrestled away from me as we speak by Steve Hayes. Sarah, I have to take the microphone because not like on any other day. It's not like on any other day we don't want your expertise. But on today, we particularly want your expertise because you have lived through things that are directly relevant to what we're going to be talking about today.

And we have put together an outstanding panel to discuss. the retirement of Justice Stephen Breyer and the nomination fight to come. We have with us Greg Nunziata, who has vast experience in judicial nominations on Capitol Hill and general expertise on all things legal. Greg writes for us and has served on Capitol Hill. We also have John McCormick, former colleague of mine at the Weekly Standard, now at National Review. John has spent a lot of time covering judicial nominations and exactly these kinds of fights.

Thank you all for joining us, and as Sarah would say, let's dive right in. Greg, I want to start with you. We're recording this late afternoon on Thursday. A couple of hours ago, Justice Breyer made an appearance at the White House alongside President Joe Biden. They all said nice things about one another, about the courts, about the process, and now there is officially this opening on the Supreme Court. Given your experience, what's happening now behind the scenes on Capitol Hill?

But who's making preparations? What are the conversations that are taking place to tee this up so that it might move in what Senate Majority Leader Chuck Schumer said will be an expedited fashion? Yeah, well, first, you know, obviously publicly senators are making comments and they're trying to influence the White House, shape the context in which this debate happens. You know, Republicans are saying what they expect. Democrats are saying what they expect. Democrats are probably trying to influence the White House's.

choice, despite some senators believing advice and consent means that they should be able to advise the president on his choice. Presidents don't listen to senators typically on Supreme Court nominations, but they may, you know, entertain the phone call. Mechanically, the Senate Judiciary Committee, it's a lot of work. I mean, it's a big job, and they typically request a supplemental budget so they can hire additional staff and plan for this week's long process. The public part, the hearings we all know, but a lot of work goes on behind the scenes in reviewing everything a judge has ever written. Now, every social media post they've ever made, as well as the kind of the more confidential background investigation of character issues over their entire life.

So it's a busy time now, and it will be on the hill for two to three months. And it just takes a lot of attention and a lot of resources. So if you were on the hill right now and you were going to be helping to run this nomination, helping to get it through. Would you be at this point waiting for the White House to give you a shortlist? Or do you only get the nominee? How does the vetting process work? And what's the role of Senate staffers and senators in that process? Yeah, they are not very much involved in that process. White Housees tend to keep this pick close. And that's different from other judicial nominations. The district courts, the senators almost run the process, appellate courts. It's very much a conversation between both

ends of Pennsylvania Avenue. But Supreme Court, it's a legacy item for the president, and they take it very seriously, tend to hold their cards pretty close to the best. I was there for the two Bush Supreme Court vacancies, and I'll tell you, both times, you know, we did deep research into what we thought was the short list of potential nominees, and it was an incredible waste of time and resources. I don't know if Senator Durbin staff is doing that now, but we made that mistake. And then, of course, we got Harriet Myers one of those times, who was not on our list at all.

So more fruitful work, honestly, for the committee is doing research on the state of the law because the senators are going to want to know kind of where things are on big issues, like abortion and guns, but also, you know, parochial issues. Senators from the West might want to press a nominee on water rights. rights, for instance. And their staff is going to want to know kind of what the recent cases are there and prepare that background. So then when they have a name, they could kind of apply that person's record to those issues. Sarah, you worked on two nominations in the Department of Justice. If you were at the DOJ today, what is the department's role in this process?

I mean, Greg just made the point that this is a very closely held secret at the White House. It's the president and a couple of his top advisors, typically, I'm not surprised that they don't share even prospective lists with Capitol Hill because the old truism in Washington is anything that goes to Capitol Hill is leaked. It's as good as making it public on purpose. So what would the DOJ's rule be at this early stage in a nomination process? So actually, in some sense, this is, DOJ has two big roles, and this is one of them, which is they're building the binders,

on that short list. The White House has called over, and even without the White House calling over, frankly, the shortlist that all of us are talking about, Judge Kintaghi Brown Jackson, Leander Kruger from the California Supreme Court, you know, the handful of others. They may even be building a binder on Vice President Harris, not because they think she's likely to be picked, but, you know, that's DOJ's job at this point is cover the waterfront. And by binders, by the way, opposition research binders you want everything every decision that they've ever made on every court and then you're going to have lawyers go through and flag the ones that are on issues that could be of interest anything first amendment of course 14th amendment probably fourth amendment definitely

and you're just going through all of that it is painstaking and a lot of trees die at the department of justice today um and then you know they can't finish that process basically before the White House has already picked. They're also sometimes part of the process of vetting these candidates in the interviews. You may have the Attorney General or the Deputy Attorney General depending on their relationship with the president over there for some of these meet and greets that are going to happen. You can remember during the Gorsuch, Kavanaugh and lesser extent Barrett time of the, you know, the sort of reality TV show aspect. That's not just Trump. That actually is a pretty real part of this. And we end up with the

stories, of course, decades later, but I clerked for Edith Jones on the Fifth Circuit. And the very famous story is that her and Souter both went in at the same time for their interviews in the Oval office and that they took Souter out the front door and EHJ, as we call her, out the back door. And that is how you end up with David Souter on the court, or, to put it another way, how close. close you were to having Edith Jones on the Supreme Court, which would have transformed really Supreme Court history in the last 30 years. It's like the white smoke, looking for the white smoke front door or back door. John, this is one of these interesting Washington stories that's sort of unique to cover. I mean, there are a lot of things in Washington that you can,

you know how to cover, you know how to approach. But this is a story with lots of starts and stops. So there's a flurry of activity now. Everybody's very excited. People had anticipated this possible opening. Sarah had predicted it in our company Slack. There's a flurry of activity now. And then things go sort of quiet as the people that Greg was talking about and the people that Sarah was talking about do their jobs. As a reporter who's looking forward to covering this and has covered and broken stories on recent Supreme Court nominations. What are you doing now? Are you just trying to source up?

Are you trying to figure out who are the Greggs and the Sarahs in this process now? Who knows? And like laying the groundwork for pestering them when things heat up? What's your approach right now? I'm just, you know, in the last 24 hours, just sort of trying to read up, you know, what's publicly out there in the public record? record as a national review reporter. My sourcing isn't exactly great among Senate Democrats. But, you know, I'll be down in the Capitol asking the senators themselves questions about

an eventual nominee, you know, when that nominee is out there. But, you know, I haven't really dug too deeply into this so far. So I do think, you know, right now, I mean, what's most remarkable is how everyone is saying, I think it's true. This will be, I mean, this will be a break from the previous nominations in that it seems like it's going to be fairly normal uh there doesn't seem like there's going to be a lot of fireworks uh you know Biden's going to pick someone on a short list there's a very few number of people you can pick uh katanji brown jackson just got confirmed she hasn't written a single uh opinion i believe and so it's it's hard to see you know the only two things you can think of actually blowing this up would be you know one a huge

personal corruption scandal that didn't somehow come up already which you think it would, or two, literally a senator dying from a state that has a Republican governor and gubernatorial appointment. So, like, we're talking about, like, very remote, you know, one in a thousand sort of chances of things actually going south. But, of course, if we judge our recent political history based on things that were very unlikely and yet came to pass, we should just pencil this in because something bizarre will happen at that point, right? Greg, to what extent would you expect, given what John says in describing kind of the dynamics? Are Democrats, our Senate Democrats right now and the White House, in your view, even taking into consideration what Republicans might think of a prospective nominee?

probably not to a great extent you know i mean the way we approach supreme court nominations has really changed over the last several decades where you know once for most of the 20th century the supreme court confirmation process was principally about qualifications character and fitness and that's changed and now it's to a great extent an ideological test that senators are applying and senators of each party, almost all of them presumptively vote against nominees from the other party's president. So there's not a lot of Republican votes to get. That said, there are probably some, you know, Susan Collins and Lindsay Graham, because

Lindsey Graham was such a firebrand during the Trump years, and people forget this, but those two Republicans have a history of supporting presidential nominees presumptively. And then there may be one or two others that are getable. Lisa Murkowski comes to mind. So if I were the White House, I would think you're starting with not 50, but you're starting with 52, 53 votes. And it's a question of who might you lose along the way. And I agree with John that unless you have some kind of dramatic scandal or something

like that, this should go smoothly if they do their homework and choose someone. And I think, you know, if there are a Republican votes they're going to get, they're only, they're going to get them from people like Susan Collins who believe that the presidents are, that presidents are generally entitled to their choice. They're not going to kind of flip more Republicans by picking a more moderate nominee, for instance. I just, that's, that's not how these things play out any longer. If you were, uh, advising the White House on this, Sarah is that, would that be your approach? Don't worry about Republicans. Get your 50 plus one.

be happy and move quickly. Yeah, right. I mean, you know what they call the Supreme Court nominee who only got 51 votes? Justice. So don't worry too much about it. I think, though, that when you're looking at which nominee to pick on your short list, there are other things to consider other than just the vote. I think everyone on his short list will be able to get 51 votes. And so then it's like, okay, well, then why pick one over the other? I think there's a reason that I'm just going to call her KBJ, because generally in appellate courts, you refer to justices by their initials if you're sort of in the clerking side. And I keep messing up her first name. And it's embarrassing to me that I keep

doing that. Kintaghi, I can say it, but I'm just, I'm worried. So, look, she has a few things going for, as Greg said, recent confirmation. And that's a huge plus, plus three Republicans, Collins Murkowski and Graham. It will be hard for them. And regardless, the attention will be put on them of how could you switch your vote after six months? Very different than what we saw maybe with Gorsuch and Kavanaugh where yeah, Democrats had voted from, but it had been many years at that point. And so they could come up with reasons why their votes had changed closer in that sense to Amy Coney Barrett. Then a couple other things going for her, I think. You know, this is like a little known part of the process, but the nominee, there's sort of three parts to this. There's

the DOJ team, they're really doing vetting the like nerd work, really what DOJ does normally. The White House team, they're doing the political work and frankly have all the power, but then there's also the nominees team. And I bet the Biden White House doesn't actually have a good sense of this. And so if I can offer them any advice, do not misunderstand what will happen with the nominees team or that you think they won't have a team of their own. Oh, they will. And that team is made up of former clerks, you know, sort of close advisors or professors or whatever else it is. And those people have the trust of the nominee. The nominee doesn't know the White House staff, thinks they're overly partisan and political. They think of themselves as judges

who don't do that sort of work in the muck and the mire. It was a point of contention, I would say, more with the Gorsuch confirmation, in part because the White House team wasn't really set up. That was just in the first few weeks of the Trump administration. But, you know, there was like a shadow team doing all of this as well. And then, of course, you have the Sherpa for the nominee who will generally be a former senator. You know, Steve, I think there's a very good chance that Senator Heidi Heitkamp could be the Sherpa for whoever the nominee is. You're looking for a former Democratic senator. I think it'll be a bonus. If it's someone who has good relationships with their former colleagues, like I'm describing Heidi

Heitkamp, but we'll see. Even after her critical comments last week? Maybe. You know, for Gorsuch, it was Kelly Aott. For Kavanaugh, I believe it was John Kyle. John, do you remember who it was for Amy Coney Barrett? I don't. Remember who the Sherpa was all of a sudden.

But, like, all of these things are things that the White House has to get in the weeds on and think about, because they're going to get 51 votes. And so I think they should think of this like the Kagan. confirmation hearing, the likelihood that Republicans find something to really beat her up on when she just went through her D.C. Circuit confirmation is close to zero, similar to Elena Kagan being confirmed to Solicitor General. So what you're going to want to look for, process problems, you know, hypocrisy issues they can bring up. With Elena Kagan, it was that she wasn't qualified because she hadn't served as a judge before. Full disclosure, by the way,

I spoke on behalf of Elena Kagan at White House briefings and things like that. saying that I thought she was very well qualified as a former Federalist Society president at Harvard Law School. So, you know, man, in the end of the day, though, and I've heard this from every administration, the president ends up going with their gut every time. Like all these people do all this homework, and binders and binders and forests are cut down.

And in the end, he's like, I like that one. Which arguably is a really good way to do it, honestly. He's the one who's elected. John, I mentioned a moment ago that Chuck Schumer in his statement immediately upon the opening suggested he really wants to expedite this. He wants to move. Do you have any sense of what that means in practical terms? I mean, how fast, how fast is it possible to move? And what are the implications of a quick process? Well, he said, I think he said he wanted. You know, this confirmation to go as quickly as Republicans confirmed any county Barrett.

Ruth Bader Ginsburg died on September 18th of 2020. You know, Barrett was confirmed by the end of October. So, you know, that would be six weeks. But I don't think it'll be that quick. I mean, there's no reason for there to be such a rush. You know, if they want Susan Collins' vote, I don't think they're going to rush it that quickly. And I think Greg would be, you know, Greg knows the, you know, details of how this would all work. One question I have for, you know, an expert former, you know, Judiciary Council would be exactly, you know, can they, I assume they can pass out a committee, but would the final four votes, would they have to wait until, until Breyer actually steps down at the end of the term?

Or can they vote for him to confirm and say, upon Breyer's, you know, stepping down, Katanji Brown Jackson is confirmed? Yeah, so Breyer, so no, they could vote on him now or when the process is done and he could take his seat later. Breyer's, or she, I should say, Breyer's retirement letter said his retirement would be effective at the end of the term assuming a successor had been confirmed. So there's like this kind of, there's a two-step process. The Senate confirms, gives its advice and consent, but then the president still needs to install or appoint and that there can be delay. I'm not aware of there being a several-month delay between those two things in history. So it seems like a new thing.

It's kind of a curious decision for everyone involved. I mean, I'm assuming that Breyer maybe wanted this process to happen further away from the election, not in the aftermath of some big cases that are coming down at the end of this term. I mean, it's probably Breyer's decision to do it like this, I would think. but that's how it goes. Yeah, and I agree that I don't see any reason why it would move as quickly as Comey Barrett's process.

I think there's risks to mirroring that. The main way they shorten the Barrett process was not from the hearings to the vote. It was all the time before the hearings. Normally there's a big chuck of time during which the nominee can get prepared, can meet senators in these courtesy visits. And I think there's value to that time in getting the nominee kind of ready for prime time. It's a very intense process. Not everybody's good at it.

And there's value in having time to study up to learn about those obscure areas of law that you might be pressed on, like water rights, which you may not be familiar with if you're a judge on the East Coast. WOTUS! Right. Right. So I would think they'd give us some time and also to earn the votes of Susan Collins, which you don't need, but it's nice to have your nominee confirmed on a bipartisan basis. How much in a process that is not expedited, let's say the pre-Amy Coney-Barrant processes, how much time would be devoted to actual like prep, mock hearings? And how do those hearings work? Yeah, I mean, it's several weeks process. I should say pre-Colme and Barrett,

pre-World War II, confirmation hearings didn't happen, and Supreme Court nominees were confirmed the same day they were nominated often. So this kind of after the Second World War, the process got a little more and more complicated each passing year until we wound up with Bork, and then it roughly settled down into this about three-month process with four days of hearings, and it mostly follows a template that the Barrett one was was compressed. I, as the Senate staffer, was never involved in the prep sessions over at the

White House or at the OJ. They never trusted me enough for some reason to invite me in on those during the Bush years. So I will defer to Sarah on how that process goes. Well, let's first start with just how important they are. You know, everyone thinks like, okay, well, she's got 51 votes. This isn't that big a deal, but so did Harriet Myers. and Harriet Myers, for those who don't remember, was the White House counsel. She had been the first female partner at a law firm in the state of Texas. I mean, widely liked attorney and had been White House counsel for a number of years close to the president. He picks her for what's now the Alito seat.

But can I just do like a little cul-de-sac on how annoying it is that there was recent reporting that Alito is mad at Roberts because he thought he would get the chief seat? That's really weird. Like none of that timing works out. He wasn't even the first pick for the second seat after Roberts had already been made chief. But sorry, in the weeds, I know. So Harriet Myers, you start hearing rumblings during the time of the prep sessions. That things aren't quite what they should be, aren't going quite right.

But it's sort of phrased as, oh, but she's really busy being White House counsel and she's not spending enough time on the prep sessions. And then she goes to her Senate courtesy visits and disaster strikes. they're like, I mean, I'm exaggerating, but they're like, what's the First Amendment? And she goes, you know, is that the one about speedy trials? Uh-oh. And Alito ends up in that seat, so we kind of know how that goes. There are basically multi-layers of prep sessions. DOJ is kind of the lowest layer. This is like more law school 101.

Like I said WOTUS, right? Waters of the United States, they're going to sit there and be like, hey, do you want to do like a quick, you know, a 30-minute semester-long law school class on water riparian rights. And so they'll, like, go through all of those things, sort of the latest of what the Supreme Court's hearing. She's a D.C. Circuit judge, though. I expect that that will not be something she needs a lot of tutorials on. There's then going to be the larger White House prep process.

That's going to be usually in the Eisenhower Executive Office building, that's super ugly Victorian thing that's next to the White House. House, you know, big room, conference tables, pretty much like what you're picturing from the movies. That's where they're going to pepper the nominee with questions. And when the nominee, let's just say, the nominee may not give their most forthright answers in a large group where not everyone, everyone's trusted, but not everyone's trusted, if that makes sense. This is like the inner circle, but not the inner inner circle. And then the nominee is going to have their kind of inner circle. It will still have people from the White House in it.

I would expect the White House counsel to be in that inner circle. Anyone else who the nominee may know from sort of previous life. Don't forget, this nominee is related, well, this likely nominee is related to Paul Ryan by marriage. Like, she knows people in town, let's just say. And that inner circle is where you're going to test out your hardest answers, the answers, at least at first, on abortion, although maybe less so now, as the Supreme Court's considering that, you know, transgender participation in sports. I mean, the really sort of tricky, icky stuff, you're going to want to do that with your inner circle before you're sort of

doing it in front of the youngans. The Harriet Myers nomination, I would say, is a sort of a case study in what can happen when things go wrong when a president makes a gut decision, right? I mean, that was what, that was the ultimate gut decision from George W. Bush. You know, In the Harriet Myers confirmation process, there was a lot of work done by outside groups. And in this case, outside groups on the right that were very critical of the pick and didn't want Harriet Myers occupying a seat that they hoped conservatives would hold for years. And that opposition predated the problems that she had in her one-on-one meetings with the Senate. And I think in some ways contributed to those.

And then it all kind of blew up. John, you know, certainly before that, we had real participation and activities by ideological groups on the left and the right outside or sort of alongside these nomination fights. But those have really picked up over the past couple of decades and can dramatically shape perceptions, can create the media. in which a nominee is asked to answer these questions, is asked to meet with the senators. Obviously, that happened in a significant way in the Kavanaugh hearings. Do you expect, given that this is, this pick is not likely to change the ideological or intellectual composition of the court, do you expect those outside groups to be as active as they have been in the past? Or is this kind of a, everybody shrugs their shoulders and says,

eh, we think we know what's going to happen here? Yeah, I mean, I think people will, you know, they'll fight over the issues they care about. I mean, if the nominee has, uh, what can, we know, the second amendment folks would consider, you know, bad gun rulings. They'll focus on that. They'll put up the fight. But there's, you know, there's no real, I don't foresee a, you know, knock down, drag down fight, which in a way is sort of surprising. I mean, I think after Kavanaugh, a lot of people myself included, were saying, oh, this is the new normal of Supreme Court nominations. It's just going to be just gutter, you know, fights from here and out. And in fact, that didn't happen with Amy Coney-Baird. And in a way, it didn't happen

because there was an election coming up. And, you know, Biden wanted to focus on the crazy person he was running against rather than this really impressive, brilliant woman. And I think maybe the same thing could happen here, where, you know, Republicans are not going to want to, you know, pick a fight with some, you know, double Harvard degree, you know, brilliant woman, you know, and they'd rather focus on Biden and everything, inflation and, you know, everything else's wrong with the world. So I think, you know, the groups will put up their fights, but I wouldn't, you know, and again, we can always be surprised, but I don't expect it to be, you know, some of the sort of knocked down Greg out fight. Well, to what extent, to what extent do the ideological groups on the

outside have different incentives than the elected officials, right? I mean, if you're an elected Republican, you could make an argument that it would be a bad thing to have a huge fight. I mean, unless there was something obvious to fight over or there was some prospect of derailing whoever the nominee is, sort of what's the point? Why do this? Why just do it for show? On the other hand, these outside groups, you can raise a lot of money if you go after these judicial nominees, Supreme Court nominees, on your particular issues, and you can send letters. If this person is, in fact, confirmed, it will mean the end of X, or it will mean, you know, problems for Y and Z. Is that just less effective now because the court is, depending on how

you describe it six to three or three, three, three, three, or what have you, John? I mean, you know, they'll put their fight, but at the end of the day, you know, Mitch McConnell can't do a thing to stop it. And in a way, I think McConnell must be feeling a little bit lucky, because I don't know exactly what he would do in the situation if he did have 51 Republican votes. I mean, you're not a year out. You're not even two years out. You're three years out for presidential election. And while I, you know, to take off my completely objective reporter hat and put on my conservative hat, you know, I did think that it was the right call to hold the seat open for, you know, the scolia replacement. And to confirm. firm bear because in my view it's about the constitution there are two very different views of the constitution the senate should work gets well president appoints or nominates the senate confirms or rejects in whatever fashion it so chooses you know so in a way i think McConnell must be feeling a little lucky because he would have you would have all this pressure from these outside groups saying you know you can stop her this is why we gave you power and Mitch McConnell you know the whole you know think of the ted cruise defund obamacare fights you know where McConnell's in the situation where he's got

you know, Susan Collins and Lisa Murkowski, who really want to, you know, put this on. And furthermore, if, I'm sorry, I think it's something about how, like, how we think this is the outcome is so forwarding that I'm more intrigued by some hypothetical scenario, which Mitch McConnell is a Senate majority leader. But I really am. I'm curious just to think through what exactly he would do here. But I do think it is, it's also good for conservatives to not go through another one of these very weird, you know, blockades, just because it's, if the, if the energy on the left is to have, you know, pack the court, you know, let's get 13 justices, have a six to five majority of Democratic appointees. Just sort of having a normal confirmation fight is good. It's

Democrats now working through the normal processes. You know, hey, yeah, well, now we've got this new young, brilliant, well, African-American woman as a justice for the next three or four decades. And if we win more presidential elections in Senate races, we can, we can probably confirm some more. So I think it will take a bit of the wind out of the sales for progressives pushing for court packing, which you'll see a huge push for that still if Roe versus Wade goes in the summer. But I think that this will sort of, again, take the wind out of the sales a bit. Not long ago, I saw someone go through a sudden loss, and it was a stark reminder of how quickly life can change and why protecting the people you love is so important.

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and thousands of families already applying through Ethos, it builds trust. Protect your family with life insurance from Ethos. Get your free quote at ethos.com slash dispatch. That's E-T-H-O-S dot com slash dispatch. Application times may vary, rates may vary. Greg, on the other hand, if we've learned anything over the past decade of watching Congress, I would say watching the Senate in particular, you don't have to have any prospect of winning a fight to make a big to-do or have a big performance.

You know, an individual senator can create quite a reputation by, say, opposing Obamacare, shutting down the government to try to stop, just try to quote unquote stop Obamacare when it's pretty clear Obamacare was not going to be stopped because the numbers weren't there. Do you expect that we'll see some of the members of the Senate Judiciary Committee use this? I mean, it's hard to think of really a bigger stage, right? If you want to, if you want to become political famous, this is certainly a place to do it. And you have Lindsey Graham, no, no, somebody who doesn't run away from the cameras very often. You have Ted Cruz with, presumably with presidential ambitions, Josh Hawley, Tom Cotton, who may want to run for president. You've got a lot of potential Republican

presidential candidates on the Judiciary Committee. Do you expect that they will see this as an opportunity to make big arguments, to have a big fight? Yes. I mean, it's certainly an opportunity. The question is what kind of fight, what tone, what style, and we'll see. I mean, certainly the Democrats tried to interrupt the Kavanaugh hearing, even before there were the allegations against them. They tried all these little procedural games to just disrupt the process. I don't suspect we'll see that. I don't think there's a reason to see that. I think it does help that were not evenly divided on the court on some of the most pressing issues, as we had been in past vacancies. And I think that Republicans feel that they've got the stronger political hand

right now. And I don't know that they would want to distract from that by making this nasty. That said, it is a stage, and it's a stage for a few different kinds of things. I mean, one, it's an opportunity for Republicans to talk about the role of the courts. And I think Republicans have reason to believe that the public and history is on their side on that. I can talk about the importance of the courts and the role of the courts, the kind of judges and justices that they want to see that kind of thing. And there's actually, you know, there's a bit of a split on the right now with Holly speaking for kind of a more activist, standing in for a more activist stripe of conservative views on

what judges should do. So maybe he'll use the platform to talk about that. there's also always the chance to use these kinds of discussions to try to highlight other issues you want to talk about anyway. So during the Obama vacancies, certainly during the confirmation process, Republicans press nominees on the Commerce Clause. But what they really wanted to talk was about was Obamacare, which was not polling well. And it was a good opportunity to talk about Obamacare on a big stage. I mean, similarly here, it'll depend on the nominee, but if the nominee is a former public defender, maybe it'll be an opportunity for Republicans to talk about crime in

America today, which is certainly an issue that is of increasing importance and favors Republicans politically. So there's a whole range of political opportunities around this. I don't think it's in anybody's interest to, again, depending on how everything follows. But my default is that it's in anyone's real interest to be a complete skunk at the garden party here and try to blow things up. I agree on the Republican side. Republicans, I mean, McConnell has said with the Republican strategy for 2022 is make this a referendum on Biden's failures. So McConnell doesn't want anything to be about Republicans. He wants everyone to STFU. Democrats, on the other hand, want the exact opposite. So I think you could end up with, let me, you know, paint a scenario. A renegade House member says

something weird, race-tinged, awkward, all-and-out offensive. Democrats have every incentive to blow that up, make it an issue for their base, make every Republican senators say whether they agree or disagree with crazy congressman why. I think that's where this could become, where the politics of this could go, because Democrats will want to make this far more about the nominee, then Republicans will. Do you think, Sarah, you mentioned earlier some of the decisions we're expecting. Do you think the significance of those decisions will shape this process? And if so, how?

Yeah, I mean, for sure. So let's just go over. We have now abortion, gun rights. We're waiting to find out whether affirmative action will get argued in April or, in act in the fall. That in and of itself will make this, I think, a top issue for the confirmation hearing because we should find out, I guess, what, in like another couple weeks, whether it'll make the April sitting. But, you know, affirmative action with the first black woman nominee to the Supreme Court, yeah, this is going to be a huge issue. And again, if you're Democrats, it's a great

opportunity to try to get Republicans to say something stupid. Look at what Mitch McConnell just said last week about how black Americans vote at the same rate as real Americans. What? Blah. He's apologized since. Like, the more you can get Republicans talking about race, I would think that would be in the interest of the Democratic Party at this point. I wonder whether abortion, you know, generally speaking, abortion has been a better issue for the right than the left. However, we're starting to see those numbers shift a little. I don't love the issue polling. Steve, you know that, but part of what issue polling can tell you is if things move. So it is moving. I don't really care what the baseline numbers are, but Democrats are starting to do better on the

abortion issue than they were. They may see this as an opportunity to get those numbers to move further, see if they can turn their voters into reproductive rights top voters, as in the person votes based on that issue. You know, on the other hand, obviously, Terry McCall have tried that in Virginia and it didn't work. But just because I always love to say this, the losing team didn't do everything wrong and the winning team didn't do everything right. So just because that didn't work for Terry McAuliffe doesn't mean that it wasn't a good strategy. It just might not have been enough to put him over the top. John, another thing that has energized the progressive base in recent months and years

is discussion of the composition of the court itself, court packing, the possibility of making radical what I would consider to be rather radical changes to the court and how it functions. Do those arguments carry the same weight now that Joe Biden gets to make a pick that the balance of the court isn't really in question? Democrats have a majority in the Senate. Do you expect to hear much talk about court packing and those kinds of changes? I think they'll be very quiet about it, especially between now and the actual decision on Roe. So, you know, so far what the, I mean, you know, in the Senate, you've got Ed Markey, a senator from Minnesota. I think Elizabeth Warren is back.

That's three senators who have come out in favor of it. Plenty of them have said they won't support court packing under any circumstances. That's Mark Kelly's position, senator from Arizona. He's up in a tough race in the fall. You know, that's Joe Manchin's position. Kirstenna's never going to vote to hear of the filibuster. So, you know, court packing is something that it's, It's not an immediate threat, but it's, I guess, a long-term threat.

I think that, again, going through this process, you know, sort of the normal situation of president appoints, normal confirmation process, she's in there, that will sort of take out the, you know, the momentum on the left. You know, I mean, the progressus goal right now, it's basically their same approach as it was to the filibuster. We're not going to win now, but we're going to try and get 45 people on our side, you know, and we're going to get 48 people for changing the filibuster. you know, both so that the threat is greater.

And this is one situation where I think the threat of court packing is strong. You know, I forget the exact phrase is one of the threats greater than the execution. You know, you don't actually want to go through with this. If your whole idea is you want to take, take a, what I would call a, you know, judicially invented right to abortion found nowhere in the Constitution. And, you know, and you want to remove that question from, you know, both Congress and state legislatures. If you want to say, you can't touch this, well, then having the Supreme, having Congress just, you know, blow up the Supreme Court and make it an appendage of Congress, you know, you've basically, you've not only taken the abortion question and put it squarely under, you know, the power of the Congress, but you put every issue under the power of the Congress, and it's just going to swing back and forth for, you know, every time there's a trifect of the House and the House and one party of the other. I mean, that's what Angus King of Maine, fairly mainstream liberal.

somewhat moderate, I guess, on some issues you'd say, he says, you know, we're going to have a hundred people, you know, I don't know, where's the stop? You're going to be, you know, the Supreme Court's going to be meeting in Nat's Park, you know, with, you know, 50,000 justices eventually. So I, yeah, I think, I think this is probably good for, you know, in the short term and the long term, both to sort of, you know, take that pressure away or diminish that pressure for court packing. Do you agree with that, Greg? Yeah, I think that's right. I mean, it's still remarkable to me how many mainstream Democrats put their arms around this idea that was, I mean, it was literally kind of shorthand for presidential overreach in our history textbooks in high school. And it's alarming how quickly it became mainstream in one major party. I think it would be truly delegitimizing of the Supreme Court and a fundamental threat to our whole system. So yeah, I think it helps that.

You know, they get to fill a seat and have some process. And, but I do worry if we come back to that again at some point. Now that it's kind of gotten into the bloodstream on the left is an obvious thing to do. What's, you know, looking at kind of the history of these fights and Supreme Court confirmations over the last few decades, it tends to be, you know, a one-way ratchet. We don't back down from new norms and new procedural threats that often. Well, we've seen both political parties eager to blow up norms and do things that would have been unprecedented until recent years. Let me just close with a question about what's this like to go through this process personally for each of you. I mean, John, I'll start with you because I worked with you during the Kavanaugh hearings. And we were often exchanging emails at three in the morning. And then I'd have. an email from you at six in the morning, and you are on the phone constantly talking to

sort of anybody and everybody involved in the process, particularly, I would say, in that hearing because there was so much to sift through and to try to understand and to try to make clear for news consumers, what's the process like? I mean, do you have to, like, give yourself a pep talk to get excited to enter into something like this? And if so, does the fact that this one may not be quite as intense allow you to kick back and put your heels up and have a high life, the champagne of beers? I mean, you can do both. You know, you can do both. I mean, I covered the Kavanaugh, I covered the Kavanaugh's first round of hearings, and I believe the headline in the

weekly standard was something to the effect of the Kavanaugh hearings are just very stupid performance out. Or maybe that was the web version of it. It was just everybody, you know, and so you still want to tell the story, you know, especially when there are, you know, there's some argument about something that I have, you know, I've reported on the past, you know, I think, you know, there'll be on various issues, whether it's, you know, the Religious Freedom Restoration Act or it's, you know, something involving abortion or, you know, so there'll be plenty of stories to cover normal stories. But yeah, I mean, the Kavanaugh, the round two of Christine Blasey Ford and it was sort of, you know, just one bomb after another. And this drama of not knowing

what's actually going to happen and so many conflicting claims and trying to get to the bottom of it. And so I highly doubt that there's going to be any sort of dramatic, you know, allegations of personal corruption, you know, especially, I mean, I'll just be honest. I mean, especially if it's going to be a woman. I mean, come on. I mean, only men are capable of corruption. So it's like, I mean, Sarah, when you went through this at DOJ, I mean, you know, in what would seem like a strange phenomenon, I think. on the one hand, this is, you know, this is the big story when a confirmation battle is taking place. It gets outsized media attention. It has lasting meaning. But for you, it would be like a sliver of your job. You have lots of other things to do. How did you balance that? Yeah. Did you like it? I mean, did you enjoy the, I mean, you're sort of a Supreme Court junkie. So I imagine that

was one of the more enjoyable parts of your job. But what did what did your day look like as these things were unfolding? Well, so unfortunately, I guess at least in some respects, because I was sort of a division head at the Department of Justice, you know, I sent over one of my press secretaries to go get to do the day-to-day part of this, which was like painful for me, because obviously I would have loved to have been in the day-to-day. So to exactly your point, I didn't get to do the day-to-day part of this. I found the Kavanaugh hearings. You know, I was watching them along with everyone else for the most part.

You know, we were both involved and not involved, right? Like, once that second hearing got underway, DOJ's role was largely done from a vetting standpoint and all of that, you know, the Office of Legal Policy and our Assistant Attorney General for that, like, had largely done most of the heavy lifting. But then you had the FBI investigation. part come up at the end. And that ended up, you know, taking up a lot of mental bandwidth. But, you know, it was excruciating to watch as I think it was for everyone else in D.C. And it was, Greg, I even think I might have talked to you about this. It was sort of the first time in the,

you know, 20 or so years I've lived on and off in this town that I felt like even friends, no matter what side of the political spectrum or anything else they were on, it was just too difficult to have conversations with anyone because it was the only thing people wanted to talk about and everyone felt so, so strongly because they were bringing their own experiences to the situation and everyone's experiences came from all over the map.

I imagine it was sort of like that across the country, but I found it very isolating feeling myself. Yeah, Greg, as you worked on these, I mean, how much are you aware? I mean, you're there doing your job all day every day, putting in 18-hour days sort of non-stop. And that's the day-to-day reality. On the other hand, like, how often were you able to stop and say,

this is sort of amazing? I'm playing this, like, pretty significant role in the history of the country, in sort of ensuring the continuation of one of its great institutions. Like, did you stop and think that or have a moment where you're sitting in on a meeting with profound implications? that you could kind of step beyond yourself and see that? Or not really? Or is it just total chaos and you're done and that's it?

For me, I always had those moments, you know, to think that if I were alone in a room with a senator and a Supreme Court nominee and one of those courtesy visits, you know, that was certainly a moment that I can't believe I'm here, you know, growing up, interested in politics, going to law school and then being interested in the Supreme Court, being involved in the Federal Society of Law School and whatnot. I mean, this is, how did I get here? Those moments were amazing. You know, when the cameras first come on in the hearing room or, you know, when it was my party in the White House going to a party at the White House to celebrate a confirmation, I mean, there were these moments that were kind of, I would pinch myself.

And they were pretty fantastic. So, and that's, it's, I hope most congressional staffers have those moments in their jobs, even as ugly as things have become. I never wanted to lose that, and I think I always had that appreciation. What the jobs like day to day, too, for me, you know, it was very different, depending on who was in the White House. I mean, I wanted to see Republican nominees confirmed. I got to know some of the nominees personally. I would be invested sort of in their reputation and in their career success. I was less motivated by playing the opposition and trying to, you know, it kind of depended

what the attack of the day was. There are attacks on Democratic nominees that I thought were cheap, but if we were actually, you know, pressing them on the role of the court, that seemed responsible and the right thing to do. So is a mix. The personal stuff, the background investigations that goes on for all judicial nominees, I can't ever talk about it in detail, but I like to tell people about it generally, because despite the complete breakdown that was the Kavanaugh nomination, the background investigation

for nominees at every level of the judiciary typically goes really well, really professionally, really bipartisan. It's work that I'm, I was proud of. I mean, we handled quietly difficult allegations against nominees. And some folks did not move forward. Some folks did, and it never became a political issue. And that usually works. I would also say that's not fun. It's not fun to ask a nominee about something that's come up in his or her record or about their finances or about their marriage. But that's a big part of this that should be behind closed doors. And now, in fact, in the Supreme Court confirmation hearings, the committee goes into closed session to discuss the background file routinely, even if there's nothing to talk about, just so there's not news created by going into closed session. So you may go into closed session and just kind of have the benominy and the senators talk about their kids and grandkids for half an hour.

But it's an important part of the process, I think. So let's end this way with the caveat. out that none of us have had much of an opportunity to do real reporting or to ask our inside sources what's likely to happen. Please join me in speculating about what's likely to happen. Sarah, who is the nominee and what is the vote? Kintaji Brown Jackson is further ahead at this point than Amy Coney-Barritt was in terms of how short the short list is. Amy Coney Barrett sort of had a wolf-a-par,

another circuit judge as a stalking horse. I thought she was always the leading contender, but I could see it going the other way. You know, Leandro Kruger from the California Supreme Court is incredibly well-qualified, also well-liked, but there's just so much going for Kintaghi Brown-Jackson. I don't see anyone but her being the nominee

unless there is some sort of deal-breaker. but she just got confirmed six months ago, so I don't think there is. What do I think the vote will be over 52? You got to give me a real number. I mean, that's just totally wimping out. Okay, I think 56 then. 56. John, is it going to be KBJ and is she right about the breakdown?

I think yes, and I think just having, you know, the very basic cursory reading of the, you know, public record on everybody. Just my gut reaction is that, you know, no matter how impressive I've read some people say Leandro Kruger is, you know, more, more, more, a more brilliant legal thinker. But my gut reaction is just, you know, I don't know what the California Supreme Court's been up to and the fact that that Democratic staffers don't know what the California Supreme Court's been up to and that it's California. I think that that, you know, you're just dealing with a much more known quantity of a, you know, the second most important court in the land in the, you know, D.C. Court of Appeals.

So, yes, I will, I will also predict KBJ and I'll go with, I don't know, so I'm trying to figure out now. So if she only got 53 votes on the appeals court, I can't see people who, I guess, what would be the rationale? No, I'll go with, I'll go with 53 again. I'll just say she's going to get everybody she got last time. I'm trying to think about, I don't know, I'd be curious for the argument from why she could end up with like 70. Like, could people who voted against her the first time? More. Just like, have a change of heart.

I don't know. I think there is an argument, like, I, maybe, this is obviously my personal bias. The president gets his pick on the U.S. Supreme Court. And if that person is not qualified or if they have something that makes you question their judgment or biases, is fine. but that otherwise you should vote to confirm that person. And I would like us to move back to that. And so I think there are at least a couple senators who share that, even if it wasn't their pick for the D.C. Circuit, but I agree.

It's a hard case to make. Greg, where do you end up? Yeah, I think I probably agree on the likeliest choice, though I may put Kruger's odds slightly higher than Sarah does. I mean, I think she does have that reputation. that John says about being particularly brilliant. She's, I think, four or five years younger and each year is helpful when you're looking for a legacy.

I have a bit of a bias that, you know, I think we have too many D.C. circuit judges on the Supreme Court, and I don't even know the last time a state Supreme Court judge was justice was chosen for the Supreme Court. I think it would be that alone, a good thing, maybe. Yeah, was she? I thought she was Arizona Supreme Court. Caleb, we're going to cut this if I'm wrong.

She was certainly in the state legislature. Wait, so her and Rehnquist meet back in Arizona. This is like the whole drama. Well, and for numbers, yeah, I think it's about 53. I mean, I think she probably can get either one of them could get probably all of those folks again. I think it's hard to see. I mean, Collins is one of the few senators who's actually articulated a very clear kind of test for who she votes for, which is, and has fairly consistently applied it.

You know, maybe Graham's a bit more of a wild card now that he's kind of at the forefront of some partisan clashes. I mean, the irony is he's been consistent. He's been pretty consistent on the question of nominees, whether judicial or otherwise. He's been pretty consistent on that. Nobody would argue that he's been consistent on anything else, however. Right. Yeah.

So, I mean, I think she probably holds, I think either of them could get those. I think one of the cases for Jackson is that she has those three senators. I think there's a good odds that Kruger gets those three senators, too, even without the recent history of a confirmation vote. Okay, well, just for those listening along who didn't want to Google it or who are driving, I'm going to give myself half credit. Sandra Day O'Connor was actually a judge on the Arizona Court of Appeals. I mean, you got the state right.

I got the state right. I mean, that's, I'd give you 25%. I'd give you 25%. We'll send this to Alec Dent for judgment. We'll send this to Alec Dent for a fact check. Thank you all. Thank you all for doing this. I will turn the hosting chair back to the professional next week.

But this was great for me. I learned a lot. I hope our listeners learned a lot. And I appreciate you all taking the time to get this around. I think it's going to be an interesting few weeks or a few months. With Amex Platinum, access to exclusive Amex presale tickets can score you a spot trackside. So being a fan for life turns into the trip of a lifetime. That's the powerful backing of Amex.

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