Today, Explained - The New Justice

Episode Date: July 10, 2018

Brett Kavanaugh is President Trump’s pick to replace Anthony Kennedy on the United States Supreme Court. The New York Times Magazine’s Emily Bazelon says the nomination was decades in the making. Learn more about your ad choices. Visit podcastchoices.com/adchoices

Hello. Bree. Hey, Sean. Were you sleeping because you have mono? Yes, I was. I'm really sorry I woke you up then because all I wanted to say is Uber is moving forward, listening to feedback so they can improve and get better every trip. They're building new features to take the stress out of your pickup

and working on ways to keep you better protected and connected throughout your ride. And you can find out more by going to uber.com slash moving forward. Well, I think I'm going to go ahead and move on forward too and get out of bed. Emily Bazelon, you write about the law for the New York Times Magazine. The president has announced his nominee to the Supreme Court. It is my honor and privilege to announce that I will nominate Judge Brett Kavanaugh to the United States Supreme Court. It's the second time in as many years he's had the opportunity to change the makeup of the court. How significant is this second choice?

It is a hugely significant choice. Mostly what matters a great deal is that a Republican president sees the court as a way of paying back his base, of showing his loyalty to the people who elected him, and really providing a fifth vote for a conservative, reliable, hard right majority. If you really like Donald Trump, that's great. But if you don't, you have to vote for me anyway. You know why? Supreme Court judges. Supreme Court judges. You know, this is a majority that has eluded Republicans since the Reagan administration, and now they're getting it. Who's Brett Kavanaugh? Where did he come from?

Brett Kavanaugh is a judge on the D.C. Circuit. He previously worked in the Bush administration. Before that, he was one of the authors of the Starr Report. That takes us back to Kenneth Starr's investigation of Bill Clinton. He testified that he could not recall being alone with Ms. Lewinsky. That was untrue. He testified that he could not recall ever being in the Oval Office hallway with Ms. Lewinsky, except perhaps when she was delivering pizza. That was untrue. You know, Kavanaugh wrote the Star Report, which was like really invasive into another president's, you know, privacy. So you could have imagined Trump being concerned about all of those things. And then in 2009, Kavanaugh writes an article saying that he regrets the way the Starr investigation

unfolded and that he thinks that it's wrong to talk about criminally indicting the president, that that's too big a distraction. That would be very reassuring to a president who is under a serious investigation. It's funny, you know, you talk about him being involved in these Clinton investigations and in the Bush administration. I learned this term of art last week in a conversation about Scott Pruitt. He sounds sort of swampy, like a creature of Washington. And that historically has been something that the president has had an aversion to. Is he sort of backpedaling there on draining the swamp? Well, how much is Trump's aversion to the swamp real and how much is it rhetorical, right? I mean, there are many instances of Trump claiming that he doesn't like the swamp and then

seeming to bathe in it. You know, yes, Kavanaugh is a creature of Washington, and he also has the double Yale resume that Trump said he wanted, but that is at odds with any kind of populist shift. I believe if appointed to the Supreme Court, all nine justices, including Brett Kavanaugh, would have either gone to Harvard or Yale. Is there something sort of sad about the lack of diversity in education on the Supreme Court? Or is that exactly what sitting presidents want? Well, it seems to be both of those things are true at once. I'm in a sort of hypocritical position to say this given that I teach at Yale. But it is very narrow to have everybody come from the same minted Ivy League pedigree. There's just something limiting about that in terms of the range of experiences people are bringing, at least educationally, to this job. And that is not a

good thing. That being said, I'm sure some of his opinions might differ from, say, Sonia Sotomayor, who also went to Yale Law. What do we know about Kavanaugh's prior decisions? Judge Kavanaugh has a long record on the D.C. circuit. He was actually first nominated by George W. Bush in 2003. But his nomination stalled in the Senate for almost three years because there was Democratic opposition, people seeing him as overly partisan. In part, I think, because he had been part of the Starr investigation. Many of my colleagues and I have a sincere and good faith concern about this nominee. The nominee is not seasoned enough, not independent enough, and hasn't been forthcoming enough.

So he gets confirmed in 2006, and that means, you know, he has 12 years on the court. And the D.C. Circuit, you know, is the appellate court in the country that deals with a lot of challenges to the actions of federal agencies. So I think you see him skeptical of, you know, the kind of broad regulation that has allowed the federal government to try to limit greenhouse gas emissions. And one of the issues that's starting to come up is this question of overturning an important doctrine called Chevron and Chevron deference. Effectively, much of the time, courts defer to the expertise of the agencies. So Congress passed the law, but they don't say exactly how the agency is supposed to rule on every detail that the law affects. And courts kind of put a thumb on the scale for the agencies and their expertise. There is a movement to reverse all of

that that Gorsuch is part of. And I think we can see Kavanaugh being an ally for Gorsuch in that. What about stuff that's, you know, not as much related to federal agencies? What about abortion or gay rights or affirmative action? Do we have any idea how he might decide cases on those issues? We have some inklings. So earlier this year, there have been a couple of cases in which teenagers who are undocumented immigrants in immigration custody have tried to get abortions.

And those issues went up to the D.C. Circuit because the Office of Refugee Resettlement was refusing to facilitate getting those girls to an abortion provider. The D.C. Circuit as a whole said that these young women had the right to have an abortion. Kavanaugh dissented. He said the majority's ruling was ultimately based on a constitutional principle as novel as it is wrong, a new right for unlawful immigrant minors in U.S. government detention to obtain immediate abortion on demand. And so what you hear that there is a, you know, skepticism about the

constitutional right to abortion and also a kind of exaggerating of what is going on here. You know, you have a girl saying, I want to terminate this pregnancy. You have the government standing in that girl's way. That's hardly, you know, a new right to immediate abortion on demand. What's next for Kavanaugh? He's shaking a bunch of hands on Capitol Hill today. Is that the deal? Yes. He will be doing lots of meeting and greeting. Republican senators will be excited to take pictures with him. And Democrats are going to be trying to figure out how to mount some kind of effective opposition and to point out the ways in which Kavanaugh is going to pull the court away from some of the mainstream positions of the country. And so we're going to have a kind of kabuki theater of the next couple of months of

Kavanaugh trying to seem as pleasant and affable as possible and give away as little as he can about his record. And Democrats trying to nail him, both for the things he's already said and written and for what he's likely to do. Do we think he'll be on the court by the time they start looking at cases again in October? You never know with Supreme Court nominations. They have fallen apart before for various reasons. But I'm sure the schedule is to try to get him seated, if not by October,

what's called First Monday, certainly before the midterms. But to be sure, if all the Republicans in the Senate vote to approve Kavanaugh, he's on, right? That's right. And that means, you know, there are a couple of so-called swing votes in play here. Susan Collins, the senator from Maine, Lisa Murkowski, the senator from Alaska. These are pro-choice women. Kavanaugh's record clearly suggests that, you know, he would gut the right to an abortion, make it much harder for women to access it, if not overturn Roe outright. I think both of those possibilities are on the table.

So it's going to be tricky for Collins and Murkowski to find their way to supporting him despite all of that. But there's going to be a lot of pressure on them to do that. How about for Democrats? I mean, if they put up a big fight here, might it help them in the midterms? Well, I mean, I think it will help the Democrats from blue states. I mean, the progressive Democratic base is going to be pushing hard for the party to try to do everything it can to obstruct this nomination. But as you know, there are a number of Democratic senators who are up for reelection in red states. And for those folks, this is a really tricky vote.

Democrats have won the popular vote in six out of the last seven elections. The majority of voting Americans are saying they identify with the left. But the Supreme Court is now clearly heading to the right. So should the court be a check on the people or should it reflect the will of the people? That's next on Today Explained. So is sleeping a big part of recovering from mono? So there's no cure. You just have to get some sleep and rest and eat healthy and hope that your immune system takes care of itself.

After we get off the phone, you're going to go back to sleeping. No, Sean, I'm going to move forward, okay? You're going to move forward just like Uber. Just like Uber. Did you know that with service in more than 600 cities around the world, Uber is increasing their efforts in community service and partnering with organizations that make a difference? That's super accessible.

You know what else is super accessible? Uber.com slash moving forward. Gorsuch replacing Scalia didn't seem to suggest a major ideological shift on the Supreme Court. It suggested really almost zero shift. It was like a one for one. Exactly. But how about Kavanaugh replacing Kennedy? This is a much, much bigger deal. And look, I don't want to overstate Justice Kennedy's centrism.

He was not a moderate. He was a mostly very conservative justice. However, there were these sort of key social issues where Kennedy was, for the left, a real bulwark against the rest of the conservative court. And there is no reason to think that Kavanaugh would play that kind of role. None at all. And just to be clear, the Supreme Court is already pretty conservative, right? We just had a bunch of rulings that came down, the Janus case, the travel ban. I mean, the Supreme Court wasn't especially liberal or even moderate on those issues.

Oh, absolutely. I mean, in this particular term, Kennedy did not a single time provide the fifth vote with the liberals for opposing and defeating the conservatives. It was a very conservative term. So it's both important not to overstate the degree to which Kennedy was like a moderating influence, but also when all five people are deeply conservative, we don't really know what that looks like. We haven't had a court like that really since what's called the Lochner era. That was the Supreme Court that used freedom of contract to strike down a lot of state laws that protected workers and then struck down a lot of New Deal era FDR legislation. We're looking at a court that seems to be composed the way the Lochner era court was at a moment where in some ways the country is becoming more progressive

or at least younger people have more progressive views. So it's going to be kind of a wild ride to see how these two things do or don't match up. Gorsuch and now Kavanaugh potentially will be on the Supreme Court for another 30 years or so, at least. That's totally possible. Yes. So what does that mean if the Supreme Court is heading in one direction and the country is heading in another? Is the Supreme Court supposed to represent the country? As you can imagine, different constitutional law professors, legal historians, political scientists, they have different theories about this. Famously, the political scientist Robert Dahl in 1957 wrote an essay where he said, look, the court is going to always, in the end, line up with the kind of dominant national

political stance. A lot of people since then have criticized that theory and argued that it no longer holds. And there have been moments in the past where that theory didn't play out. I mean, I was just telling you about the Lochner era. That ended in 1937 when FDR tried to pack the court in order to prevent it from obstructing the New Deal. What is my proposal? It is simply this. Whenever a judge or justice of any federal court has reached the age of 70 and does not avail himself of the opportunity to retire on a pension, a new member shall be appointed by the president then in office with the approval as required by the Constitution of the Senate of the United States. This plan will save our national constitution from hardening of the judicial artery.

And the court packing scheme failed, but in part that was because one justice switched his vote. And so that allowed the court to accede to the New Deal. And then people started retiring from the court and FDR got to replace them. Back in the Reconstruction era, there were efforts to stop the court because it was getting in the way of the Reconstructionist Republican agenda. There have been other moments too. And so honestly, we don't really know how this will play out exactly because it's not going to precisely replicate what we've seen before. You know, imagine a world in which this is a very conservative court and it doesn't match up with the country. Elections can fix that, sort of, but not if you just think of the mechanisms we have now and nobody retires from the right, then you still

have these five people. And so that's when various tricks come into play to try to limit the court's power. And that hasn't happened since FDR, right? No one's really proposed in any sort of serious way adding more justices. Is that something that at this point feels way beyond the pale? Well, first of all, it turns out there's a federal statute that has the number at nine right now. So both houses of Congress and the president would have to repeal that statute. But in the 50s, for example, the court took a couple of cases about the communists and came out in ways that public opinion was really against them. And there was a proposed bill in Congress to try to strip jurisdiction. And it was actually LBJ as the Senate majority leader who prevented that from passing. So there can be these moments of crisis or at least a boiling point where the court becomes the object of public indignation.

And each time we've gotten past the problem. But the court's ruling in the Dred Scott case in the 1850s helped provoke the Civil War. So there are be interesting to see if the court is out of step and moves to the right and is to the right of the country, whether the left starts to get how much the court matters. The other thing, though, and this is sort of contradictory, but bear with me for a second. The court is supreme when Congress doesn't stick up for itself, right? Like if the legislative branch is doing things like updating the Clean Air Act so that it does cover carbon dioxide emissions, then these questions of, you know, the court deferring to some agency rulemaking that could be a stretch from the text of the statute,

they don't arise in the same way. So it is also up to the other branches of government to do their jobs. Emily Bazelon hosts the Political Gabfest podcast. I'm Sean Ramos from this is the hundredth episode of our podcast of Today Explained. Oh, yay. Oh, yay. Oh, yay. Thank you so much for listening. Tell your friends, rate and review us on Apple Podcasts or Stitcher, or wherever you get your podcasts. Thanks. Uber's moving forward.

Listen to feedback so they can improve and get better with every trip. They're building new features to take the stress out of your pickup and working on ways to keep you better protected and connected throughout your ride. You can find out more by going to uber.com slash moving forward.