GOV310 – In The News: A look at national politics through the eyes of Texas, February 17, 2016

[0:00:00 Speaker 1] in

[0:00:00 Speaker 0] the news in the News for American in Texas government. I’m Eric McDaniel

[0:00:09 Speaker 2] and I’m Jim Henson.

[0:00:10 Speaker 0] So this week we’re going to spend a lot of time talking about what’s really dominated the news cycle. That’s the death of Justice Anthony Scalia. And I think it’s important to talk about is that person who he waas but also what his death means? Because this has really changed the dynamics of seeing going on in Washington as well as the campaign trail Now Just Scalia was, uh, was really belong ist servant justice. He was over more than 30 years on the court. He was appointed during the Reagan administration, and he’s really held us being a Z, the kind of quintessential conservative judge, and basically really changed in the way in which court cases or fought with this emphasis on original intent in the actual written word within, on on documents and because he was really much of a revolutionary and he changed the way in which case were debated and when the way opinions written within the court. So he has a long lasting effect on the court and our understanding of the Supreme Court eso Jim What is your take on on just school?

[0:01:09 Speaker 2] Well, I think the interesting thing to me, aside from the fact of his career, which you know, was interesting to the extent that he was really the conservative anchor on the court for so long, Um, he never really led the court because he had

[0:01:24 Speaker 3] a hard

[0:01:24 Speaker 2] time leading majorities he could not. Part of the politics of the court is your ability as a justice to build coalitions with the other justices. He never really did that very effectively. So his most notable in scathing opinions, frankly, were in dissent. So when the court, when the justices right, a decision, the majority has a decision, there could be concurring opinions with the majority. But minority justices that have been that don’t agree with the majority opinion can also make an addendum essentially to the to the opinions and express their opinions. Scalia was well known for creatively and very flamboyantly voicing his dissent in those decisions, and that was a really interesting factor. I think the other thing it’s really been notable is anybody that’s been in front of a television or anything even resembling a new site is that this story has has percolated into politics at all levels. It’s raised all kinds of institutional questions and also, of course, become a central issue in the presidential campaign.

[0:02:28 Speaker 0] Yes, and this has really become important because now we’re seeing various issues going on with the court. We’re seeing the institution become come into question. So one, the first things people talked about the fact that the court is currently in session and decisions have yet to be made on a lot of a lot of cases. What happens now? Specifically, the fear of the 44 vote now one of things where people are concerned about is there might be a lot of 54 votes specifically dealing with obamacare, affirmative action, some abortion issues as well as the executive orders that now we live with a 44 decision. It’s important, Understand is that less than 20% of the case less than one in five cases in five for the vast majority of cases are are basically, you know, if a 907 to basically overwhelming support, and what the’s small set of cases, which usually the most controversial cases which into being 54 and may turn into 44 and we’re concerned about the ramifications of that. Some of these cases may have to be re argued in front of the justices because no decision can be made. Others will just let the lower court’s decision stand. Always that becomes problematic is because the various jurisdictions that she may have S o, for instance, in terms of contraception, you may have some district courts where the groups are forced to give contraceptives. Others are not just because you have different decisions coming down from the different circuit circuit judges.

[0:03:53 Speaker 2] Yeah, I mean, I think there’s an interesting array of issues there that have made this very political. So, as you mentioned, there’s Theis issue of whether insurance plans have to cover contraception under the Affordable Care Act or obamacare. Other big cases, some of which you’re from Texas, have to do with affirmative action. The Fisher case at UT Austin has been going on for some time, was before the court once had to be re argued, eso that that will be affected by this, this dynamic almost certainly there’s also an immigration matter pending that has to do with President Obama’s executive action on immigration. Several cases of redistricting case also out of Texas. So several cases that are very important and have lots of political ramifications. And so one of the things that we saw really, within hours of hearing that the Supreme Court justice had died, this became political. So President Obama came out immediately afterwards and gave

[0:04:56 Speaker 0] what you would

[0:04:57 Speaker 2] expect was a somber, respectful, nonpartisan tribute to Justice Scalia with some warm words for his family. But he also sent a clear political signal, which we have in a clip.

[0:05:09 Speaker 3] Obviously, today is a time to remember Justice Scalia’s legacy. I plan to fulfill my constitutional responsibilities to nominate a successor in due time. There will be plenty of time for me to do so and for the Senate to fulfill its responsibility to give that person a fair hearing and a timely vote. These responsibilities that I take seriously, as should everyone they’re bigger than any one party. They are about our democracy. They’re about the institution to which Justice Scalia dedicated his professional life and making sure it continues to function as the beacon of beacon of justice that our founders envisioned.

[0:05:53 Speaker 2] Okay, so the president framed the politics of that very succinctly. Aziz. We set this up. It’s really gonna. Much of the political discussion and debate has been. Will President Obama nominated successor at, and will the Senate actually give them a hearing? This really entails lots of, ah political dispute that’s been going on for quite a while, and it didn’t take the Senate very long to send their message. Mitch McConnell did it model in a modern way. Mitch McConnell, the Senate majority leader via Facebook. And it’s part of, Ah Facebook message that spoke directly to President Obama. He the Facebook message said the American people should have a voice in the selection of their next Supreme Court justice. Therefore, the vacancy should not be filled until we have a new president. This sets up the big fire, right?

[0:06:46 Speaker 0] Yeah. I mean, what they bring in a player of the Thurman world? Strong Thurman Row Strom Thurman Again? This is informal strong. Pirmin argue that the president should not be allowed to make lifetime appointments. Uh, with less than six months left in his tenure, well, the Thurman rule has been brought up several times. The Democrats brought it up when I say 2004 and dealing with federal judges and Republicans clearly pushed back against that. But now you’re seeing Republicans evoking that again. President Obama has about sin and 1/2 months left, and so that’s clearly Mawr than more than six months. And he’s argued. Look, the Constitution said, This is what I’m supposed to do. So this is what I’m going to dio. But it’s extremely important that who sits on the court plays a very important role in terms off the policy direction the nation will take.

[0:07:36 Speaker 2] And given the fact that Supreme Court justices have lifetime terms, this is one of the unique things that presidents really have as a sole power. I mean, they do it with the advising consent of the Senate, but it’s really one of those areas, or presidential initiative is really unchallenged. On one hand, this looks like both of both sides. Those defenders of the president and of the Republicans in the Senate are making constitutional arguments that are are, in a sense tilted their way and try to give them the high moral ground. I mean, a

[0:08:08 Speaker 0] lot of

[0:08:08 Speaker 2] ways I think about this. This is the way it’s supposed to unfold, they’re supposed to fight. But I do think the extreme version on the Senate is harder to justify that. You know that that the president simply should not fulfill his duty, that he should somehow defer to an election coming up. Lots of discussions and all the newspapers and media of the number of times that in this window, in fact, appointments have been made that gotten a hearing. In some cases, the nominee has been turned down. But the Senate did have the hearings, and so I think that’s really gonna that’s going to continue to play out, and it’s going to continue toe shaped. Both the politics of this and who gets selected

[0:08:47 Speaker 0] is this is extremely important thing about his fight over judges has been going on for the early stages of the nation. If you think of Marbury v. Madison, that was over judges, so it’s been going on basis the early early days of the nation. So this fight over judges is nothing new, and something will continue because of the importance of the judiciary.

[0:09:08 Speaker 2] Now, one of the talk one of the dynamics of this has been then what will the nominee look like, you know, will the president choose somebody that’s highly liberal and really pick a fight with Senate, or will they try to angle in in a way with somebody That’s harder for the Senate to dismiss out of hand. We’ve got a a short clip from Fox News, I guess, discussing what those nominees might look like.

[0:09:33 Speaker 4] Is there a short list I guess, might be another way in looking at that, right? The technical answer is no. Because you heard the president say himself, Heather, listen, I’m going to take my time and be very considerable in my deliberation about this process, however, make no mistake about it. They have some names they’d like to consider. After all, he’s already successfully nominated two people to the high court. Justices Sotomayor and Kegan couldn’t take a look at some of the names you’re likely to hear over the next several days, if not months. As this process continues to play out one name, I want everybody to remember. This is an important one. This is, Ah, Judge Patricia Millett. She’s from the Court of Appeals in the District of Columbia. She’s considered to be centrist and has an impeccable legal background. Another big name, probably the one you’re going to hear the most. Its treatment of Austin. This is the odds on favorite. I would imagine a someone that will very likely rise to the level of someone that could earn a nomination by this White House again. Also for the Court of Appeals for the District, he clerked under several conservative judges, and so that might obviously help him in that process. One more name and this may be a little counterintuitive. How about the attorney general, Loretta Lynch? She’s already survived a bruising process, as you know, to become the attorney general. That would seem to make her fairly well prepared to go through this nomination process if the White House decides to raise her up to that particular position. One more name I want to just share with you quickly is Judge Jane Kelly. You may not have heard of her. She’s actually from the Hawkeye State of Iowa for the eighth Circuit, a brilliant jurist, and it might make it a little difficult for Chuck Grassley on the Senate Judiciary Committee, who is also an Iowan, to a sort of stall that nomination, Heather.

[0:11:07 Speaker 0] All right. So as you can see the discussion of the potential, Canada’s much like American Idol or the NFL draft. There’s talent out there. And who will be the number one pick in this case now moving on from the discussion of who will be the next Supreme Court justice. One of things that’s really important is you’re seeing a high level of critique of the court in the court, and the court has been questioned quite a bit. And one, the main individual see question. The court has been presidential candidate Senator Ted Cruz. So we run this real quick clip of his statements regarding the court over recent decisions.

[0:11:39 Speaker 5] If any of us believes in democracy, if any of us believes in the Constitution and rule of law, then whether we agree or disagree with the policy outcomes in these particular decisions, we should be horrified at the notion that five unelected judges concedes for themselves the policy making authority and take it from the American people. We did not establish philosopher kings in this country. We did not establish a rule by unelected elites to seize decision making authority from the American people. Indeed, that is the very definition of tyranny.

[0:12:32 Speaker 2] So you horrified tyranny. Unelected elites. Mother, Would Ted Cruz go to school? Was that Yale? I’m just I’m just checking about the elite thing. I don’t know.

[0:12:41 Speaker 0] Well, eyes saying he could, he could, probably since he’s establish that he knows Spanish. If this thing doesn’t work out, it could be in a telenovela. I mean, he’s got drama down

[0:12:50 Speaker 2] Good. There are There are serious issues at play here that you know what wherever cruises coming down on them. There are these issues about what? The court, what role the court plays in the political system that are also coming up in this. And we see a real political sort of turn toe where p how people interpret this, which is pretty clear. And Cruz. I think it’s pretty clear where it stays.

[0:13:11 Speaker 0] Yeah, I think one of problems that people having is they assume the court is not a policymaker, and no, the court is a policymaker. By saying what policies can be acceptable? Policy cannot. You are making policy. But also the quarters always been controversial. Since I’m a scholar black politics. I could give you a several several examples of that. S o really not a pit. Over the 19 forties, the court had been seen since its inception is being anti anti black rights. Eso if you think of the fact that slaveholders were on the court and basically supported the noses of slavery through the dread Sky case, which argued that blacks did not cannot sue because they were not connected, considered citizens of the US If you think of the court decisions after the 14th Amendment, which basically led to the substation of African Americans in the South capping off of the Plessy decision, then you see more than you see kind of the four days in the fifties with the combination being the Brown decision. You see all the court actually being a favorite black of black interest. But you do see some walk back in the eighties on so which seeing is the court is always gonna be controversial. It’s never going to agree with everything you like, and, I think was send the cruises. Senator Cruz is upset about over obamacare and gay marriage, but he may have been happy with, you know, citizens united. He may have also been happy with some of the other decisions, such as controlling the E p. A in terms of its activities in Texas. And so this idea philosopher, kings, people of tyranny making policy. That’s what the court does. And to assume that the court is not part of policy process is problematic because the fact that able to say what is what is acceptable policy, what is not acceptable policy is making policy.

[0:14:52 Speaker 2] Yeah, I think that’s right. And I think that the way that we’ve seen the court emerges, a political issue is really clear. So, for example, Ted Cruz isn’t the only one that’s been really upset about the gay marriage in a C A decision. So if we look at public opinion polling in Texas, going back to 2000 and two in the UT Texas Tribune Poll, we asked Texans Ah, what what branch of government they trusted the most looked at that by party and by far the in October of 2012. The leading branch among Republicans was the Supreme Court, headed by John Roberts with a conservative block. 45% of Republicans at that point said that the Supreme Court was the branch they trusted the most. Obviously opposition to Obama meant that only 2% said they trusted the executive branch and 42% of Republic RN and a huge number 61% of Democrats trusted. The president trusted the executive branch. But you go then and fast forward a few years later to 2015. And the number of Republicans that trust the U. S Supreme Court the most has dropped down into the twenties. Some of them have shifted. Some Republicans have shifted their allegiance to Congress, which by this time has to majorities. But levels of congressional disapproval are so high the Republicans really don’t run on Moss to Congress. What happens is the number of people that just say I don’t know and don’t want express an opinion rockets up to the high forties up. And that actually also gives you a glimpse of the level of institutional distrust and suspicion that we’re seeing in the election right now. So Ted Cruz, not alone in being suspicious of the Supreme Court, and that really does bring us toe how the death of event on Antonin Scalia and the vacancy on the court has has entered the presidential campaign that clip that we played of Cruz was from him in the Senate several months ago. But the Cruz campaign that is Ted Cruz, the presidential candidate, was also very quick to get on Twitter. In fact, Ted Cruz that the Cruz campaign was the very first to say that the Senate should not review any presidential candidates until the next election until there was a new parental after the election, until there was a new president cruises out quick. Marco Rubio followed a few hours later on Twitter, but with ah Mawr crafted statesman. But what we see then is that this very quickly entered the presidential campaign. Is there to stay? I think it’s really gonna fundamentally shift the tenor of the campaign, given the fact that, as we’ve said, the court, the vacancy on the court and what’s gonna happen with the court and and the appointment is gonna enter some of the biggest issues that are pending in the campaign abortion immigration, for example.

[0:17:48 Speaker 0] Yeah, this this is extremely important because the president plays a very big role in shaping the court and get the court is policymaker. If the president is there with a court but somewhat somewhat, I guess, antagonistic to his wants and his policy agenda. Then it changes what they’re gonna do. And so they are part of the policy policy making process. It’s it’s impossible to ignore them, and it’s somewhat it’s an unintelligent move. I don’t use the word ignorant, uh, unintelligent move to pretend as if the court does not matter in the policy making process.

[0:18:25 Speaker 2] That said, we’re going to hear that position accentuated or expressed. I think a lot in the upcoming campaign. Okay, we want to close a little bit closer to home. Early voting started this week in Texas, so given the voting rules in Texas, you have to be registered to vote already. The deadline was 30 days before the election, so you missed the deadline. Talk about that more than we talk about voting, I suppose. But for now, you can go vote early until next Friday. We’ll talk a little bit Maurin next time about the dynamics of early voting and how they contribute to the process. But in the meantime, convey very easily get on the Internet. If you’re in the Travis County area in the Austin in Austin, very easy to vote their voting centers all over the place for early voting. You don’t have to go to your precinct. You can just go to one of these voting centers with a state issued photo I D and your registration card, and and you can vote in one primary the other. We’ll talk more about those dynamics later.

[0:19:26 Speaker 0] All right, well, again, make sure you go out to vote. I believe there are voting centers here on campus of your own campus with the F A. C does have a place to vote. So please turn out to vote express. Make sure you’re able to express what you concerned about. Remember, you have the primaries and the caucus. So in order, participate in the caucus. You have to vote the primary. So be aware, aware of those things. But that’s all we have for this week. We hope you will have all have a good week. And we want to close with some comments from Justice Antonin Scalia up talking about his views on the court, All

[0:20:00 Speaker 1] there when I mean there it is said in some Supreme Court opinions that, you know, sometimes, ah, you know, the letter of the law is Ah is contrary to its spirit and its spirit must be must prevail. That’s nonsense. The letter of the law is the letter of the law. That’s what we’re governed by. We’re not governed by some judicial determination of spirit.

[0:20:34 Speaker 6] Government 3 10 and The news podcast is hosted by doctors Jim Henson and Eric and is produced by the liberal Arts TS Development Studio and the Department of Government and the College of Liberal Arts at the University of Texas at Austin