Jeremi and Zachary, with Stephen Vladeck, discuss the current nomination controversies in the Supreme Court, and the relevance of the courts to the youth today.
Zachary sets the scene with his poem, “By Allergy and Allegory.”
Stephen I. Vladeck holds the Charles Alan Wright Chair in Federal Courts at the University of Texas School of Law and is a nationally recognized expert on the federal courts, constitutional law, national security law, and military justice. Professor Vladeck has argued multiple cases before the U.S. Supreme Court and the lower federal courts; has served as an expert witness both in U.S. and foreign tribunals; and has been repeatedly recognized for his influential and widely-cited legal scholarship, his prolific popular writing, his teaching, and his service to the legal profession. Vladeck is the co-host, together with Professor Bobby Chesney, of the popular and award-winning “National Security Law Podcast.” He is CNN’s Supreme Court analyst and a co-author of Aspen Publishers’ leading national security law and counterterrorism law casebooks. And he is an executive editor of the Just Security blog and a senior editor of the Lawfare blog.
- Stephen VladeckLaw Professor at The University of Texas at Austin
- Jeremi SuriProfessor of History at the University of Texas at Austin
[0:00:03 Speaker 0] This is Democracy, a podcast that explores the interracial inter generational and intersectional unheard voices living in the world’s most influential democracy.
[0:00:21 Speaker 2] Welcome to our new episode of This is democracy. Today we’re going to discuss the Supreme Court, which we’ve discussed in prior episodes. But today we’re going to focus on the confirmation process for justices on the Supreme Court for their lifetime appointments. We’re going to talk about how this process is supposed to work, how it has worked in the past and why the current controversy over the nomination by President Trump of Amy Coney Barrett to replace Justice Ruth Bader Ginsburg. Why that controversy is so serious today? And what the stakes are not just for the future of American politics, but for the future of the Supreme Court. Really, we have with us one of the foremost scholars of this topic, a good friend who has been with us before. Steve Vladeck. Thank you for joining us today, Steve.
[0:01:06 Speaker 1] Thanks for having me back Jeremi. It’s a pleasure.
[0:01:09 Speaker 2] Steve Vladeck is the Charles Allen right chair in federal courts at the UT Law School. He is one of the foremost scholars of the Supreme Court. He’s actually the CNN analyst for that topic, among many others, and he writes extensively. I know many of you have read his op. EDS in The New York Times, Washington Post and elsewhere. He has a very active Twitter feed that. I’m
[0:01:30 Speaker 1] sorry I’m apologizing for my Twitter feed e
[0:01:33 Speaker 2] apologizing for your Twitter feed. You shouldn’t apologize for that. There’s some some sort of feeds are more valuable than others, right? Steve. He’s also the co host with another friend and colleague, Professor Robert Chesney. Bobby Chesney of the National Security Law podcast through the Strauss Center here at UT. This is one of the most important podcasts on understanding national security. I know many of our listeners listen to that podcast. He’s also part of the law, Fair blogged. So we have a lot to talk to Steve about today. But before we get to that, we have, of course, Zachary Siri’s scene setting poem What is your poem titled Today? Zachary
[0:02:13 Speaker 0] by allergy and allegory. Let’s hear it. There is a ghost land somewhere near of spirits of the Earth and aging oxygenated dirt, and there is hope, and there is hate but no one ever shows up late. They are driven purely by allergy and allegory, toe lonely far off woods, and they circle around the fire pits with their woulda. Coulda should. I am allergic to fear and allergic to rage. It makes me cry and it makes me age, for I can feel the poop deck fall right back and the ship opened up to the breeze. And what do you do when the ship is sinking in? The mice Onley care about cheese. I can see into the distance where justice can be served, but I have very little hope indeed that I’ll ever see this world. What’s it like falling backwards, Sinking with ship? What’s it like returning to the years of whip and zip? What’s it like at your station with your semi automatic gun waiting for tax evasion and religious lis salvation? What’s it like? Does it feel comforting to be armed while the world ends? Are you safer as the ship goes down because you can carry your gun to town? God created money so some would have to starve, and God created justice for the wealthy ones to carve, and God created people so someone could be killed and God created forests for the factories to mill. Still, you can grab the pickings. Is this sinking? Ships go under and we will save some hope. Indeed for yes, there is light among the thunder.
[0:03:41 Speaker 2] Zachary, I sense Yom Kippur approaching in your in your poem. Also, I have to say What is the relationship between this really evocative poem and the Supreme Court for you?
[0:03:52 Speaker 0] This poem is really to me about what’s it like at this moment in our history, where everything seems chaotic and in many ways depressing and to see, to see people trying to hold onto the last bit of power today in the Supreme Court. But all the time in different places, not actually trying to serve ideals, Butts trying on Lee to grab onto and hold on to the last bits of power
[0:04:14 Speaker 2] that seems like the perfect spot to turn to Steve Vladeck here, Steve. The confirmation process as laid out by the founders was not supposed to be disorderly. A Zachary described it was supposed to be a very orderly process. Is that correct?
[0:04:27 Speaker 1] I think that’s what they wanted. I’m not sure they did a lot to sort of guarantee that would be the case. I mean, the Constitution says nothing at all about the process. Besides that, they’re you know, that it exists. The Senate shall provide it’s advice and consent. It doesn’t say what that means. And you know, So I think, yeah, the founders, I think, envisioned Senate confirmations as you know, usually fairly rapid affairs, either because it would be clear that the person should be confirmed. Or be clear they shouldn’t be, Um, and, you know, in the history of Supreme Court, nominations is actually ripe with rejections. Um, of of candidates who are either deemed unqualified or too controversial or, you know otherwise sort of didn’t meet the bill. But the notion of the sort of hotly divisive confirmation here and splayed out over national television, that’s definitely more of, ah, recent development.
[0:05:20 Speaker 2] Just going back to the founding moment again. What was their sense of what the qualifications would be? And what did they mean by advice and consent? You say they were not clear, but we do have some sense of what they had in mind.
[0:05:31 Speaker 1] Yeah, I mean, I think you know, they wanted obviously folks who were who were qualified in the Senate’s view. And I mean, this is what’s fascinating. Jeremy. As you know, the Constitution creates qualifications for office in the legislative branch of creates qualifications for office in the executive branch. It creates no qualifications for judicial offices, including the Supreme Court, not because the founders didn’t think that these judges should be qualified, but because they thought the Senate would do that work that, you know, If the president just so happened to nominate ah, 14 year old Romanian gymnast to the Supreme Court, the Senate would have no trouble rejecting, said Nominee. So I think the idea was, you know, we wanted folks who were qualified in the sense that they had a career that show that they were, you know, of the highest caliber in the profession that they were able to dispense justice impartially and fairly, Um, and, you know, again, keep in mind the founders, you know, didn’t necessarily anticipate the rise of the modern party system. And so the notion that you know, confirmation battles would just devolved into, um, you know, competitions for which side could get over 50 votes. You know how far to the extreme of your party. Can you go and still get 50 votes? I think that would’ve been very foreign to the founders,
[0:06:44 Speaker 2] right? Right. And and, as you say, they were not aware. Or nor did they anticipate the party system as it soon developed. But of course, slavery was was a paramount issue. And is it fair to say, as I think our colleague Sandy Levinson has argued, that built into the court system is a kind of innate conservatism than a presumption that whoever is nominated would have to be acceptable to the most conservative elements in American society?
[0:07:08 Speaker 1] I mean, I think I wouldn’t say the most conservative elements, Jeremy, but I think, yes, that that that have in the Senate be in charge of the confirmation process, which, of course was a matter of some debate at the Constitutional Convention was either deliberately or at least consciously, um, a reflection of the notion that you know small states, which you know, including, but not limited to slave states. Um, would would would not get run over when it came to the confirmation process that, you know, there really would be geographic division. Um, and and and geographic representation in the confirmation process, no matter how population patterns emerged. And, you know, frankly, I mean the first Supreme Court nominee who’s rejected, um, is actually rejected on policy grounds. It’s John Rutledge from South Carolina who had been an associate justice on the first Supreme Court. Then he had left to go become the chief justice. South Carolina. He’s Washington’s first nominee to succeed. John Jay is chief justice, and, you know, he makes the, um, incredibly dumb move off, going out and speaking very, very aggressively, I think against, If memory serves the J Treaty while his nomination was pending, to which the Senate responds by probably rejecting his confirmation is chief justice. So, you know, the notion that political considerations are gonna be part of this process dates back at least to the Rutledge confirmation. Um, but, you know, it’s still not the same as what we see today where you have, you know, the party’s lining up neatly in the camps where, I mean, as we’ve seen with the nomination of Judge Amy Coney Barrett, where the Republicans have basically signaled and indeed did, basically saying that they were going to confirm whoever the president nominated before there was even a nominee that ZANU
[0:08:55 Speaker 2] right? And
[0:08:56 Speaker 1] so when would you
[0:08:57 Speaker 2] date the beginning of this more partisan process? When do we see the party’s lining up this way? And when do we see it becoming such a national political issue in the way it’s it’s become recently?
[0:09:08 Speaker 1] Well, I mean, I think the notion that the whole idea of confirmation hearings, I think, is part of the story and, you know, that dates back to the early part of the 20th century. Um, where, you know, the there was this moment, I think it was Justice. BRANDEIS. Where? Senate. The Senate actually wanted to actually ask some questions and have some process before he was confirmed in 1916. Um, the same thing happens with justice, um, black, um, in 1937 and so we see the sort of the gradual rise of the confirmation hearing. But Jeremy, even then, I mean, a majority of the justices, or at least a majority of the nominated justice, are confirmed on voice votes all the way into the late 19 sixties. Um, I mean, justice Fortis, uh, was converted 1965 on a voice vote. Imagine that today, Um, and, you know, even in the 19 seventies and eighties, you still see you? No heavily one sided vote. I mean, Antonin Scalia was confirmed 98 to nothing. Um, right. Sandra Day O Connor was confirmed 99 to nothing. John Paul Stevens was confirmed 98 to nothing. So I think it’s, you know, the Robert Bork confirmation hearings and the defeat of Bork as a nominee in 1987. I think we’re a flashpoint for this. I don’t think it began with Bork, Jeremy, but I do think it accelerated, Um, and became much more of a sort of consistent theme to confirmation hearings, starting with Bork. Um, Clarence Thomas. Um, you know, and and especially in the last, you know, 10 15 years. And and do you
[0:10:38 Speaker 2] think that’s because the court has become more important in the political lives of citizens?
[0:10:44 Speaker 1] Um, I think that’s part of it. Um, I also think that the court has also become perceived in much mawr, strictly partisan tones. Um, right. I mean, we had a long period of time where the idea where the political affiliation of the appointment president was not necessarily predictive of the justices. Ideological commitments. I mean, we had, you know, to Republican appointees John Paul Stevens and David Souter, who formed, you know, a big part of what was called the liberal block on the court. Um, you know, John Marshall Harlan who? We today I think what no one would think of as a conservative right was, you know, in Eisenhower Appointees. So I guess you know, Jeremy part of it is that, um we are viewing the court and more partisan terms. Part of it is I think the court itself is feeding this narrative by handing down so many more decisions that breaks strictly along these kinds of partisan lines. And frankly, I think part of it is just, you know, a symptom off the broader polarization of all of our politics where it was just, you know, inevitable. The Supreme Court would be part of that story. Is it
[0:11:48 Speaker 2] also that and this is an argument I’ve heard many make. Um, is it that the justices air now so vetted in such detail by presidents and their administrations that they’re actually choosing people who are less likely to change their positions over time. I mean, you do. You do point to David Souter is as one who did this, but it’s hard to see much movement. And Clarence Thomas, for example, during his time on the court.
[0:12:10 Speaker 1] Yeah. I mean, I mean, another way to put in that same thing, Jeremy, which I agree with this is, You know, we’re not appointing moderates anymore. And, you know, this is where I think one of the many casualties of the Merrick Garland affair was that, You know, whatever Mitch McConnell wants to say to the contrary, I mean, garlands a moderate. Um and, you know, that was, I think, a naive but olive branch by President Obama that, you know, for Scalia seat. You know, he’s not going to try toe Ram through. Ah, liberal, right? He actually want someone who is moderate and, of course, then said no, thank you. Um, you know, I think it is. It is increasingly not in the president’s interest to appoint anyone other than the most, you know, radical member of their party that they could get through the Senate. And that is as much about the Senate. I think this is about the president if the reality were, you know, if Trump knew that he could not get 50 votes for a you know, radical conservative if he knew he had to appoint someone much more moderate, then it’s very possible that, you know, we hear a very different name coming out of his mouth last Saturday afternoon. But, you know, he knows that the one thing he can absolutely count on in the Republican Senate majority at the moment is, you know, support for whoever he nominates. And so, as opposed to, say, Harriet Myers, who President George Bush, you know, nominated on Lee to have killed by his own party in 2005. You know, we knew going in that this was going to be someone pretty far the right. Indeed. That’s why a lot of people were able to predict it would be Amy Coney. Barrett.
[0:13:45 Speaker 0] Yeah, we’ve heard a lot lately about this idea of textual ism or originalism. When did this idea sort of become, like a calling card for conservative justices and and and And could you maybe give a brief summary of what textual ism or originalism is?
[0:14:01 Speaker 1] Yeah. I mean, so you know what the court. As Jeremy said, I think earlier, exactly right. The court has always been with maybe a very small exception, the 19 sixties and and late fifties, a small, C conservative institution in the sense that it moves slowly. It tends not to be at the forefront of social change, you know, tends to be responsive to broader shifts in public opinion and not ahead of them. Um, the rise of what we might think of as the modern conservative legal movement, I think, really does begin as a sort of backlash against the perceived excesses of the Warren Court. And so there’s a whole generation of lawyers, you know who go to law school in the sixties and seventies who goto work in the Nixon and Ford administrations and maybe even the radical administration for whom, you know, the court had become way too powerful, you know, in sort of expanding individual rights and expanding the role of the courts in limiting, um, what states could do in, um, allowing Congress to do things Congress never been allowed to do before on DSO This is you know, this is the generation that produces Antonin Scalia. This is the generation that produces, you know, Clarence Thomas and you know, Samuel Alito and sort of right behind them John Roberts. And I think it’s very much a you know it is. It is not about conservatism in the sense that the court should stay out of these affairs. It’s conservatism in the sense that the courts aggressiveness should be directed in other ways that that the court should actually be constraining the federal government when it comes to ordinary economic regulation and leaving more room for the states that the court should be, you know, doing more to recognize religious liberty as opposed thio un in numerator rights. Um, and I think that’s, you know, textural ism and originalism or parts of that movement. But they don’t describe the whole movement that, you know, um, originalism is one of the methods. Logical approach is that we tend to associate with conservatives, but it’s not the only one. Originalism actually doesn’t describe or explain the entire conserve understanding the constitution, not even most of it did a textual ism, but they’re all sort of swimming in the same direction, which is, you know, at least superficially constraining the role of judges in many, but not all cases.
[0:16:19 Speaker 2] So So this brings Steve us to the question that that, I think is a historian always animates our analysis of these issues. To what extent are these arguments about originalism or activism and restraint? To what extent are they really arguments motivating what people do? Or to what extent of a post talk rationalizations for power moves? It seems very difficult. Thio consistently find evidence that the confirmation process and then the jurisprudence of the judges follows some philosophy. It seems more obvious that it follows the desire for political power for particular groups.
[0:16:57 Speaker 1] Yeah. I mean, this is you know, this is I think this is the great debate and one of the one of the things that is maddening to me about the confirmation process is that the two whatever to what little extent, we actually end up having a public debate about these theories there, you know, the debates occur. Such a superficial level is to be almost meaningless. Um, so you know, the originalism debate is pitched in terms that no one could disagree with, right? That you know, of course, what the founders actually wrote And what those words were understood to mean is at least somehow relevant in how we understand the Constitution. No one disagrees with that, right? The question is, when should it be dispositive? Um, and you know, Jeremy, I think there really is a lot of evidence for the notion that at least plenty, not all but plenty of these folks, you know, used these methodologies the way the drunk uses a lamppost, right for support rather than illumination. Um, the problem is that, you know, that’s, you know, it’s hard. First, it’s hard to prove that, um, and second, you know, to actually get into the weeds toe to really explain the pitfalls with original public meaning as as, ah, you know, Touchstone of constitutional interpretation requires degrees of nuance that, you know, obviously we aspire to our law school classes. Um, but that air just impossible for the public sphere. And so, you know, just I mean, the example I always love to use, um is the excessive fines clause of the Eighth Amendment. So, you know, most folks know the Eighth Amendment prohibits cruel and unusual punishments. It also prohibits excessive fines. Um, and you know, that begs the question of course. Well, what makes a fine, excessive on? Do you know if we are engaging in a purely static form of originalism? Um then just about every fine levied by government today is excessive simply because of inflation. Right, Uh, To which, of course, every as well, no excessive obviously has to be understood by at least some reference Thio, you know, President conditions. And once you can see that you are giving up the ghost on most original because you’re saying at least some constitutional provision, our dynamic andi have to be understood by reference to evolving understandings. And then it’s just a fight over which provisions, you know fall into that category,
[0:19:18 Speaker 2] right? And it also seems to me as a historian, and I think this is something a Hillary tomorrow and other other legal scholars have argued as well. The history that is often used to justify an originalist position is actually not very good history. So it’s not actually getting it the originalism.
[0:19:32 Speaker 1] I mean, it’s not very good history, Jeremy. At the very least, it is often, um, debatable history, right? And so it’s I mean, I think the term that the law professors have for his law office history. Um, which is not It’s not a compliment to call someone a law office historian. Um, and I think I mean, you know, another really good example of this is the nerdy but important topic of state sovereign immunity. That is to say, when can a non consenting state be sued? Um, you know, without without just, you know if they’ve done something wrong. And there was this huge renaissance and revolution in the Supreme Court’s jurisprudence on this exact topic in the 19 nineties, spurred on by the conservative and spurred on by at least you know, um, putative indications of originalism. But the historical materials are actually incredibly ambivalent on this, and, you know, and so we have this problem where, you know, the the sort of folks who say I, you know, originalism is the only right way to interpret the Constitution. Just don’t, you know, don’t fully, I don’t know, account for how much of the Constitution can’t be satisfactorily. Um uh, their word is liquidated, but I would say fleshed out, um, right, solely based on even good history of the founding, because, you know, because the reality is the founders didn’t think about everything
[0:20:56 Speaker 2] they couldn’t. There’s no way they could. There’s no way eso coming back to the confirmation process if we don’t have a clear standard of what you know what justices should be thinking. I mean, ostensibly, we have a standard of whether the skills and behavior patterns we want when we’re appointing someone to be a tax collector or to play some other role like that, even to be a professor, right? The tenure process involves peer review. Do we do certain kinds of research? Have we met certain standards? If we don’t have that for the appointment of judges over, it’s much murkier. How do we avoid falling into the trap? It seems we’ve fallen into where this is purely about power, where the Senate, with the Republicans in control of the Senate under a Democratic president, say We’re not gonna let you replace Antonin Scalia. In fact, Amy Coney Barrett herself said that four years ago and now in the same Republicans are in control of the Senate and you have a Republican president. They say, Oh, well, now we’re happy to go forward in an election year. How do we avoid being stuck in a place where it’s purely about power, Or are we okay with that?
[0:21:54 Speaker 1] Um uh, that I mean, that’s of course, the really hard questions. I’m not okay with it being purely about power, if only because it means you polarize the court, right? That that insofar as our democratics, we’re gonna, you know, lead toa cyclical shifts in Who’s in power in Washington. You know, that’s going to create a superficially balanced court, Jeremy, but a court with no middle. Um and, you know, and I wrote a piece last year. The you know, one of things that I admired about Justice Sandra Day O Connor was that she really was a centrist, Um, in ways that Anthony Kennedy wasn’t like. We, we tend to think of Kennedy is being on the swing vote and the media and vote from, you know, for the most of the last 12 years of his career. But he was the median vote Jeremy Onley in the sense that if you averaged out his votes, he was in the middle, right, He bounced wildly from one side to the other. And O Connor was the opposite. O Connor was always in the middle. Um, and you know, Evan Thomas has a wonderful book about O’Connor called First, um, which I think, you know, spend a lot of time unpacking how the influence she had, not just in what the court would hold in these cases, but in how in which cases they would take in how they would even think about the issues just by the fact that she took a more pragmatic, centrist approach to these cases and what it means to a court that no longer has anyone like that. Um, and I think it’s whatever your politics, I think a court with no middle suffers from many of the same problems as a Congress with no middle, Um, which is that there’s no effort to build consensus. There’s no reason to compromise. There’s every reason to double down on tribalism. And I think the only way you can there are two ways to fix that. I mean, one way is a president, um, who is willing to unilaterally disarm, um, which, you know. I think it zz understand why there is no incentive right now for that to happen. Um, the other way is to actually, you know, not take it out of the president’s hands, but at least put some kind of bipartisan commission into the mix the way that a number of states do. So a number of states actually have judicial nominated commissions that are designed to actually, you know, identify really who are the creme de la creme who are going to be the best judges on merit. And then, you know, the relevant official, the governor, whoever you know, could pick one of the people who sort of elevated by the nominating commission. I know that’s a model we might want to think about. I mean, it has the slight small problem of being unconstitutional. Um, but, you know, maybe a president could at least soft commit toe following recommendations of such a commission as opposed to being bound by them.
[0:24:34 Speaker 2] Is there a curious way Stephen, which the filibuster sort of did that before it was eliminated for judicial appointments?
[0:24:41 Speaker 1] Well, yes and no. I mean, the problem with the filibuster is that it’s not symmetrical, right that that the filibuster allow, you know the filibuster it requires a super majority required even mawr from Democrats that required from Republicans because of the way, you know, because of the way population patterns are in the way representation works out in the Senate. Um, and so I don’t You know, I think the problem is that yes, it required that more than today, but still in ways that are asymmetrical, Not necessarily consistent. Um, I you know, I think the the better approach right would be to think carefully about, you know, sort of some kind of mutual deal where the median senators right like this. This was the idea behind the so called Gang of 14 proposal back in the two thousands, where seven senators from the left and seven Democrats, seven Republicans got together and said the 14 of us could control the flow of judicial appointments because both sides need us, and we’re going to agree on the basic principles right to guide those appointments. That’s what has disappeared. That’s what’s missing from today is anyone who’s going to exert, um, anything other than partisan, you know, justifications and commitments and qualifications on the confirmation process. And I think that’s unfortunate. Like, I think I think that really is a shame.
[0:25:58 Speaker 2] So just moving it to where we are, right today. If if Amy Coney Barrett gets confirmed, which it looks like she will. Yeah, okay. Either right before the election or right after the election. What should If there is a president Biden who follows this? What should he do?
[0:26:18 Speaker 1] Um, you know, I probably the worst person to ask that question of because, um, I am How do I put this gently? I am. Oh, I am a weird progressive in that I am a judicial supremacist. Progressive. Um, my sort of gut reaction is by that should do very little that, You know, I think there’s a conversation to be had about court reforms in general about ways off, you know, sort of making the federal courts fairer and more egalitarian in what they do. Um, I think there are personnel reforms with regard toe, sexual harassment, judiciary That, of course, should be pursued. Um, I think access to the courts would be a really powerful measure for the Democrats, where you know it’s so hard to actually sue the government when they break the law making it easier. Holy apartment. The judges are, I think, would be a positive step. I am not a fan, Jeremy of the notion of you know what you wanna call court packing or court unpacking or whatever. You know, whatever.
[0:27:19 Speaker 2] Pending the court expanding,
[0:27:20 Speaker 1] however you want to call it, I think it’s I think it’s very, very shortsighted because, you know, to whatever extent Democrats are rightly are rightly, um, angry about the hypocrisy of Republicans views of you what they said in 2016 verses today about how everything went down with the Kavanaugh confirmation. Here I am. You know, there’s no denying the anger and the frustration. The problem is is that if Democrats in 2021 add two seats to the Supreme Court, which Congress has the power to dio, then the next time the Republicans are in power, they’ll add four. On the next time the Democrats are in power, they’ll add six. And in 15 or 20 years, we’ll have a Supreme Court with 37 justices and no legitimacy. And so, you know, I know there are folks who will see that as a feature and not a bug. But I guess I’m not one of them, Um, and to me, the you know the way to sort of, um, pushback at all of this is to make it clear to everyone why we need the courts. What we expect the courts to dio if you wanna add judges, great ad judges to the lower courts. I mean, that’s not nearly the same kind of, you know, Norm, um, Norman Norm, Intruding behavior. Um, but, you know, messing with the Supreme Court, because for what will clearly be perceived as partisan reasons, I think is a very dangerous, you know, road to go down.
[0:28:42 Speaker 2] So two other quick questions. What do you think about putting an 18 year term limit on justices on the court?
[0:28:50 Speaker 1] So I I like the idea in the abstract. I actually do think there are ways to do it that would not be unconstitutional. Um, that’s usually the first objection to here is that they get life tenure. Um, there are way street article three, where as long as you keep paying the judges and as long as they have something to do after 18 years is not violating article three. Um, I’m not worried about the constitutional objections. I’m not sure that that would actually, you know, solve this problem like you know, So So Ah, confirmation every two years adds a degree of predictability of the process that reduces the odds that we’re gonna have the sort of unpredicted you know, Scalia, death, unpredicted Ginsburg death coming when they did. Um, but I don’t know why the appointments wouldn’t be just as, um, political in, you know, even if they were predictable. Um, I don’t know why presidents would be inclined to sort of moderate themselves at all in that context versus actually having a license to be even more aggressive and perhaps even more extreme. Um, and, you know, I also I don’t I don’t love the idea of justices who might be looking for jobs. Um, after I mean right, Amy, if Amy Coney barrett served an 18 year term, should be 65 when she left the court. Um, you know, that creates pressures that I’m not wild about, that there’s a whole history of why Congress finally broke down and gave the justice as good pensions. Um, right, because of all the awkward incentives that the lack of a good pension was created eso so I don’t I don’t I don’t mind the 18 year proposal. I just think that there are other ways that we ought to be thinking about. You know, the role of the courts in our system. Um, you know, if we think the court is hearing too many of these high profile, politically divisive cases, you know, Congress has a lot to say about the court’s docket, right? I mean, in 19. You know, Congress over over much of the 20th century gave the Supreme Court a lot more control over docket, culminating in 1988 where, you know, since 88 almost every single case the Supreme Court gets to choose whether to here or not. Why not go back on that? Why not? You know, actually start picking again more aggressively. Which cases the court has to here and maybe even finding some cases. We think the court shouldn’t here. I mean, I think you know, those are the kinds of conversations I think we ought to be having about court reform, as opposed to just, you know, thinking that we can somehow take the politics out of the confirmation process either by adding seats or by imposing term limits.
[0:31:09 Speaker 2] This is really helpful and very thoughtful. So So the final question I wanted to ask you. Then eyes about the current predicament. There’s no doubt that what we’re going through right now does to some extent delegitimized the court right. If the perception is supposed to be that you’re getting impartial justice and the process of getting on the court, no matter whose fault it is, is so highly politicized that certainly takes away the veneer of impartiality. It could be recovered. But it does take away the veneer of that to some extent. What happens if, God forbid, the election does somehow go to the Supreme Court, which it won’t necessarily and probably shouldn’t. How do you think the confirmation process affects that? And how do you think the nominee effects the role of the court? You mentioned Sandra Day O Connor before she will always be remembered, And I think she regrets right her role in, um, Bush v. Gore, the 2000 decision that actually gave the election Thio George W. Bush. So So how do we think about that moment and how we think about this moment today with this confirmation and this bitterly fought election coming up in 30 some odd days?
[0:32:17 Speaker 1] So I mean, I I think there’s no question that the Supreme Court is a much more fragile position today than it was in, you know, at the same moment in 2000. Um, and that you know. So So So just off the top, I actually think it’s gonna be very hard to see a repeat of Bush versus Gore, because this is a very different court today. Um, yes, it’s more conservative, but it’s also a court that I think is well aware of just how fragile things are at the moment. I mean, this is a court that I think is, you know, two or three steps away from, you know, really, really provoking legitimacy concerns among the majority population. There’s already a good chunk of the population, thinks it’s illegitimate. But, um so So I actually, you know, I I have I actually think if we do see an election related dispute that gets to the court, um, I expect them to actually be very wary of leaning in heavily in favor of the president. Um, and indeed, I actually think it got down to a Bush versus Gore like specifically, it wouldn’t surprise me at all if you know a confirmed Justice Amy Coney. Barrett recused herself, um, for two reasons. Right, Jeremy? I mean, the first is, you know, the the first is sort of practical and and a bit cynical, which is, if the long term conservative project is judicial hegemony. Ah, court with no legitimacy is antithetical to that project and, you know, sort of taking steps. They’re going to really, really undermine the public perception of the court. Um, in electoral context, I think could actually be far more dangerous today than it was in 2000. You know, keep in mind, Jeremy, in 2000, it wasn’t an incumbent who had appointed three of the justices, right? Who for for whom the court swung the election. Um, the longer term piece of this is I also think that, you know, if you are John Roberts and and you know who’s who’s one of the smartest guys around and who really does have, ah, you know, really does take the longer view. I mean, one of my one of my favorite John Roberts stories, um, is when he called Elena Kagan right after Kegan was confirmed by the Senate and said, Congratulations. I’m really looking forward toa toe working with you for the next 25 years on big ass back. You know, on Lee 25 right? Um, so you know, if you’re John Roberts, you know, one of the best things you could dio, um, is rule against Trump in election related dispute because that’s going to do so much to sort of quiet. You know, at least some of the legitimacy objections and at least some of the hostility on it’s going to create so much room for Roberts to actually do all kinds of bad stuff on the merits, Um, in the future. So I actually maybe this is naive, but I actually think you know, the specter of the new conservative majority. You know, icing the skids for Trump in the election is is really, really, really unlikely, if for no other reason that because it is in so many ways, going to be against the court’s interest to do that,
[0:35:17 Speaker 2] That’s very reassuring to hear. And and it makes sense. And I believe that myself. I, on the other hand, I just can’t imagine this did not come up in President Trump’s discussions with Amy Coney Barrett.
[0:35:29 Speaker 1] You know, I think that’s right. But I I don’t I mean one of the questions I really hope she’s asked at the very brief confirmation hearings to what she is going to be subjected, Um, is whether there were any discussions about election related cases and whether, you know, she was asked about whether she would Rick use in any of these cases. I would like that to be on the record, but, you know, I think it’s worth stretching, though. I mean, the it takes, you know, it’s not just about Amy Coney Barrett this point, like, you know, you need five votes toe win one of these cases and, you know, with the Chief Justice. And you know, this may sound surprising, but I think to some degree, you know, someone like Justice Kavanaugh. Um, I really think that they’re gonna beam or interested in protecting the courts power in the long term, especially now that they have such a solid majority to, you know, expand the Second Amendment to reinvigorate religious liberty, to push back against road, to do all kinds of really, really to me, problematic things. I think the last thing they want to do is spend all of their power. Um, you know, in an election dispute that’s gonna, you know, potentially lead to the re election of Trump and to the demise of the Supreme Court as a you know, Pop as a well regarded institution.
[0:36:41 Speaker 2] Interesting. So there’s a distinction you’re drawing, which I think is very persuasive between short term partisanship in long term partisanship.
[0:36:47 Speaker 1] E That’s right. And, you know, and I mean one of for better or for worse, when you have a Supreme Court with what or at least for the moment, effectively, lifetime appointments, Um, we should expect the justices to be much more focused on the long term politics and playing the long game. Um, and you know, I don’t know if that’s a good thing in the abstract, er, a bad thing. I think in this moment in time, you know, it’s probably a good thing, at least as we looked. Look ahead to the next six weeks.
[0:37:14 Speaker 2] That that’s that’s very helpful. Zachary when when I was your age and I think Steve’s about the same age as I am. So when Steve and I were your age, we were taught. I’m sure Steve was taught This is well in high school that the Supreme Court was the place that solve problems, that that issues that couldn’t be solved, uh, in the legislative process often went to the court and the great Earl Warren court and other courts under Warren Burger as well was a place where these things were finally settled by wise wise men, um, who deliberated over these issues. Obviously, it’s a very different world today is your poem pointed out? How do you and your generation when you think about these issues I know you’re thinking about them a lot right now. How do you view the court and what do you see as the future of the Supreme Court within our democracy?
[0:37:57 Speaker 0] I’m not overly cynical about the future of the court, but I do think that my generation is the whole is very cynical about American politics in general, but in particular, the Supreme Court. I think the Supreme Court is seen in many ways is an extension of politics, and I’m very interested to see in the next few years and even the next few decades, if the Supreme Court will be able to gain back some of that legitimacy. And maybe because of that perception, there will be forced to make, uh, make decisions that are more in line with the views of young people. But I’m I’m very wary of anyone who would claim that the Supreme Court has has supreme legitimacy across the board among the American population, because I think young people are really doubtful of its, uh, nonpartisanship. I
[0:38:40 Speaker 2] think that’s very insightful. Zachary Steve, Thank you for your insights. I think you’ve given us a really good sense of how the legitimacy of the court evolves and what the real crisis of legitimacy is today and how the confirmation process is part of that and how we could see ourselves. Maybe moving out of it in the future. Thank you for joining us, Steve.
[0:38:59 Speaker 1] Of course. Thanks for having me
[0:39:01 Speaker 2] and Zachary. Thank you for your poem and your your insights and most of all, thank you to our listeners. Please remember to vote. And if you live in Texas, please remember that you must register to vote within the next week. You must be registered one month before election day. And if you live in other states, please make sure you check on your registration requirements and whatever voting by mail requirements you have is, well, we look forward to hearing from you and speaking with you again on this is
[0:39:27 Speaker 0] Democracy. This’ll Podcast is produced by the Liberal Arts Development Studio and the College of Liberal Arts at the University of Texas at Austin. Theme music in this episode was written and recorded by Harrison Lemke, and you can find his music at Harrison Lemke dot com. Subscribe and stay tuned for a new episode every Thursday, featuring new perspectives on democracy, Yeah