This is Democracy – Episode 294: The Courts and the President

This is Democracy – The Courts and the President
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[00:00:00] Voiceover: This is Democracy, a podcast about the people of the United States, a podcast about citizenship, about engaging with politics and the world around you. A podcast about educating yourself on today’s important issues and how to have a voice in what happens next.

[00:00:24] Jeremi Suri: Welcome to our new episode of This Is Democracy.

[00:00:28] Jeremi Suri: This week we are going to talk about an age old, but also an urgent issue of our moment today. That is the question of the relationship between the courts in the United States, particularly the Supreme Court, but we might say that judiciary in general. And the executive branch, the presidency. What is the relationship between these two of the three pillars of our democratic republic?

[00:00:52] Jeremi Suri: How do they relate to one another? And in particular, we’re going to look at pardoning power, which is of course in the news quite a lot these days, but has a long history. And as with every one of our episodes, this episode will look at how history informs our current controversies and perhaps our current solutions if there are any.

[00:01:10] Jeremi Suri: We are very fortunate to be joined by a leading scholar and public intellectual and writer in our country. Jeffrey Toin. Jeffrey, thanks for joining us today. Good to be with you. Jeffrey Toin is a contributing opinion writer at the New York Times. He’s also a senior legal analyst at CNN and he’s the author of numerous books.

[00:01:33] Jeremi Suri: Uh, one of my favorite is, uh, the, is called The Oath, the Obama White House and the Supreme Court, which was published a number of years ago. Jeff’s most recent book, hot Off the Presses, is the pardon. The politics of Presidential Mercy. And I can tell you I just finished reading it this morning, in fact, and I highly recommend it, uh, to all of our listeners.

[00:01:55] Jeremi Suri: Uh, before we get into our conversation, however, with Jeff, of course, we have Mr. Zachary series, scene setting poem. What’s the title of your poem today, Zachary?

[00:02:05] Zachary Suri: It is a miracle the earth can twist.

[00:02:08] Jeremi Suri: I guess it is. Let, let’s hear about that.

[00:02:11] Zachary Suri: It is a miracle. The earth can twist spinning on a line that isn’t there, but somehow fits.

[00:02:17] Zachary Suri: The land is borderless, and yet frontiers persist. And in the ether, one can almost see molecules that don’t exist. Likewise is the law that gets to say what’s right, what’s wrong, that gets to right and beg and plead and sing a righteous legal song. But when day is done and judges sleep. Their word is dense and sinks down deep to earth where all erodes and is off smeared by common toads.

[00:02:47] Jeffrey Toobin: Wow. That, that reminds me of a famous quote, but I can’t remember, um, who it’s from. Maybe, maybe you or Zachary can help me. Uh, poets are the unacknowledged legislators of the world. Um, and that that poem. Put that, uh, phrase, put that phrase in my head.

[00:03:05] Jeremi Suri: Uh, I, I think that’s one of the themes of our podcast, uh, Jeff, which is how much we learn from, uh, poetry and the arts.

[00:03:13] Jeremi Suri: Uh, and I, and I think that’s an apt, apt way to think about it. Zachary, what is your poem really about?

[00:03:18] Zachary Suri: Uh, my poem is about how much of the law in our legal system depends on a sort of faith that, uh, legal judgments will be upheld and adhered to. And how at the end of the day, there really isn’t much else, uh, that keeps the rule of law enforce than that kind of trust and faith.

[00:03:36] Jeremi Suri: Yeah.

[00:03:36] Jeffrey Toobin: Is that correct, Jeff? Well, um, you know, it’s funny, I’m, I’m writing something about almost this exact topic now, um, which is sort of what. Is it about our system that makes people comply with, say, Supreme Court opinions? Because the Supreme Court commands no troops. Um, they can’t, uh, require people to follow what they do, but at least historically, um, they do.

[00:04:07] Jeffrey Toobin: And, um, it, it’s really a matter of culture and norms more than it is any, uh. Precise statute or even constitutional provision, which is at one level a great thing because it shows we have a, a common culture, but it’s also a fragile thing because, uh, the, the, there is no enforcement mechanism for a norm.

[00:04:34] Jeffrey Toobin: And, uh, as we’ve seen, um, in the past few, few weeks, um, that. There is no guarantee that norms will last forever.

[00:04:45] Jeremi Suri: So, uh, Jay Michael Tig, who is a, a conservative, uh, former judge and legal, uh, scholar who I’m sure you know well. Um, he’s recently written that the courts could actually defeat a president. He sees the courts as having a lot of power.

[00:05:02] Jeremi Suri: Is he overstating things? I,

[00:05:05] Jeffrey Toobin: I, I, I think I, I mean, I, I am a great admirer of Judge Ludwig, and he, he also, um, you know, he’s become a very, uh, important public intellectual in the past, in, in the past couple of years. I, I don’t think it’s a matter of the courts alone. I, I think, um, there, there are always a lot of factors moving in the air at the same time.

[00:05:29] Jeffrey Toobin: Um, I, I, I. But, but on balance, I don’t really agree with Judge Luting. I think, um, power, um, belongs to the powerful and, um, the, the branch of government that commands the military, that commands the executive branch, that is the executive, um, I think is a, um. It’s, it’s a very, it, it, it’s, it’s very hard to defeat that power.

[00:05:58] Jeffrey Toobin: Um, if you don’t. Um, it, if, if, if the executive is determined to triumph over the other branches, I. Right.

[00:06:09] Jeremi Suri: You know, I feel as a historian, Jeff torn on this issue and, and your book, which goes through the history of pardoning power, also raised this in my mind. You know, I think of a president like Franklin Roosevelt who certainly was able to pressure the court over time.

[00:06:23] Jeremi Suri: I. To, uh, approve things he wanted them to approve. But then I, I think of a president like Dwight Eisenhower, who very reluctantly had to send, uh, forces into Little Rock, for example, to enforce, uh, brown versus Board of Ed and other, other cases. So it seems as if the historical examples pull us two directions.

[00:06:40] Jeremi Suri: There are times the court is able to influence presidents and there obviously times the president is able to influence the courts.

[00:06:47] Jeffrey Toobin: Well, that, that’s true. Although, you know, the, the real secret to, uh. Franklin Roosevelt’s success was not any persuasive act. It was just getting elected and elected and elected.

[00:07:00] Jeffrey Toobin: Um, you know, he, he wound up with, um, eight Supreme Court appointments. He filled eight seats on the court, one seat twice. And, uh, I, I think, and, and that’s what really. Got, um, the New Deal approved. It wasn’t, you know, the persuasive power of his arguments. Um, and, and as for, uh, Dwight Eisenhower, you know, the, the, uh, I think.

[00:07:25] Jeffrey Toobin: You know, the, I happen to be looking at the Little Rock crisis just now and for something I’m writing, and it really was Herbert Brownell, his Attorney General mm-hmm. Who said, look, we don’t love the Supreme Court. We don’t love, uh, Earl Warren, but we, we, we have to enforce the law. As, as set down by the court.

[00:07:48] Jeffrey Toobin: So in that respect, um, it is an example of the persuasive power of, of the courts, but, um, that, that varies by president. Sure. And, um, uh, you know, as, as I think we all know, that that issue is very much up for grabs right now.

[00:08:05] Jeremi Suri: Yes,

[00:08:05] Zachary Suri: Zachary, it’s certainly become common to say in the last few weeks, um, that the sort of political situation we find ourselves in, um, particularly as regards the relationship between the presidency and the judiciary is unprecedented.

[00:08:18] Zachary Suri: From your perspective, how unprecedented do you think these challenges are today and, and, and what makes this moment unique? I, if it is.

[00:08:26] Jeffrey Toobin: Well, I, I think I’m going to, um, weasel out of answering your question because I, I think it’s important to remember how early we are in President Trump’s second administration.

[00:08:40] Jeffrey Toobin: And, um, you know, it, it is, it is of course true that, um, the president has sent mix the president and his administration, including, especially. Uh, vice President Vance have said, um, mixed, mixed signals about how much and whether they will, uh, uh, abide by decisions of, of the lower courts at least. And, uh, but, but we’re gonna know a lot more about that in a matter of weeks and certainly months, um, as these cases start to move through the appellate process.

[00:09:15] Jeffrey Toobin: Um, I think there’s some posturing going on right now. Um, but on, on the, on the part of the administration, uh, I think there are attempts, uh, through that posturing to influence the results that they get in court. But I don’t think we know exactly how, um. The challenges to judicial authority will play out.

[00:09:39] Jeffrey Toobin: And, and that’s, and, and I think that’s the heart of your question, which is, you know, are we in an unprecedented moment of conflict between the executive and judicial branches? Uh, and, and, and the, the answer to that is, you know, we’ll, we’ll know soon, but we don’t know now. Hmm.

[00:09:57] Jeremi Suri: What would be the costs to Donald Trump or any other president for that matter in, uh, disobeying the courts in doing what Andrew Jackson didn’t do, but his apocryphally claimed to have done, to say, you know, George, John Marshall has made his decision, now he can enforce it.

[00:10:13] Jeremi Suri: Uh, what would be the costs if Trump were to do that for Trump?

[00:10:16] Jeffrey Toobin: Well, well, the, the cost would be that, um, you know, the, there, there is. Still in this country, even in, um, a, a Republican party that is overwhelmingly in, in President Trump’s thro. Um, a, a belief that, um, the structure of our. Constitutional system requires a final, uh, arbiter, uh, for controversies.

[00:10:46] Jeffrey Toobin: And that final arbiter is the United States Supreme Court. This has been true since 1803. And the decision of of Marbury versus Madison, um, to, to ignore that, um, is to open a door to a kind of chaos that might actually, uh, red redo. To his detriment at some point, because, you know, it, it, it’s worth remembering in the big picture.

[00:11:10] Jeffrey Toobin: This is a Supreme Court with six conservatives, three Trump appointees in, in the vast majority of cases they are going to side with, with Trump. If. People think that the, um, the, those, those opinions are no longer binding. That’s, um, that’s something that could really, um, create a kind of chaos. That, that would not be helpful.

[00:11:41] Jeffrey Toobin: Uh, that would not be helpful to Trump. Uh, but on the other hand, if, um, he defies the courts on, on some issue that is really important to him, um, that risk may be worthwhile. It, it’s tough to answer that question in the abstract, but, uh, you know, without identifying what, what issue would, would. Provoke such a confrontation.

[00:12:05] Jeffrey Toobin: But you know, I, to answer your question, it would not be costless for, for, uh, Trump to uh. For Trump to, uh, you know, defy the courts.

[00:12:18] Jeremi Suri: Right. Well, and, and, and, uh, I, I think at the root of your answer, Jeff, is that there still is a consensus and a belief in many parts of our country across parties in the rule of law.

[00:12:30] Jeremi Suri: We might disagree on what the rule of law is, but it is, it does appear as if there still is a belief in the rule of law. Which, which brings me to ask a question about your, your brand new book. The Pardon? And I just want you to maybe recount for our listeners, why do presidents have pardoning power? Why is that within our rule of law, when, as you say at the start of the book correctly, of course this is a kind of old royal prerogative that somehow made its way into the Constitution.

[00:12:56] Jeffrey Toobin: Right? And another way of saying the same thing is that the pardon power is an anomaly because, uh, as most people know, the, the. Basis, you know, the, the underlying idea of the constitution is the idea of checks and balances and, you know, with the, with the different. The judicial, the legislative, and the executive power, you know, uh, rubbing against each other in, in some sort of, uh, you know, balance.

[00:13:28] Jeffrey Toobin: The pardon is an exception to that. There is no check and balance on the pardon power. The, the courts can’t interfere with a pardon. They can’t force a pardon. Same thing with the legislature. Um, this came up largely, um, through the initiative of a Alexander Hamilton. Who in the constitutional convention was the leading advocate of, uh, a strong president, uh, to replace the articles of Con Confederation that had no president at all.

[00:13:56] Jeffrey Toobin: And, and Hamilton had two, um, main ideas, um, that. You know, uh, underlying his belief in the pardon power, the first was he thought there was a, uh, a need for the president to ameliorate unduly harsh, harsh criminal sentences, which is, you know, pretty straightforward. And that’s remained, uh, one factor in pardons.

[00:14:23] Jeffrey Toobin: But the other I think is more interesting is, um, he recognized that, that it was a, it was a political tool. That presidents could use, especially in situations where there were, um, rebellions or protests, um, the president could use it to, uh, calm those protests to say, you know, I, I understand what you’re doing, but I’m not gonna prosecute you.

[00:14:49] Jeffrey Toobin: Uh, for your beliefs. And that came up almost immediately, uh, after George Washington became president. And we had the Whiskey Rebellion, which was a modest tax protest, um, way out west at the time, which means Pennsylvania,

[00:15:04] Jeremi Suri: right.

[00:15:04] Jeffrey Toobin: And that, um, and, and instead of prosecuting the pro protestors for treason or something like that.

[00:15:13] Jeffrey Toobin: Washington pardoned them. And that was, uh, I think a very successful, uh, use of the pardon power, likewise, in a much more consequential way. Um, Abraham Lincoln, after the Civil War, issued an amnesty, which was kind of group pardoned to the lower level soldiers on the part of the south as long as they, um.

[00:15:34] Jeffrey Toobin: Pledged allegiance to the Union. And what that meant was, um, he could begin the work of bringing the country together. So, you know, one, one, the, the point I make in the book is that from the very beginning, pardons weren’t just about mercy. They were about the exercise of presidential power. For better or worse.

[00:15:56] Jeffrey Toobin: Depending on how, how good you think the pardon is.

[00:15:59] Jeremi Suri: Right. Right. And, and the Abraham Lincoln, Andrew Johnson comparison that you make in the book, actually, and, and that I and others have written about is of course, uh, instructive. Right. Andrew Johnson also issues the Christmas day. Pardon? Of December 25th, 1868, I think.

[00:16:14] Jeremi Suri: Right. Which, which actually allows a whole series of confederates to come back into government. Right. And

[00:16:20] Jeffrey Toobin: include, I mean, and, and he pardons Jefferson Davis. Exactly the, the president of the Confederacy, which outraged, um, the radical Republicans who had been, you know, Lincoln’s, Lincoln’s biggest, biggest supporters.

[00:16:33] Jeffrey Toobin: And, and, and again, it just underlines, um, that, uh. Well, it, it underlines another theory, uh, the underlying my, uh, uh, behind my book, which is that pardons tell you a tremendous amount about presidents that yes, they, they offer an x-ray into the souls of presidents. And that the fact that, uh, Abraham Lincoln did not pardon the high level Confederate leaders and Andrew Johnson did, tells you a tremendous amount about the difference between Lincoln and Johnson.

[00:17:07] Jeffrey Toobin: Absolutely, and, and, and that, that. Kind of information carries forward to all the presidents who followed and, and much

[00:17:17] Jeremi Suri: of your book really the meat of your book focuses on, uh, president Gerald Ford’s pardoning of, uh, his predecessor President Richard Nixon. I’m gonna let our listeners read your detailed account of what you call a good man acting for good reason on Ford’s part, making a bad decision.

[00:17:36] Jeremi Suri: Uh, but what struck me, uh, in reading this is, uh, really until then, and, and really as you say, until, uh, Clinton’s presidency, bill Clinton’s presidency in the late 1990s, presidents don’t use pardoning power very much. Why does it pick up again? Why do we see more pardons starting with Clinton going forward?

[00:17:57] Jeffrey Toobin: Well, it, it’s, I, I, I think the, um. Well, well, let’s just talk in rough terms about eras In the 19th century. You know, the, particularly the latter half of the 19th century, there were a lot of pardons because there was no other way of people getting out of prison early, uh, except by pardon. But then in the 1920s, parole came in and that, um, offered a release valve for, for deserving.

[00:18:25] Jeffrey Toobin: Prisoners, uh, to get out. And Presidents felt less of a need to Pardon and pardons went down. Um, then you have in 1974 Nixon’s par, uh, Ford’s Pardon of Nixon, which, um, was incredibly politically controversial. I. Widely believed to have very negative political consequences for Ford, including perhaps the, the loss of the election two years later to Jimmy Carter and President shied away from Pardons.

[00:18:55] Jeffrey Toobin: Um, and, and, and that really continued, um, through much of, of, of, into the nineties and, and even into the next period. I mean, yes, there were some pardons, um, like the Mark Rich, pardon by, by Bill Clinton, which was, I think. Considered pretty disastrous. George Herbert Walker, Bush’s pardons of the Iran Contra.

[00:19:17] Jeffrey Toobin: Defendants also not highly respected. Um, the, the, and the um, and, and it’s only I. Recently that we’d seen this, you know, pickup of pardons, uh, with, you know, Joe Biden pardoning, his son, hunter, and then other members of his family. And of course, Donald Trump pardoning the 1500, uh, plus, uh, January 6th rioters.

[00:19:43] Jeffrey Toobin: I. Those are all controversial pardons, and yes, it’s true, there are more of them, but, uh, my, my belief is that those pardons will not wear well historically, and I could see other presidents shying away from it again, because, uh, I don’t think the hunter Biden pardon, or, um, Donald Trump’s pardons of the January 6th people and the ones he’s issued since then, um, will, will, um.

[00:20:14] Jeffrey Toobin: Uh, be, be a part of Trump’s legacy that other presidents will want to emulate. I, I guess what

[00:20:20] Jeremi Suri: I was getting at with the question also was, is this another sign of the rise of what, what some of us have called the imperial presidency, where presidents are using pardons and warmaking powers and various other elements of their repertoire, using them more often to assert supremacy over other branches of government.

[00:20:41] Jeffrey Toobin: Uh, you know, I, I, I’m, I, I, I am certainly a believer in, in your general idea that, that presidents are, uh. You know, e exerting their power a great deal more than they used to. I mean, there is, there is a provision in the Constitution that only Congress can declare war. But we haven’t had a declaration of war since World War ii, and we sure seems to have had a lot of wars, um, that, that have been initiated by presidents.

[00:21:11] Jeffrey Toobin: And that’s, you know, an example of how, um, they exercise a great deal, more power than they used to. Um, I think Trump in particular. Likes the pardon power because he doesn’t have to deal with anyone on it. He doesn’t, he doesn’t have to persuade Congress to do anything. He doesn’t have to worry about what the courts will do.

[00:21:31] Jeffrey Toobin: This is. Something he can do, like he used to fire people on the Apprentice. He, he, he has, uh, unreviewable authority and he, especially in his second term now, uh, is using that party to do the kind of transactional work he always does, which is, uh, punishes enemies and reward his friends. Zachary,

[00:21:57] Zachary Suri: I, I, I, not to pivot our conversation completely away from Pardons, but I’m, I’m also curious what you make, uh, given the sort of strange position of, of, of Trump having served now serving, uh, a second non-consecutive term about his relationship with the Supreme Court, many of whose members he, he appointed.

[00:22:15] Zachary Suri: Um, how do you, how, how do you think the Supreme Court and Chief Justice Roberts in particular have tried to position themselves relative to the Trump administration? And, and obviously it’s still early to say, but how has the Trump administration sort of postured itself regarding the court?

[00:22:29] Jeffrey Toobin: Well, I, I, I think, um, I, I think Chief Justice Roberts kind of wants things both ways.

[00:22:36] Jeffrey Toobin: Um, he wants, um, I. To maintain, um, the appearance of an independent judiciary. He wants, um, to, and, and I think he believes in that. I, I think, um, you know, he, he doesn’t like the idea of the judiciary being perceived as a rubber stamp, um, for Donald Trump or any other, uh, president. Um, however, if you look at his judicial philosophy.

[00:23:05] Jeffrey Toobin: It’s a lot closer to Donald Trump’s than, um, to, to any other recent president. I mean, you know, the formative experience of, um, young John Roberts career was serving in the Reagan White House in the White House Council’s office, where there was this great concern that the post Watergate reforms. Had weakened, uh, the president, uh, unduly.

[00:23:30] Jeffrey Toobin: Now, I think many people disagree about that, but John Roberts certainly believed it. And if you look at his jurisprudence, uh, in the, as a lawyer, as a lower court judge, and now for many years as Chief Justice, he has been someone who believes in expansive judicial power. So when these cases. Um, start to come up to him as they will from, from the second Trump term.

[00:23:57] Jeffrey Toobin: I expect that far more often than not, he will ratify what Trump has done. But at the same time, he wants to appear and I think he is still, uh, leading an independent branch of government, government, one that just happens to agree with the executive.

[00:24:19] Jeremi Suri: Interesting. But there, there have to be major differences between them, uh, over, for example, uh, birthright citizenship and things of that sort.

[00:24:28] Jeremi Suri: Maybe I, I

[00:24:30] Jeffrey Toobin: just, maybe I, I, I’m, I’m not prepared to say that of all the legal controversies, um, that have come up in this, you know, brief, uh, period that. Trump has been president for a second time. Birthright citizenship is the only one that I feel somewhat confident. Uh, Roberts would rule against Trump. I mean, I, I think the Constitution is sufficiently clear and the precedents are sufficiently venerable and respected that, uh, the idea.

[00:24:59] Jeffrey Toobin: That, that, that, that John Roberts would not wanna, uh, upset the apple cart of birthright citizenship. That, you know, people born in the United States are citizens. That’s been true for a hundred years in this country, and I don’t think that’ll change. But if you look at all the other controversies, whether it’s about immigration or federal spending, or Elon Musk, uh, I think, I think Roberts is, is a better than even, uh, chance for voting for.

[00:25:26] Jeffrey Toobin: Uh, voting for Robert, uh, voting for the Trump position rather than against it.

[00:25:31] Jeremi Suri: So, so you think that there’s a legitimate point of view that Roberts would have that the executive can close agencies that Congress has by statute created.

[00:25:44] Jeffrey Toobin: Well, it, it’s, I, I don’t think, I mean, again, not, not to be too much of a lawyer with you, but, uh, I, I think it depends what you mean by close, right?

[00:25:54] Jeffrey Toobin: Um, uh, like for example, the, the Department of Education is something I, I know something about. And they, and they have statutorily or, or, um, ordained programs like Title One, which gives, which gives, um, money to. Lower income school districts

[00:26:14] Jeremi Suri: or full, they have

[00:26:14] Jeffrey Toobin: pe uh, full, full grade scholarships or, or, um, um, uh, Pell grants to, to students who are going to college.

[00:26:25] Jeffrey Toobin: Uh, there is, as long as those programs continue. Um, for example, the, the, the, um. Uh, the Trump administration has said that student loans, which is a big part of what Department of Education does, will now be administered by the Small Business Administration. So, um, I think that’s permissible. Um, and, and as long as there is something called the Department of Education, which may wind up having a dozen employees, um, I, I, I think that’s consistent.

[00:26:59] Jeffrey Toobin: I, I think that’s something Roberts could, um, Roberts could endorse, um, that, that, that as long as the, the, the programs that congress funds are, uh, intact, and there is something called the Department of Education, which Congress created. Um, I think he, he, he’d likely allow it. Hmm,

[00:27:20] Jeremi Suri: Hmm. So, I guess, uh, Jeff, our, our closing question, we always like to close on one that sort of brings this history and contemporary analysis together in useful ways for, for people who care about democracy as we all do, I hope.

[00:27:34] Jeremi Suri: Uh, what are the ways that, uh, those of us as citizens who care about some rough balance between the different branches, what are the ways we can encourage, um, the courts to continue to. Play the role they should play. How can we as a citizen body, I, I think we all have a sense of how we can try to influence Congress, call our members of Congress, and we can try to influence presidential elections by getting involved in presidential elections.

[00:27:59] Jeremi Suri: But, but how do we as citizens influence the courts?

[00:28:03] Jeffrey Toobin: Well, I, I, you know, that, that’s a, that’s a great question and I think. One of the good things about, uh, our, um, court system is that the public can’t influence them much. Uh, you know, they, they, they are, they are an independent judiciary, and they serve, they serve for life, uh, for, for a reason.

[00:28:24] Jeffrey Toobin: What I, I think citizens can do is. Vote for president and vote for, particularly for the Senate, and listen to what the candidates have to say about the kind of judges they will appoint. You know, one of the, the frustrations to me, uh, about, uh, covering politics is I do, is that I. Candidates don’t talk enough about, uh, what kind of judges they will appoint and what those judges will, will stand for.

[00:28:55] Jeffrey Toobin: So, um, I, I think by the time federal judges are appointed, it’s really too late and frankly, it’s good that it’s too late, that the public can’t, uh, influence what, um, what, um. The, the, the judges do in any individual case. I think judicial independence in that regard is very important. But there was a big difference between the kind of judges, Kamala Harris and the kind of judges Donald Trump.

[00:29:26] Jeffrey Toobin: I. Would a point, and that’s something that people should think about when they’re casting their votes. And the same thing with senators, who will they, uh, vote to confirm, um, judges who believe one set of things or another. So in that respect, uh, it, it, it’s, it’s a matter of it, it is a matter of voting. But it’s a matter of paying attention to, to a set of issues that I think most voters don’t and they should.

[00:29:55] Jeremi Suri: Right. That makes a lot of sense. If I, if I can squeeze in a, a, a short follow on, what, what kinds of questions should we be asking? ’cause it seems to me when we do talk about, I. Especially Supreme Court appointments, it’s usually about whether the judge would be in favor of abortion rights or not. It’s about a substantive issue, not about the kind of jurisprudence they bring to the court, which seems to me what you are more interested in.

[00:30:19] Jeremi Suri: Right? No, I’m interested

[00:30:20] Jeffrey Toobin: in both. I, I, I’m interested in both. I, I. I, I have a pretty crude approach to this sort of thing, you know, um, John Kerry, whom I interviewed when he ran for president in 2004, uh, I, I always remember what he said to me. He said, of course, I’m gonna ask, um, judges if, uh, they would vote to uphold Roe versus Wade if I appoint them to the Supreme Court.

[00:30:46] Jeffrey Toobin: I have absolutely no problem with that. I think it’s, um, it, it, it’s, it’s a very important, um, it’s something very important to know about whether someone should be appointed and whether they should be confirmed, uh, by the Senate. It’s also true that, um. You know, judicial philosophy matters a lot. I, I, if, um, you know, a, a president says, uh, he will appoint, uh, originalists, uh, that tells you a lot about, uh, what kind of judges that is.

[00:31:18] Jeffrey Toobin: Judges who believe, uh. Um, that the Constitution should be interpreted as the words of the Constitution were understood at the time the Constitution was ratified. That tells you a lot about, uh, what kind of rulings there will be. But, um, at the same time, I, I am happy I. To go issue by issue, whether it’s gun control, whether it’s abortion, whether it’s church state relations, and, and see what these people do because those decisions have a tremendous impact on how life has lived here.

[00:31:52] Jeremi Suri: Well said. Well said, Zachary, to close out, what, what do you think about. That. Do you think that, uh, what Jeff is laying out very eloquently here, a focus, um, more intently in election seasons, uh, on, uh, the kinds of people one would appoint to, uh, judicial roles. Do you think that’s something that, that young people, uh, will get interested in and pay attention to?

[00:32:15] Jeremi Suri: I

[00:32:16] Zachary Suri: think so. I think it’s also part of how a lot of young people, particularly those who care most about issues like abortion or. L-G-B-T-Q rights are already thinking about elections and their relationship to the judiciary. Um, I, I think that, uh, these kinds of discussions, uh, in the, in recent years have become so much more normal around elections.

[00:32:35] Zachary Suri: I mean, just look for example, at Wisconsin, uh, state Supreme Court races, um, that have, uh, completely centered on major political issues. Um. Of the day. And I, I, I think also there’s some evidence that people voted that way in the, even in the, in the latest, uh, presidential election. Um, so I think we’re already moving in that direction.

[00:32:57] Jeremi Suri: That makes sense. That makes sense. And it’s good to remind our listeners, those of you in Wisconsin in particular, there is an April 1st, uh, election for Supreme Court Judge in Wisconsin. Make sure you vote if you are in Wisconsin now. Uh, Jeff Zachary, thank you for this. Discussion. I think this really highlighted how vital the judiciary is to our democracy.

[00:33:18] Jeremi Suri: Uh, a point Alexander Hamilton certainly understood, uh, and how important it is for all of us to be aware, and as Jeff has told us, to be engaged with these issues when we make our choices at the ballot box, when we get involved in our politics and our activism, and when we think about our history as well.

[00:33:34] Jeremi Suri: Uh, Jeffrey Toin, thank you so much for joining us today.

[00:33:37] Jeffrey Toobin: Thanks, thank to you both. Thanks to you both.

[00:33:40] Jeremi Suri: Uh, Jeffrey Turin’s book again, he’s written a number of books, uh, but the most recent one that I just read and highly recommend to everyone, the pardon, the Politics of Presidential Mercy really brings out something a number of us, as historians have written a lot about, but Jeff has, has.

[00:33:55] Jeremi Suri: Has brought his, his focus and analysis to it as none of us have before, and really understanding, uh, the pardon and its strange role in American democracy, a role we all need to better understand as we go forward. Thank you, Zachary, for your, uh, scene setting poem, by the way, the, uh, phrase that, uh, the poets are the legislators of our society.

[00:34:16] Jeremi Suri: That comes from Percy b Shelley, one of the, the great poets of the 19th century, of course. Uh, Zachary, thank you for your poem today. You’re very welcome and thank you most of all, to our loyal listeners and loyal subscribers to our substack for joining us for this week of This Is Democracy.

[00:34:34] Zachary Suri: This podcast is produced by the Liberal Arts ITS Development Studio

[00:34:37] Voiceover: and the College of Liberal Arts at the University of Texas at Austin.

[00:34:42] Voiceover: The music in this episode was written and recorded by Harris Kini. Stay tuned for a new episode every week. You can find this is Democracy on Apple Podcasts. Spotify and YouTube. See you next time.