Knight Distinguished Journalist in Residence and Joseph Goldstein Lecturer in Law, Yale Law School; Coauthor, The Burger Court and the Rise of the Judicial Right
Editorial Writer, Washington Post
Host, Conversations in the Digital Age with Jim Zirin; Author, Supremely Partisan: How Raw Politics Tips the Scales in the United States Supreme Court
Former Political Columnist, Time Magazine
Experts provide their perspectives on the polarization of the U.S. Supreme Court, the role partisan politics has played in recent decisions, and the impact of the presidential election on the Court.
KRAMER: Good afternoon, everyone, and welcome. This is an important day for many reasons. We have a lot to discuss, and I’m going to skip the biographies because you have them on the paper and we need our time.
So it’s an important day because apparently, according to the president, we are exactly one week away from his announcement of a new nominee to the Supreme Court. As you know, this wouldn’t matter much if the law was unambiguously clear, if everyone could simply read a text, derive a conclusion that couldn’t be interpreted in any other way. But, of course, that ain’t the way the world really works.
And while it’s fun and instructive, I think, to consider whether a particular justice is an originalist or a textualist or a believer in the Constitution as a living document, it all ultimately comes down to nine people making a decision, no matter how they justify it in their opinions. Which means, I think, that the words that we should always remember are those of Charles Evans Hughes, who basically says the Constitution is what the judges say it is, and they’ll find verbiage to defend it.
That said, we are not going to speculate about the various names that are floating around in the paper today, although you’re free to bring them up later in Q&A, because we kind of think it would be a fool’s errand at this point. Suffice it to say we will take the president at his word and assume that the nominee who emerges next week will be Scalia-like—maybe Scalia-lite, but Scalia-like—which will mean controversy and struggle. Chuck Schumer has said the Democrats will fight, quote, “tooth and nail” if the nominee is “outside the mainstream.” And however the mainstream might be defined, I think it’s fair to say that the Democratic minority in the Senate, at least, will find Trump’s choice outside it.
So we’re going to ask Jim Zirin—(changes pronunciation)—Zirin, excuse me, a friend forever—to take us through the process, help us understand a little bit what the confirmation battle will look like. Should we expect a filibuster? Explain to everyone who doesn’t know what the nuclear option is, whether it might be invoked, and how you see this playing out in the next several months. But I should say, by the way, that, if history is a guide, everything else will pretty much stop until this is resolved because it’s such an important moment.
ZIRIN: Well, of course, Mike, it might take nine justices of the Supreme Court to interpret what the words “tooth and nail” mean, and “outside the mainstream.” (Laughter.) But Schumer used both of those phrases, and no one knows what the boundaries are.
The Republicans, of course, have a majority in the Senate. The Senate must advise and consent to the president’s nomination. Republican majority is 52-48. It probably will hold solid behind at least one, possibly two of the candidates that the president puts forward. If they do vote along party lines and if the person nominated is deemed by the Democrats to be outside the mainstream, they will have the power to filibuster, in which case the nominee must command 60 votes in the Senate in order to stop debate. So there really has to be a certain amount of bipartisan support.
Now, you mentioned the nuclear option. The nuclear option is the Senate, because they control—the Republicans, because they control the Senate, can change the rules, and they have the power to change the rules—the filibuster rules—so that a simple majority will be sufficient to signify advice and consent. So you have a situation where the issue will be just how far off—however the spectrum is defined by the Democrats, how far off the spectrum Trump’s nominee is, and will they muster enough support in order to reject the nominee.
Eight nominees in the last half-century have either been rejected by the Senate or there’s been an indication by senators that was sufficient to derail a candidacy. So this is nothing new if someone is rejected. In effect, Merrick Garland was just rejected. And they—certainly it is within the purview of reality that the nominee will be rejected.
GREENHOUSE: I just want to kind of amend that, if I may. Of course, Merrick Garland wasn’t, quote, “rejected.” He was totally blocked in an outrageous move of political power where he never even got a hearing and many Republican senators refused even to meet with him. So that’s part of the background of this. There’s a great deal of anger on the Democratic side by members of the Senate who feel—correctly, in my view—that President Obama’s Supreme Court seat was robbed by this—by this blockade. So that’s part of something that’s in play as we wait for this.
Can I just ask Chuck, as the Washington insider among us: Can this hold until next Thursday? Assuming the president’s made a decision, I can’t believe it’s not going to leak.
ZIRIN: Or he’ll tweet.
LANE: Well, I have a vested interest in ferreting it out because I’m a—(laughter)—I’m a journalist, so I take that question rather personally, Linda. Are you suggesting—(laughter)—are you suggesting that I am incapable of finding—
GREENHOUSE: Not at all, I’m (saying ?) the president is incapable of keeping it secret for a week.
LANE: Wow. We’re not supposed to engage in a whole lot of speculation, but in a way we don’t have to because already three names, which probably a lot of you have read, have leaked in a seemingly semi-authorized fashion.
LANE: So I guess the answer to your question is—would it leak kind of before it were officially announced? Listen, I mean, we have a new style, to put it mildly, of public communication in Washington now. (Laughter.) So I suppose anything is—anything is possible.
But, I mean, just to finish the thought, I had a similar kind of, you know, off-the-wall question for myself, which was suppose just he thinks of somebody else, you know, between now and Thursday.
ZIRIN: Like Ted Cruz.
LANE: Well, anybody who hadn’t—
ZIRIN: Barack Obama. (Laughter.)
LANE: —hadn’t been vetted, but it just kind of, you know, occurs. I remember that, after the election, he promised that on December 15th I will have a press conference about my program for resolving my potential ethical conflicts, and that press conference then did not occur until a month thereafter. So I’m not actually marking my calendar for next Thursday, but, you know, if it happens then it’ll happen.
KRAMER: OK. So let’s just assume it happens. At some point, someone is nominated. At some point, after a lot of fighting and good stuff like that, someone is confirmed and we have a full complement on the Court. Linda, help us understand what that means, what cases, what issues have been basically put on the backburner because we’ve had only a 4-4 possibility, only eight justices, and where you think the hot-button issues are in this term and a little after that.
GREENHOUSE: Yeah. So, of course, replacing Scalia with a Scalia-like nominee is kind of pushing a reset button on a lot of the big issues. It’s not going to change what had been before Scalia. Since his death, and with the 4-4—with the eight-member Court, we’ve seen an inability to decide on an important labor law issue. We’ve seen an inability to decide executive power, President Obama’s executive decision regarding immigration. We’ve seen an inability to decide an important religion case, the claim of conscience against abiding by the contraception mandate on the Affordable Care Act, and another religion case which they—which had been granted just before Justice Scalia died, has been ready for argument for months but has not been scheduled for argument. So those are the ones that are sort of, you know, currently stuck.
Now, there are bigger issues where the Court was very divided, and it was kind of clear that there were doctrinal tectonic plates in motion, and it wasn’t quite clear which way things were going to go. For instance, the other side of the First Amendment—there’s the religion clause—but on the speech clause we’ve seen in this administration a kind of a—I mean, in the Roberts Court kind of a weaponized First Amendment, where the First Amendment has been sort of captured as a deregulatory tool. And the extent to which that’s going to continue—even when Justice Scalia was alive, that’s sort of up for grabs. There’s a lot of discomfort on the conservative side of the Court about the regulatory state and, as a separation of powers question, the deference that the judiciary owes to executive-branch determinations, the executive agencies’ understanding of the scope of their own power delegated by Congress. That sounds highly technical, but if you look at the flip that occurred on January 20th, it used to be the conservatives who were getting a little bit sick and tired of the rule of deference—it’s known as Chevron deference—to a Democratic-controlled executive branch, and I’ll be totally fascinated to see whether the same discomfiture persists now that we have a Republican-controlled executive branch.
So those are just a few. You know, you could think about the Second Amendment. You know, we had the—Justice Scalia wrote the 5-4 majority opinion in 2007, I guess it was, the Heller case, finding in the Constitution, in the Second Amendment, a(n) individual right to possess a gun. But since then, the Court hasn’t said much, and we don’t know whether that means a gun outside the home, a concealed weapon, whatever. There are a lot of cases rattling around about that. One’s just been filed to the Supreme Court.
So you can say pretty much anything that Americans care about is plausibly up for grabs within the coming years.
KRAMER: Yeah. Let me—let me just ask you a little bit about immigration, since it’s something that he’s—the president has already weighed in on, obviously, in these first few days, both with his proposal to ban Muslims from certain countries, do something about funding of cities that persist in being sanctuary cities. Do you see cases bubbling up around those issues?
GREENHOUSE: Well, I’m sure there will be. And that’s an example of something, actually, that I meant to say, that this administration is going to be so disruptive that there will be cases that will make their way up rather quickly to the Supreme Court, where we don’t really know where some of the conservative justices, Chief Justice Roberts, where he may be going on these. I mean, the executive branch, the president and—the political branches, you know, classically have a great deal of slack in defining our immigration law, and the Court has been over time quite deferential under the notion that the Congress has a plenary power to define and protect our borders. But where the pressure point could be and when that claim may go too far—
KRAMER: Well, what if—protecting our borders, what if that somehow is resolving itself in the new executive order authorizing what we consider torture? What happens then?
GREENHOUSE: Well, of course—
KRAMER: You have some case law already.
GREENHOUSE: Yeah. Well, there’s a statute on the books, the Convention Against Torture. I think, you know, if that—if that actually gels and—
KRAMER: Is not a hypothetical.
GREENHOUSE: —our new secretary of defense, you know, puts up with it, or the intelligence agencies put up with it—that’s a lot of “ifs,” but if some claim like that came up to the Court, I think the Court would be quite receptive. I mean, look at the line—
KRAMER: Receptive how?
GREENHOUSE: Receptive to the claim that there was some kind of violation there, whether statutory, due process. Because look at the whole line of Guantanamo-related cases that came up in the Rehnquist and Roberts Courts, where at the end of the day the Court said these Guantanamo detainees are not in a legal black hole, but they have a right to petition for habeas corpus, and that comes within the jurisdiction of the federal courts. That was a big pushback by a conservative Court against the Bush administration and against Congress, so I wouldn’t—I wouldn’t write that off.
KRAMER: Go ahead.
ZIRIN: Yes, it’s interesting. Of course, the Bill of Rights-type cases that Linda referred to—guns, gays, and God, I like to say, in my book—are very important to all of us, and they seem to be front and center in the discussion. But I think you touched on what is really—could be the key issue with an administration such as the one headed by Mr. Trump, which is the discretion of the executive and the separation of powers, and the degree to which the executive has the power to use congressional statutes as a springboard and to twist, really, the meaning of those statutes from what was normally understood, either because of generalized language in the statute or because that’s the president’s interpretation of it.
So, as Scalia himself said, well, the Bill of Rights is great, but lots of banana republics have bills of rights. What is it that really protects us from tyranny? And this was what Madison and Hamilton believed: what really protects us from tyranny is not the Bill of Rights, but the separation of powers, and the checks and balances that are embedded in the main body of the Constitution before you even get to Amendment 1. And that’s really where, I think, the action will play out.
KRAMER: All right. So, just staying with that point, let—Chuck, let me ask you this. I thought when you—that you were going to say that there might be an opportunity, or the Court might decide to defer to the executive, to the president in this case, because of some threat. I mean, what—in the whole area of national security, when it’s invoked to override statute, how do you think that’ll play out?
LANE: You’re asking me, or?
KRAMER: Yeah, either one of you. I mean—
LANE: Well, as is so often the case, it depends entirely on the circumstances in which these cases arise. And, of course, for the lawyers in the group—of which I am not one—the concept of standing will be a familiar one, but basically it’s the notion that somebody actually has to have a personal vested interest or experienced some injury as a result of these actions.
You know, with respect to torture, it’s not enough for the president to just say I’m going to torture people at some point. There has to be actually somebody who gets tortured or is about to be tortured. And, by the way, if it’s going on in a black site, it’s going to be kind of hard to get a lawyer to him. But just put that to one side for a moment. So there’s going to have to be cases. There’s going to have to be concrete injuries. That’s first.
And second, the courts—(audio break)—Obama for the last eight years, and I believe the district courts still get the first crack at these things, and that will be very important. They will be looking at them not in like some abstract sense, but in light of the last 15 years of lived experience of this country. So that there was a lot of enthusiasm for greater executive power under a very broad concept of war powers in the wake of 9/11. I mean, a lot of people, and I might even confess to that myself. And then, when it was actually worked out in practice, people got a little bit better sense of what all the problems of that were. And now that’s all in our national memory and in the memory of the courts, and so it won’t be like if there’s some big terrorist attack and then Donald Trump says the solution to that is to go out and torture a whole bunch of people the courts wouldn’t be able to say, well, you know, we’ve kind of been down that road before.
Interestingly, our intelligence agencies are in somewhat of that position. And not even Mike Pompeo, at least as I read the news, has been sort of enthusiastically—or enthusiastic about going back down there.
So I think that the specter of executive abuse—and I have to be careful how I say that—also depends on the image the courts may have in their mind of who exactly the executive is, right? And the precise circumstances under which the cases are arising, both generally and in particular cases, will be very determinative. And I’m just—you know, I meant that in an optimistic way. (Laughter.)
ZIRIN: (Inaudible.) We understand up here where you’re going.
GREENHOUSE: I think that’s right. And I think, you know, this is such a freighted subject, and the history of it is so recent and so vivid that I could certainly envision whistleblowers and, you know, resignations. And, I mean, yes, black sites are hard to penetrate, but I don’t think that anything like that would be totally off the screen. When it happened after 9/11, it was sort of beyond the concept of the public, but now it’s very much in our mind. And I don’t think—I don’t think they’ll be able to get away with it.
ZIRIN: But you can really visualize a law-school-type hypothetical. I mean, suppose there is an attack which the president associates, as he did in his inaugural address, with radical Islamic terrorism, and he says all right, the time has come: all Muslims must register, because that’s the way we can identify who’s likely to be a terrorist, and that’s how we can identify these homegrown one-off terrorists who somehow are radicalized because they read something on the internet. So we want all Muslims to register.
Now, Madeline Albright has said that if that happens, she’s going to register as a Muslim. (Laughter.) Now, then what happens if Jeff Sessions’ Justice Department decides to prosecute her under Section 1001 of Title 18 for making a false statement to the federal government? So then the fat’s in the fire. (Laughter.)
KRAMER: She could convert in the middle of—
ZIRIN: Well, then is the conversion sincere or did she do it for political reasons? You’re going to get into very, very exciting issues in the federal courts. (Laughter.) As you say, Chuck, in the lower federal courts, which are largely peopled with Democrat-appointed judges. And it’ll be very interesting to see what the results are long before these issues reach the Supreme Court.
KRAMER: Well, it’ll also be interesting, in that hypothetical, to see what does happen at the Court because, and one of you can talk to this, we’ve seen a crack in what we thought was the ideological purity of Anthony Kennedy and the chief justice with respect to some of these cases. I mean, there’s been a lot written about—especially about Chief Justice Roberts preserving the integrity and the position of the Supreme Court in the firmament of our society. Is that maybe where the rubber meets the road, where he stands up to a president of his own party because he’s fearful of the integrity of the Court, or the credibility of the Court being besmirched?
GREENHOUSE: Well, he may have some very tough decisions to make, where his ideological preferences meet not only his concern for the institutional welfare of the Court, but he’s a very good lawyer. And, you know, I think he ruled the way ruled in the two Affordable Care Act cases principally because he was too good a lawyer to buy what they were trying to sell. And so I think it’s a combination of those two things. You know, maybe kind of a thin reed, but I do think the Court certainly is not going to be rubber stamp for crazy stuff that emanates from the other end of Constitution Avenue.
KRAMER: Well, then you have the definitional problem of “crazy stuff.”
GREENHOUSE: Yeah, yeah. (Laughter.)
LANE: Well, we’re going to have to expand the definition, whatever it is. (Laughter.)
ZIRIN: “Crazy stuff” is what we fight against “tooth and nail.” (Laughter.)
KRAMER: That’s right. I don’t know—I don’t want to stick on this too long. But it does seem to me that the hypothetical of another terrorist attack on this country is more real than not perhaps. And conversely, the possibility that this particular president will try to clamp down in ways that we would—many of us would consider a major violation of civil liberties—maybe even up to FDR-like internment—do the courts really step in at moments like that, at this point? They didn’t with the Japanese internment.
GREENHOUSE: And yeah, and I think they’ve been sorry ever since. So, you know, it was—that was very much on their mind I think when they unexpectedly, surprisingly, weighed on the Guantanamo cases. You know, what first made me realize that, oh, they really might actually take this case was an amicus brief that was filed in the first round of those by Fred Korematsu, who was the Japanese-American plaintiff in the Korematsu case, where the Court rejected his claim and upheld the Japanese internment. And what Fred Korematsu said in that brief was, hey, you made an error of historic dimension a couple generations ago. And you know what? I’m still here to remind you of that and to urge you not to make the same mistake again, and treat Guantanamo Bay as a legal black hole. So, you know, that’s not forgotten. It’s in the Court’s current consciousness. And you know, maybe I sound like a Pollyanna, but maybe I just have to believe that there could be some stopping point.
ZIRIN: Well, I also think it’s a misperception that the liberals on the Court always vote in favor of civil liberties and the conservatives always vote against civil liberties. In the famous Korematsu case, which was a dark day in the history of the Court, such rock-ribbed conservatives as Black and Douglas voted with the majority. And you move forward to more recent times, and you have the flag burning case where Justice Scalia held that the activities of flag burners are protected by the First Amendment. I think most conservative judges would agree with him today, with perhaps the exception of Clarence Thomas. The president said if anyone burned the flag they’d be stripped of their citizenship. Well, there’s a Supreme Court case that says that you can’t punish people by stripping them of their citizenship. I think most conservatives would say that’s unconstitutional and in fact protected by the original understanding of the Constitution, however they interpret the Constitution.
But the—I think the central thing for most of us not how doctrinally the judge gets to the decision—as you said, the verbiage. It’s the outcome. We all think in terms of the outcome. It’s almost a gestalt approach to the Supreme Court. And I think we’ll be watching very carefully to see how these courts interpret these very important questions, as the new administration evolves.
KRAMER: Chuck, do you have anything you want to add to that before I ask another question? Go ahead.
LANE: No, no. I’ll wait for your question.
KRAMER: It’s kind of a rule of thumb at this point that a Scalia-like appointment returns the Court to the status quo ante and that the next vacancy could be the one at which the Court is turned one way or the other. And leaving aside what Linda was properly saying before that, you know, it could be a more conservative justice who retires rather than a more liberal one, as we think now, do you have any sense at that point that you could have a full-stop in the Senate, where somehow we go back to the Merrick Garland thing, and it’s just no confirmation? Could things get that crazy?
LANE: You asking me?
LANE: Well, I hate to say it depends, but it does depend on exactly when it happens and who controls the Senate at that moment, and so forth. But let’s assume that it happens sometime between now and 2020 and the Republicans still control the Senate. I don’t think the—I’m racking my brains—I don’t see the leverage the Democrats have to stop it, right, because I would assume at that point either the nuclear option would have been invoked on the first nominee or it would be invoked then. But maybe this is the moment where I’m going to give you maybe a little bit a wider take on that.
You know, as I think—the title of our afternoon here is “The Future of the Supreme Court.” And as we were talking about it before, I was telling my colleagues here how I sort of look at that. It’s not so much to think about kind of what’s going to happen or might happen now that Trump has the power to nominate new people, but what was—what would have happened in the alternative scenario that we all expected, which was that Hillary Clinton was.
And I say this not in the sense of sort of, you know, just a wild alternative hypothetical, but to measure how different our situation—the Court’s future is a result of this election. Because all this numbers game that we’re playing now would have been completely different. We would be talking about for the first time in half a century there being five Democratic appointees on the Supreme Court, all of whom would have been relatively young and would be on top of a federal court system that generally, as I said, was dominated by Democrats.
So you would have had a huge swing toward Democratic appointees controlling the federal courts, with all that implies for a lot of cutting-edge legal issues—transgender rights, perhaps a rollback on the restrictions against gun control, I’m thinking about voter ID cases, a lot of issues relating to environmental regulation, on and on and on. And what we have instead is the situation we’re discussing now.
KRAMER: Alternative facts.
LANE: Yeah. And that—as I look at—as I look at the future of the Court as it is, I can’t help but looking at it in light of what it kind of almost was. And I think, just to conclude, that’s part of why Democrats are likely—are feeling so much like they want to fight tooth and nail, because they feel the Merrick Garland thing, excuse me, snatched all that unfairly away from them, together with the election.
GREENHOUSE: Chuck comments just prompt me to make one observation about the—sort of the danger the Court finds itself in at this very freighted political moment. This is really the first time, certainly in our modern history maybe the first time in our history, where the ideology of a Supreme Court justice maps completely onto the party of the president who appointed that justice. So the liberals on the Court today were all appointed by Democrats the conservatives were all appointed by Republican presidents. That’s not our historical pattern. You know, Earl Warren was appointed by Dwight Eisenhower. David Souter was appointed by the first President Bush. John Paul Stevens was appointed by Gerald Ford. And so it’s become almost reflexive and very understandable for the public to look at the Court and see it as just a further agent of our political polarization. And that’s pretty tragic. And you know, I’m afraid we’re not going to get out of that, but I just wanted to make that comment to hold in mind that—
ZIRIN: Well, it inspired my book, so I’m very grateful for it.
KRAMER: Well, this is the woman who as optimistic just a few minutes ago. (Laughter.)
We’re going to open up for questions from all of you now. And I want to remind you that the meeting is on the record. Please wait for the microphone to come to you, so everyone can hear. Limit yourself to a question, one question. And if you feel like identifying yourself, that would be helpful too.
Go ahead. Yes, way in the back.
Q: Hi. I’m Kate Kroeger from the Urgent Action Fund for Women’s Human Rights.
And I wonder if you could speak about how the challenges to Roe versus Wade may manifest, and what the likely response would be.
GREENHOUSE: Yeah. So even with Justice Scalia on the Court, there were not five votes to get rid of the right to abortion. So that’s not going to change. What’s very interesting is, of course, the past summer in Whole Woman’s Health against Hellerstedt that Justice Stephen Breyer wrote for the majority that you can’t use fake science to shut down abortion clinics. That was overturning the Texas law. That obviously did not stop the very creative and aggressive moves in the state—Republican-dominated state legislatures to find other ways to curb access to abortion.
So, you know, the question is whether the right to abortion is going to be whittled down to a non-entity, even as it nominally is maintained. And that’s going to—not to just, you know, say what Chuck is always saying—that’s going to come up case by case. But I think the—you know, the case last summer was extremely important in the Supreme Court standing up for actual, real science and real evidence before you can make these claims and shut down abortion clinics. It was a major step, and we’ll see if that holds.
KRAMER: Yes, sir.
Q: Thanks. Dick Tofel from ProPublica.
I’d like to ask Chuck, and others if you’d like to jump in, what do you think the chances are, based on what we know now—assuming we don’t learn anything more important about these people who have been rooted about—what the chances are that the Republicans really would institute the nuclear option if the president chooses Justice Pryor. What the chances are of their sustaining that—Judge Pryor—of their sustaining that? And on the other hand, what the chances are of the Democrats actually sustaining a filibuster if he chooses Judges Gorsuch or Hardiman?
LANE: Well, I may disappoint you by giving a fairly simple answer. I don’t think the Democrats have any chance of stopping any of his nominees, period.
Q: Even Pryor?
LANE: Any of them. Now, the only one they have—and one reason I say that, is look what happened with Rex Tillerson, OK? So you had three guys on the Republican side—Rubio, Graham, and McCain—who don’t like Rex Tillerson and complained about it, and in the end voted for Rex Tillerson. So, notwithstanding the fact that Judge Pryor has actually aroused some opposition on the right—I don’t know how many of you have followed that, but basically he wrote favorably about transgender rights in a certain case and that’s cause for a lot of upset on the right—notwithstanding that, I think people would fall into line at the end of the day because the stakes are just that high.
Now, I don’t want to bore you guys with a whole bunch of amateur psychoanalysis of our friend Chuck Schumer—(laughs)—that would be very dangerous—but he’s got a very—he’s got a very difficult thing to manage right now because there is—as I think Linda indicated—there’s a lot of seething upset at the base of the Democratic Party to make some stand here and prevent this somehow. And he’s—nevertheless, he can count the noses in the Senate. He knows his colleagues very well. And I suspect his view would be, it’s a thing I don’t want to try until I absolutely have no alternative, right? So that’s the drama within the Democratic camp, that I’m—again, as I said before, I’m wracking my brains to come up with a way that it could be solved other than, you know, like some scandal comes out of the woodwork that we don’t know about—and I don’t really see it. I think the Republicans would stick together.
ZIRIN: I would take issue with that. I think if Pryor is the nominee, they probably would filibuster. And unless the nuclear option is invoked—which I doubt would be invoked in that instance—there’s just too much ammunition that the Democrats have against Pryor. They don’t have it against the other two. And I don’t think they’ll filibuster if it’s Gorsuch who’s the presumptive nominee. And I don’t think they’d have it against Hardiman either. But we don’t know what’s going to come out of the woodwork once the fat is in the fire.
KRAMER: Right, but now that we’re speculating—(laughter)—
ZIRIN: Now that we’re speculating—which you told us not to do, but lawyers do it all the time.
KRAMER: This—the question was asked—
GREENHOUSE: Yeah, well there’s a lot of opposition research going on. Has been, you know, since the election. So who knows what might turn up. You know, I basically agree with Chuck. It’s an awfully hard road to stop any of these. I hope—I have a huge respect for Senator Schumer. I think he’s got just about the best political instincts in politics today. So whatever he thinks is the right way to go, I’m inclined to think that’s probably the best choice. Chuck, if you’re listening. (Laughter.) I mean that sincerely. But I—you know, I hope they pick their spots. If it’s one of the non-Pryor nominees I hope it’s not World War III crying wolf, because I don’t think that’s going to be productive.
KRAMER: Yes, sir. Yeah, and then we’ll come down to this—
Q: Thank you. My name is Taisu Nakai (ph). I work for the Asahi Shimbun of Japan.
Looking at the long-term of the polarization of the judiciary, not just at the Supreme Court level but lower courts as well, what do you think happens in the long term when the executive and the judiciary—right now, they probably both will be the same side, but when they end up on the opposing side. And at what point does the executive just say, for instance, where does it say that the Supreme Court has judiciary review? It says nothing in the Constitution. I’m not going to follow that. Do you—what happens then? Do you see something like that happening?
LANE: Didn’t that already happen in 1801, 1803?
GREENHOUSE: No, I mean, I don’t. I think that’s a little apocalyptic, even in the times we’re living in. (Laughter.) And, you know, there are big cycles. And the Court is in a kind of a constant dialogue with the American people. I mean, Richard Nixon ran very successfully against the Warren Court, and brought us the Burger Court. So, you know, the public doesn’t want things to go too far out of whack. And you know, if it gets that bad, I think there’s some sunlight at the end of that tunnel, if we make it there.
LANE: I never thought I’d find myself being the gloomiest one on this panel. I didn’t come in with that intention. But the question, and where I thought you were going with it, the question prompts me to say the following: The problem with our country is every single thing is getting polarized along partisan lines—like, everything. The media, the courts, Congress, but, I mean, the public schools. There are things happening in America today that didn’t used to happen. And we are dividing along party lines in a way that I don’t think has been true of our country since the 1850s.
And so the problem here is that the courts, like every other institution, just get sucked into that same process. And I think that—I wish I could be sort of more optimistic and say, well, you know, the judges are special and they won’t fall into that. But I’ve seen a lot of evidence that that isn’t 100 percent true. And it really will—to bring us back to the Supreme Court—it really will be up to them to draw a line against that kind of partisan polarization in their branch of government, in such a line is ever to be drawn. But I do think that we have to be very frank about the situation of the country. You know, this partisan dynamic is out of control. It’s totally out of control.
And you know, we’re confronting a nomination process—we haven’t ever had a nomination process before with Twitter in it. (Laughter.) And Linda alluded to opposition research. My gosh, I mean, you put the—just those two things together, plus fake news and a lot of other stuff, and it will make, I don’t know, the Clarence Thomas hearing look mild. So it concerns me.
KRAMER: Yeah, the overlay that the opposition research need not be true adds another element to the whole thing.
Q: Andrew Rice from New York Magazine.
I’m sure you all saw the emoluments case that was filed a few days ago, and sure to be the first of many, many cases involving Trump’s business, conflict of interest, and all the unprecedented issues that arise from that. And I guess this calls for a slight bit of speculation. Do you have any sense of if these are going to be issues that you think the Supreme Court is going to end up grappling with? And do we have any indication from, you know, prior decisions of this Court or these justices prior to becoming Supreme Court justices, as to how they might deal with the situation of a president having a sort of a business arm?
GREENHOUSE: I think the Court will throw it out for lack of standing, you know, before you could turn around. I think—I mean my view, just as a citizen, is I think that lawsuit is a distraction. And I don’t see it getting anywhere, actually.
KRAMER: Do either of you disagree? Jim?
ZIRIN: I don’t disagree. I think what we have to bear in mind, however, is that not every case in the federal system—in fact, most of the cases in the federal system—lack an ideological component. There are commercial cases. And Scalia used to say: most of our cases are boring. They’re ERISA cases and cases involving private lawsuits and fish; it was to whether that’s part of evidence in a case, or the destruction of fish is the destruction of a document—things that have nothing to do with the Constitution, have nothing to do with partisanship or ideology. And you see these judges fairly interpreting the issue without any political partisanship whatsoever.
I’d agree with Chuck. Our country is deeply divided and polarized. Media are polarized. Our think tanks are polarized. Our Congress is polarized. And why shouldn’t the Supreme Court be polarized? But not every case is going to reach the Supreme Court. And there’s an awful lot of things that district judges can do and circuit judges can do to resolve issues, such as the ones that have been spoken about, without their reaching the Supreme Court.
KRAMER: Yeah, but you want to remind everyone about the numbers? Sixty-three decisions last year by the Court and then, what, 900,000 federal cases, or something dramatic like that?
LANE: Nine-hundred thousand?
ZIRIN: And it’s fallen down dramatically from what they used to—
GREENHOUSE: Yeah, the Court doesn’t take many cases. But you know, so back to the—when I said it’s a distraction, I suppose, you might say a distraction from what? I mean, it seems to me, what we need—we, as concerned citizens—need to focus on are the policy outcomes, you know, emanating from this White House and not, you know, who’s paying the rack rate at the Trump hotel. I mean, that just doesn’t do it for me. (Laughter.) Maybe I’m missing something, but, you know, I think we need to focus on what really matters here.
KRAMER: OK. I think she’s getting a good rate at one of these hotels. (Laughter.)
Q: Jeff Laurenti.
I wonder if you all could explore for us what the recent trends have been in international law jurisprudence at the Supreme Court. The obligations under treaties that the U.S. is a party to, of the Max Fisher story yesterday about the president’s team putting together an executive order that would make payments of U.S. contributions to the U.N. voluntary—we’ll decide when we want to pay or if we don’t want to pay. We can drop out of U.N. bodies or other international bodies based on whether or not they’ve been too nice to the Palestinians or something. But when you look back, the death penalty consular relations treaty question a decade and a half ago, three decades ago the effort to make illegal the PLO office at the U.N.—where do you see now the Court willing—being willing to stand up in defense of upholding international treaty obligations that have been duly ratified? Or does it seem likely to simply defer to executive management of international relations without asking questions about the legal basis?
GREENHOUSE: So, I mean, this is not—I can’t claim huge expertise, or much expertise, on this. But it seems to me that, of course, most treaties—even ratified treaties—you’re not self-executing. And so in the case that you alluded to, the Vienna Convention case, the Medellín case, the Court said, you know, I mean, Congress didn’t tell us – didn’t give us a rule of decision, so, you know, we’re not deciding. I see a lot of deference being paid to the executive branch.
I mean, one interesting line of cases with, you know, international implications, the alien tort statute case, where—the Kiobel case—where the Court basically said, you know, we’re not going to let you, plaintiff’s bar, you know, invoke this old statute that was passed by the first Congress and use it as a kind of resettlement tool against multinational corporations. And the Court hasn’t said much since then. There’s a case pending now against the Arab bank that, I guess, makes the further claim of can the alien tort statute be used to sue corporations? So you know, there’s a lot of stuff going on, but basically for the internationalists among us, I don’t think we’re going to get answer from the Supreme Court that we’re really going to like.
KRAMER: Yves. Coming this way.
Q: Hi. Yves Istel.
Understandably, the focus has been on what happens to the Scalia seat. How do you see over the next four years if one or more seats become open, and the Republican-leaning—or whatever words you want to use—becomes six to three, do you see a significant change in the views that you’ve expressed about the sort of relative balance that you see in the Court today? In other words, I’d like you to look forward a few years during the four-year term and see if there’s an even bigger problem looming, and where it would show up most.
ZIRIN: Of course, there’s the assumption that the first ones to retire or go are going to be liberals—so-called liberals, because I define them as justices appointed by Democratic presidents, because it’s kind of indisputable. But I think Clarence Thomas is as likely to retire as anyone. Kennedy may well retire, particularly, of course, if his former clerk is confirmed. He may feel comfortable with the type of appointment that Trump makes. And you have to see what the direction of the Court is going to be. So I don’t think it’s a foregone conclusion that the first ones to go are going to be Breyer, Ginsberg, and possibly even Kennedy because of their age. Age is one factor, but health and their personal wishes may be another factor. So I don’t really think that we can visualize what in eight years the Court will look like.
KRAMER: Chuck, do you want—
LANE: Well, just in preparation for this meeting I read a real good article, that a professor from American University’s government department forwarded me, where he goes through in great detail all the cases that went in a, quote, unquote, “liberal,” direction between 1969 and the present that involved Republican appointees deciding a liberal result. I’m sure many of them are familiar to you. And that was a good reality check, because it was a very, very broad, expansive time. Now, of course, Linda has written a book explaining how a lot of that time was spent moving the law to the right. And I accept that point. But I think as we look so far out in the future, as you were suggesting, it’s worth just bearing in mind that what it even means to be a Republican or a conservative is, to put it mildly, in flux right now, and may not be as determinative in cases we can’t even imagine in the future.
Having said that, I go back to my original thought, which was it’s useful to look at that in terms of what a 6-3 Democratic appointee Court might have looked like, because so many things—just to take one good example, Hillary Clinton said in the campaign: I kind of hope the Supreme Court will abolish the death penalty, and then we won’t have to worry about it anymore. One way or another, I think there is a very live chance of that—pardon the unintended pun—a very live—(laughter)—a very live chance that some form of abolition of the death penalty would have occurred. I think that’s now off the table, right? So things like that, I think, are easier to foresee. But, boy, you know, John Roberts is, what, 61, 62 years old? He’s got another 15 years at least, assuming he, knock wood, stays in good health. Who knows how his view of whatever cases are going to be, you know, will develop between now and then. So it’s—
ZIRIN: Well, that’s a key point, and that’s an additional wildcard, because the attitudes and beliefs of justices evolve over the years. I mean, you take Anthony Kennedy, who I think voted with the majority over 90 percent of the time with his career—a swing voter. But 28 times he voted against affirmative action. And in this term, he tipped the balance to vote in favor of diversity in Texas—in the University of Texas. And I think he changed his position. He had previously indicated that he was interested in affirmative action to achieve diversity, and that wouldn’t violate the constitution. So I think the views of justices change over the years, and we can’t possibly visualize how that might happen, or what could happen.
GREENHOUSE: I’m just here to say, Sam Alito is not evolving.
ZIRIN: No, he’s not evolving. (Laughter.) That’s true. That’s true, although in the jury selection case, he did vote for the majority. That tipped the balance. Only Clarence Thomas dissented.
KRAMER: And what do you—what do you think accounts for the evolution? I mean, discussions among colleagues or what? I mean, you mentioned several justices at the beginning who I guess historically were considered disappointments by the presidents who appointed them—Warren, Brennan, I mean, the list goes on. How does it happen?
GREENHOUSE: Yeah. So, well, there’s actually scholarship on this. And it’s not—it’s not uplifting to those of us who would like to see more evolution, which is that it’s true that probably a majority of the Republican-appointed justices sort of in the midcentury period did show some, what the political science people would say, you know, preference shift toward the left in the course of their career. But all of them, if you look closely at their biographies, were—what they had in common was they were not from inside the Beltway.
They were from out there somewhere. I mean, Harry Blackmun from Minnesota had sat on the 8th Circuit. Sandra Day O’Connor had been a judge in Arizona, Kennedy from California, and so on. And you know, you could just see sort of psychologically. You come to Washington in midlife. You have a certain, you know, set of the way you grew up, your sort of circle. And all of a sudden you’re charged with deciding, you know, the great issues of the day. You’re reading, you know, very well-presented briefs in these cases. And it can shake you up a little bit in terms of your self-confidence about your—you know, what you brought with you.
Where it has not happened is those justices who’ve been appointed from the inside players in Washington. I mean, Scalia was one. Clarence Thomas was another. John Roberts is one. Sam Alito I don’t believe has ever cashed a paycheck that wasn’t written by the federal government. (Laughter.) You know, and it’s not going to happen to these people. And presidents are well-aware of this scholarship—or, at least those who advise the presidents are. Now, it’s interesting, of course, on Donald Trump’s list of 20 or 21, some very prominent and highly qualified inside players—like Judge Brett Kavanaugh, of the D.C. Circuit—were missing from that list, because he wanted—he wanted people from out there. But there’s a risk to that. There’s a—you know, historically, anyway. So it was pretty interesting.
LANE: Nixon—excuse me. Nixon said it was because they start getting in with that Georgetown dinner-party set. (Laughter.) And, you know, I’m not endorsing that view, but it is a view.
KRAMER: You also have, what seem to me, a case where outside actors—in this case, the Federalist Society—have taken on outsized influence in the nominating process. I mean, is that something we should be fearful of?
GREENHOUSE: Well, the Federalist Society, I mean, some of my best friends are members of the Federalist Society, you know, is a big tent on the conservative side. I mean, there are social conservatives. There are a lot of libertarian conservatives who really don’t care at all about the social agenda of the religious right and so on. And so, you know, many of the names on the Trump list were names that would have been on the list of any Republican president, I think. You know, some exceptions, but the core of it. So, you know, the fact that these people were endorsed by the Federalist Society doesn’t alarm me. In fact, it would surprise me if that was not the case.
ZIRIN: But the three on the list continue the British system of promoting from the lower federal courts, which is the case on the present Court, with the exception of Kagan. And you wonder whether—and Scalia and Roberts both said maybe there should be greater diversity in terms of geography or in terms of background. Our experience in Hillary Clinton, in your alternative universe, also said she wanted people of a broader experience.
KRAMER: You mean, not from the judiciary?
ZIRIN: Not from the judiciary, and who had gone to Ivy League law schools, as have they all, and who necessarily had spent a lot of professional time in Washington.
KRAMER: OK. Yes, sir. Last question.
Q: Hi, there. Sorry to take the conversation a little bit of a different direction. Jeff Kopp from CNN en Español.
Lately we’ve been talking a lot about sanctuary cities and sanctuary communities. New York City has been—Mayor de Blasio declared New York City a sanctuary city, and the governor has said that he would back him up on that. So I’m wondering, how do you see 10th Amendment issues regarding states’ rights on immigration playing out under a potentially complete Supreme Court?
GREENHOUSE: It’s a really good question. I honestly don’t know the answer. I mean, I know Governor Jerry Brown is really on the forefront of this and, you know, has put the whole state of California on notice that we’re our separate sovereign here. I think it’s a fascinating question, under states’ rights.
LANE: It is a fascinating irony, isn’t it, that that doctrine would be—the progressive left would now adopt that doctrine with such zest. And I have to say, in this case, not being a lawyer but having a rooting—or, not rooting—but a professional interest in it, it does seem like a pretty square clash between a very clear plenary federal authority over immigration and naturalization, and the powers of state and local government. But of course, every sanctuary city may define what sanctuary means in a somewhat different way, number one. And number two, the leverage that the government has—the federal government has through its spending powers may vary according to what each city gets. And so pretty quickly courts could get kind of bogged down in all those particulars.
KRAMER: OK. I want to thank you all. And I just want to—I just want to say that I guess however we get into the definitional weeds about all of these things, the interesting times we already live in are getting a hell of a lot more interesting. (Laughter.) Thank you all for being here. (Applause.)