- I believe that's the
cue for us to begin.
So we'll begin.
I'm Bob Bower.
I know you have programs in front of you,
I'll be very brief with
the introductions here.
On my far left is David Pozen,
who is a professor of law
at Columbia University.
He is an author on any number of topics
in major journals on constitutional law
and has written specifically on something
that will come up in the
discussion here today,
which is constitutional hardball.
He's been a clerk on
the U.S. Supreme Court
and like other of our
panelists, he has had experience
with the Senate Judiciary
Committee quite directly.
Immediately on his
right is Gregg Nunziata,
who is a partner at
Manatt-Phelps in Washington, D.C.
He too, has very significant
Senate Judiciary Committee experience
and with General Counsel
and Senior Domestic Policy
Advisor to Marco Rubio.
On my right, is Kristine Lucius
who is Executive Vice-President for Policy
at the Leadership Conference.
She has many years of experience
with the Senate Judiciary Committee
as a Senior Advisor in these matters.
In fact, the top Legal and
Policy Advisors to Senator Leahy.
And is an expert on judicial
and executive nominations.
And on her right, is Russel Wheeler,
Adjunct Professor at American University's
Washington College of Law
and a fellow at the
Brookings Institution's
Governance Studies program.
He's also the President of
the Governance Institute,
which has a specific interest
in interbranch relations and
their policy implications.
And has served for a number of years,
or did serve for a number of years,
as Deputy Director of the
Federal Judicial Center.
He's published widely in these areas.
The purpose here, for me,
is to stimulate debate,
if not hostilities, among the panelists.
(audience laughs)
Since we're talking about a
broken confirmation process,
I thought we could model dysfunction
right up here at the table,
so you could see how it developed.
In any event, I thought I would begin,
because what we're going to
encourage each of the panelists,
the panelists tonight have agreed,
is everyone takes this conversation
where they think it's
gonna be most productive.
The broad themes we're
going to be looking at
is where do we currently stand right now,
where do the grave
misunderstandings divisions lie
in our understanding of the advice
and consent function of the senate,
what are its sources,
how did this come about?
If, in fact, we are agreed,
that we are in the midst of
some significant division,
misunderstanding, confusion, if you will,
about that function.
How did that come about?
And last but not least, as always,
what is it that we can do about it?
And I thought I would begin,
this is in lieu of an opening statement,
just tossing to each one
of these panelists in turn,
beginning on the left
here with Professor Pozen,
I thought I would begin
by just bringing up here
a few comments that Senator Susan Collins
made on the floor of the senate,
when she delivered her extensive statement
in support of her
decision to vote in favor
of the confirmation of
now-Justice Brett Kavanaugh.
And I want to pick, in particular,
her framing of what she believes,
having been in the senate many times,
having voted on many
Supreme Court nominations,
what she believed her advice
and consent function to be.
I could have picked,
other members obviously
had views expressed over the course
of this most-recent confirmation
hearing, but of course,
the Collins speech was a
somewhat dramatic moment.
Though I think, at that point,
it was know which way she was gonna go,
and she went to some lengths
to lay out, in some detail,
her views, both on that function
and also how she decided
on the fact of this particular
nominee's confirmation,
how she decided to apply the
standard that she articulated.
She takes her cue from
Federalist 76, she says,
And that "The president
has broad discretion,"
that's how she frames
it, broad discretion,
"To consider a nominee's philosophy,
"whereas it is the
senate's duty," she says,
"To focus on the nominee's qualifications,
"as long as that nominee's
philosophy is within,"
and I'm gonna emphasize this,
"The mainstream of judicial thought."
She objects to litmus test,
does not believe that a nominee's personal
and political views are
relevant areas of inquiry,
provided that they can assure her
that they will set those aside and simply,
and judge these cases, set
aside their personal preferences
and judge cases fairly
on the law and constitutional principle.
She gives no consideration, she says,
and does not believe a senator
should give any consideration,
to a president's identity,
who the president in office happens to be,
or to the political party of
the president or the nominee.
Partisan considerations, in
other words, in her view,
shouldn't in any way come into
this decision-making process.
And she closes by noting
that applying that standard,
she voted for all of
George Bush's nominees,
she voted for all Barack Obama's nominees,
and prior to the vote on Brett Kavanaugh,
she voted for the confirmation
of Justice Neil Gorsuch.
That's how she set it out.
I don't think, by the way,
that the way she set it out
is inconsistent with what I understand
a lot of members might
say, maybe not all of them,
but might say about what they
believe the standard to be.
But let me begin by asking
each of the panelists
to say whether they believe
that this is an illuminating,
adequate statement
of what that function is,
that it captures how members
do think about that obligation
and whether it captures it
adequately, to our satisfaction.
And it's an opportunity to
both address that issue,
sort of as a matter of fact,
do you think that's
correct and if you want,
also begin to introduce your views
about what may be the shortcoming in it.
And I'll begin with you Professor Pozen.
- Okay, thanks very much.
I'm honored to be here on
this distinguished panel
and also delighted to reconnect
with the Brennan Center
where I interned over a
decade ago, in my youth.
I disagree with Senator
Collins' statement,
descriptively and normatively.
So I'll say a few words on both.
Descriptively, I think her
representation of this view
that you should just look at
qualifications and temperament
doesn't actually track senate
practice for a long time now,
though it may fairly
track her own practice.
Before President Bush the first,
the rate of senate non-confirmation
of circuit court nominations,
never went above 20%.
That is, 80% or more of
circuit court nominations
got confirmed under all
presidencies, prior to Bush.
The last three presidencies before Trump,
the non-confirmation rate was above 40%.
So, in recent years at least,
clearly the senate has been doing more
than just looking into
qualifications and temperament,
because it's wildly
implausible that 40% plus
of the Clinton, Obama,
and Bush II nominees were unqualified.
So I think our actual practice
is much more ideological
than what Collins suggests.
On the desirability, or
not, of that practice,
I think it's fair and appropriate,
what she says in her statement,
about not being partisan,
not having partisanship
drive your decision
to vote to confirm or
not to confirm a nominee.
The difficulty, of course,
is that in our era,
partisanship has come
to track very closely,
deeply held, ideological views
and political moral views,
so that in a world in which
there's a tight correlation
between partisanship
and judicial philosophy,
you can't separate those two out
and you're often gonna
end up acting in a way
that looks like a partisan manner,
if you're sticking with
your principle view
of how the constitution
should be interpreted.
And since at least 1980,
you can take the story back
to the Nixon Administration,
but since, at least, the
Reagan Administration,
the two major political
parties, as is well known,
have not only polarized in their politics
and in their voting records,
but also in their approach
to the constitution
and constitutional interpretation.
In a nutshell, republicans
have become heavily associated
with the interpretive theory
of originalism with themes
of strict constructionism
and judicial restraint.
And democrats, by and large,
stick to a kind of living
constitutionalist approach,
which takes into account
contemporary needs
and values more explicitly.
There's a lot of complexity
on both sides there.
But there are now,
there's been constitutional
polarization, in other words.
Not just partisan and
political polarization.
And that means that you're gonna
have more and more situations
where democrats are gonna have
a constitutional difference
with the republican
nominee and vice versa.
And finally, I'll just say that in a world
in which judges are nominated
on the basis of their ideology,
that's the world we've been in
since the FDR Administration,
that was really the rise of policy-driven,
overtly ideological selection
from within the White House.
When presidents are doing that
and when the parties have these coherent
and very distinctive
constitutional approaches,
it seems to me, odd,
that you would just take
a qualification or temperament-based
approach to your role.
It strikes me as close to an abdication
of the senate's responsibility
to provide meaningful advice and consent.
So that leads to all kinds
of pathological outcomes,
where you get mutual escalation
and non-confirmation rates that soar.
So I do worry about those dynamics,
but it just seems to me strange
to think that a senator,
with a well-developed constitutional view,
strongly opposed to the
view of the nominee,
and again, that is the new normal,
that's our new equilibrium,
would subside in the face
of that kind of deeply-held
concern about the nominee.
So I don't like what Susan
Collins did at a local level,
as applied to the particular case at hand,
but I also think it's an
unattractive vision she presents.
- Gregg?
- Thank you.
I'm happy to be here as well,
I appreciate this opportunity.
And I actually agree with much
of what Professor Pozen said.
I think that Senator Collins'
speech was extraordinary,
it's worth reading, and in
it she takes great pains
to spell out what tests
she thinks the senate
should apply and what
the various burdens are.
More senators should do that.
I think most senators, frankly,
arrive at a Supreme Court
nomination certainly,
and also likely at
circuit court nominations,
with a decision that's driven
by all the kinds of stuff
that the professor was just talking about.
And then you see a lot of,
kind of, backwards arguing
into justifying the vote
that is rarely credible.
I think Collins' speech
is an accurate reflection of
the approach she has taken.
And it's basically a belief
that senators should
defer to the president
on these constitutional issues,
barring the advice and consent check,
it's just a check maybe on sheer cronyism
or unacceptable, unprepared nominations.
Senator Graham, who's likely
the new Chairman of the
Judiciary Committee,
has also articulated that view
and that's maybe even more
remarkable than Collins,
because he's got, ideologically
he's more conservative
and he's also ideologically
in a judicial sense,
more firmly in kind of a
conservative tradition.
There have been senators,
over time, who had that view,
that elections have consequences,
they should defer to
the president's choice.
It's a defensible view,
I don't think it's commanded
by the constitution
or the Federalist Papers or
any original understanding.
I think the senate is coequal
and the senate should,
senators should apply their
view of the constitution
and what kind of nominees
to the Supreme Court are
consistent with that view.
But I think in the past,
more senators had that.
If you look at the debates
during the Bork hearings,
the senate appears to be aware
that they're applying a
much more ideological test
than they had been in the past.
And there's big, extended
arguments between both sides,
particularly Senator
Hatch, for the republicans,
and then Senator Biden, for the democrats.
And Biden kind of makes the
case in those arguments,
that applying that ideological test
is something that we can do,
but it's kind of in
extraordinary circumstances
and he has all these
factors that he lays out,
why the Bork moment was extraordinary,
the court was narrowly
divided on important issues,
that the White House was
motivated to push the judiciary
in a particular ideological direction.
A lot of the features that
he mentions as extraordinary,
are now kind of just part of the furniture
that we're used to.
I mean this is sort of
always the situation.
So I don't love where we are,
I do think it's kind of unavoidable,
because we have this remarkable
partisan polarization
and judicial philosophy polarization.
I mean it simply doesn't have to be
that if you're a
republican I probably know
what you think about
guns and how you believe
the Second Amendment
should be interpreted.
I mean, those are three separate questions
that maybe a couple generations ago,
your answer might not be
predictive of the other,
to one might not be
predictive of the other two.
I do worry about where we are.
I think we should,
the senators should be more
frank about this division,
rather than kind of resorting
to cheap mischaracterizations of cases,
to score political points.
So democrats might hit republican
judges for some outcome,
where a sympathetic plaintiff loses
and make it sound so cruel and heartless.
Republicans might hit democratic nominees
for letting a criminal off.
As though this person is pro-criminal
rather than having ruled in a
serious procedural question.
We could do with less of that.
I don't know how we'd get there,
but we could do with less of that,
because it doesn't really change
the outcome of these votes.
And the other, kind of just note
I wanna close on my worries,
is not just to this vitriol,
but I don't know how this
functions in the future,
if we start seeing sustained
periods of the White House
and the senate controlled
by different parties.
It's very hard for me to imagine
a Supreme Court nominee
getting confirmed today,
after the Merrick Garland experience,
but I think we would've arrived there,
had that not happened.
It's very hard for a member
of one political party
to vote for the Supreme Court
nominee of the other party.
And just so many of the questions
that divide us sharply
as a nation politically,
are ultimately decided
by the Supreme Court.
And if you care about
whatever your top issue is,
if it's civil rights or abortion or guns,
these are things that
motivate millions of people,
millions of voters,
and to just give away the
question to the other side,
via the Supreme Court,
seems inconceivable to me for a senator.
So I don't know how the system reacts
if we have a sustained period
of one, two, three, vacancies.
- I should mention before
turning to Kristine,
when I was in the White
House, I hear the phrase,
elections have consequences, a great deal,
typically from senators who came up
to both tell me that
elections have consequences
and also to tell me that they were going
to oppose one of the
nominees of the president.
(audience laughs)
Kristine.
- Were they saying their
elections decided one thing,
but Barrack Obama's said another?
- Apparently.
- So Bob I think you're
gonna have to work harder
to get us to disagree.
Because so far--
- I just got started.
(audience laughs)
- Because so far, I think
we're all in agreement
that if the test is what
Susan Collins laid out,
which is deference to the president
and the president gets to
consider ideology of the nominee,
but the senate should not,
I think we're in a real problem area.
I think part of the
reason the Constitution
has two, both political branches,
the two political branches,
both involved in the decision
whether to put someone
on the Supreme Court
or the lower courts,
is because there's supposed
to be a check and a balance.
And Susan Collins, the test she lays out,
first of all, she herself,
was complicit in Merrick
Garland not being supported.
So for her to say that she
supported all of the nominees
of President Obama, that's
just simply not true.
I don't recall her once saying anything
that Merrick Garland
deserved a hearing and a vote
when he was pending for almost
a year to the Supreme Court.
But secondly, I think it's
a lot easier for a senator
to say that they should
defer to the president
when the president is of the same party.
What I found particularly disappointing
and a very difficult to listen to speech,
was that she did not take into account
how extreme this president is
and we know from her comments,
she has had real concerns about
this particular president.
So certainly deference to a president
who is as divisive and as controversial
as the current one we have,
I think was disappointing to many people
who had seen Collins before this moment,
as a potential moderating voice
and moderating influence in her party.
But I think it would be a
mistake to adopt the notion
that somehow the president
should get deference
and be able to look at
ideology and the senate not.
But the other thing I
do want to push back on
is sometimes people talk
about the senate should
only look at qualifications.
I mean, I think they should
look at qualifications
and the minimum
professional qualifications
are not being met by many of the nominees
we're seeing in the last two years.
The ABA, the American Bar Association,
does a professional vet,
which is a minimum professional standard,
it doesn't go into ideology,
of all judicial nominations nominated
to the Article Three Federal Bench,
and they have found several recently,
that are not just not qualified
because they haven't practiced
for more than 12 years,
and many of them have not,
but they have found people
not qualified for bias.
They have found people not
qualified for ethical reasons.
They have found people not
qualified for work ethics.
These are really stunning moments
that in any previous administration,
I believe, the person
would've been withdrawn.
But instead what's happening,
because we've gotten to such a low point
in the the judicial confirmation process
is they just go faster and try
and get the person confirmed
before the ABA report comes out,
or try and get them through
their hearing, at least,
before the ABA recommendation comes out.
And that is something that,
even if you're gonna have
as low a standard as Collins
articulates in this speech,
then she should not be voting
to confirm Steven Grasz
to the, I believe it was
Kansas or Nebraska circuit,
who was found not qualified for bias.
So even with her low
standard of deference,
the president can look at ideology
but the senate should only look
at some narrow views of qualifications,
if that's the standard,
there are several people
who should not have been
confirmed over the last two years.
I think the standard should be higher.
I think people who affiliate
with known hate groups
should not be confirmed to the bench.
People who have clear ideologies
that they are trying to
achieve on the court,
who are clearly political,
I think the senate should
take that into account
and decide whether that
would be a good addition
to the branch that's
supposed to be apolitical.
So I think even her
standard, she's not passing,
but I think all of us so far,
agree that it should not
be that standard, that low.
- Thank you.
Professor Wheeler.
- Well, in a sense you've heard everything
that needs to be said on this.
You just haven't heard everyone
who's here to say it, so.
I don't have much to add to what
the other panelists have said,
and I agree mostly with it.
Several points I think are worth making.
One is that this is not
happening in a vacuum,
this degradation of the
confirmation process,
which you can date it back, I guess,
maybe to the first President Bush,
is just part of our polarized politics
and a congress that has
trouble doing much of anything.
And that shows itself
as well in the debates
over whether judges should be confirmed.
And I should add one other thing.
Professor Pozen mentioned
this 40% confirmation rate,
I suspect that's based on
confirmations during the term
in which the person was nominated.
- I think that's right,
non-confirmation rate.
- Yeah, because we have a
phenomenon now of renominations,
which, back in the Reagan
years, was just unheard of,
but now routinely presidents
renominate individuals
who don't get any action
during the particular term.
I think if we pull this
out a little more broadly,
I think what's going on and
I think it's still going on,
in terms of the district courts,
which in a sense, are the workhorses
of the Federal Judicial System,
I think still what's operating
is senators of both parties
are largely deferring to the president.
The number of nay votes
for most of even President
Trump's district nominations,
which the senate has not
been pushing, I should add,
the number of nay votes,
generally has been relatively negligible.
I think the change we're seeing
is in the courts of appeals,
where very few of Trump's
nominees get confirmed
with less that 40 or so nay votes,
and there's a variety of reasons for that.
And Kristine referred to some of them.
That just illustrates that we're in,
I wouldn't say a different era,
but an era that's just
been more intensified,
because we have the
example of circuit judges
who are being confirmed for one reason,
and that is because the
party of the president
is also the party that
controls the senate,
and they're just moving
those things through
with little objections.
I mean there's only one
nominee who was withdrawn,
in all the 40 or so that Trump has put up.
Then on the Supreme court,
that's what most of the focus has been on.
And there we have
relatively rare instances,
but we see what's
happening there is again,
just very different
than what was occurring,
say 40 or 50 years ago,
before Thurgood Marshall's nomination,
the standard way to confirm
a Supreme Court justice
was by a voice vote.
There haven't been any voice
votes since Thurgood Marshall,
so this process has been
intensifying all along.
Whether it's a good thing or a bad thing
is difficult to say.
You could say we see a
breakdown of the norms of comody
and bipartisanship, which
manage to staff the courts.
Or you could say the senate's
finally reasserting its role
to actually participate in the process.
One final thing, the senate has confirmed,
I think, 29 circuit
judges so far under Trump.
And 29 out of not many more
that have been nominated so far,
it's confirmed about half
of the district nominees.
And the district nominees,
in a sense, that's where the,
in many places, that's
where the real crunch comes.
Because we can talk all
we want about ideology
and the policy direction of the courts,
but it's on the district level
that people are either getting
justice or they aren't.
And when you have vacancy
rates in the district court
now upward of 111 and there's
a lot of reasons for that.
A lot of it has to do
with the failure to act
on Obama nominees in the
final two years of his term.
When we have vacancy rates that high,
that's really pinching people
who just can't get their cases heard,
especially civil litigants
and that's an aspect of this process
we pay too little attention to.
In Texas, for example,
with all the vacancies
in the Texas District Courts
and the Speedy Trial Act Preference
for trying criminal cases,
civil litigants are just
left out in the cold.
And thinking all that
talk about the standards
for approving Supreme Court justices,
we aught to keep in mind also,
that the whole Federal Judiciary
is an object of attention
and deserves more attention.
- Gregg did you have--
- I think we would do really well
to think about district courts
and appellate courts as
two separate categories.
The job of district court
is both more vital every day
to Americans than the others
and less ideological by nature.
And that's something that
the partisan fights over district judges
that have escalated in recent years,
I think, is really regrettable.
I just wanted to follow up
on a couple of disagreements
with Kristine, too.
I think Collins actually did
call for a vote on Garland.
The objection may be she
didn't actually fight for one,
but she did say Garland should get a vote,
for what that's worth.
And on the ABA, the ABA is just a subject
of a big disagreement
between the right and left.
Generally, I'm on the right side of this.
Almost every republican in Washington
used the ABA as an
ideological organization.
I'm sympathetic to that.
Beyond that, I think
their professional review
is clubby, insular, and
bad for the process.
So I just, I'm not a fan, I don't think--
- But does it trouble you when
they find evidence of bias,
when they're talking with
all the local lawyers
who work with potential nominees?
- It troubles me because
they don't tell you any
of the evidence they're relying on,
it's whisper campaigns in local bars.
I just, I've not been
convinced by their reviews.
In terms of, in the
past from both parties.
On top of that, one thing that I will say
that maybe troubles, I mean I
can agree with you on a bit,
on qualifications of some
of the Trump nominees.
I think by and large,
they've been very qualified,
I've been happy.
But there's been a few
nominations that I wouldn't make
and I think a lot of that
is driven by something
which Professor Pozen and I
were talking about earlier,
was this extreme focus on youth
and getting the youngest
people possible on the bench,
because it's a lifetime job.
And you want that person
to either serve in this
job as long as possible
or be around for a
promotion to a higher court.
I think, in many cases,
I just don't think
someone in their early 30s
is ready to be a district court judge.
Youth on the appellate
benches, may be easier,
a very smart law student might be able
to do a job of an appellate judge,
but a district court judge, no seriously,
district court judge requires, I think,
gravity and experience and the ability
to manage a courtroom and deal
with witnesses and litigants
in a way that five years of law practice
does not prepare you to do.
So I think that's an unfortunate aspect
of this process right now.
- Can I just ask the panelists to,
I'm gonna push a little bit
on the ABA's role here for a second.
First of all, I wouldn't say
that I share the strongest objection
that Gregg just articulated,
but there's less space
between him as a republican
and me as a democrat on the ABA's role,
than you might think.
I definitely have some
sympathy for the view
that it's clubby and I also
wonder if we're not going to,
it currently operates very
much in conjunction with
or in support of, at
least for the presidents,
unlike, say, George Bush,
who had ABA review prior
to nominating the judge.
It tends to sure-up
the presidential's claim
to deference, doesn't it?
Because then the presidents say,
well I can't imagine why in the world
you would turn down this nominee
who's been rated well-qualified
by the American Bar Association.
If we were to see a frank acknowledgement
that the deference
standard has been, at best,
overstated and perhaps is obsolete,
wouldn't that suggest that the ABA role
aught to be at least minimized, if not,
potentially an argument
made that it shouldn't have
the visible role that
it's had in the past?
- I don't doubt that it's clubby.
It is clubby, it tends to
favor law firm lawyers,
and it frankly tends
to favor white lawyers.
So you know, I think there have been
some important studies
about some bias there,
but it is incredibly unusual
for them to vote unanimously not qualified
for several judges on the kinds of issues
that several Trump
nominees have had recently.
Now you're right that in
Clinton Administration
and the Obama Administration
the ABA process happened
before someone was publicly nominated.
So that if you, as White
House counsel got a bad report
that this person's found unanimously
not qualified for work ethic,
I would imagine that would factor
into the decision whether
to nominate that person.
Whereas President Bush and
President Trump have that process
happening after the
person has been nominated.
So it's a lot tougher for that person,
then, to withdraw without looking
like they're validating the assessment.
So if we are gonna talk about ideal norms,
it is better to have that process earlier,
or if we could come up
with a different person
who would do, a different
entity that would do
a minimum threshold
professionalism, reputation check.
But republicans cling to
the rating if they like it
and they ignore it if it's
clearly disqualifying.
And that's the biggest problem I have.
- When I was Chief Nominations Counsel,
when Senator Specter was Chairman,
and we had asked the,
maybe I had a couple
of unqualified ratings
on two nominees at the time,
I think one was a circuit
court in the south
and one was an African-American
woman who was nominated
to be a district court
judge in Connecticut,
and their top-lying conclusions
were concerning and we wanted to know why.
Can you share with us this information,
I forgot what it was, if it
was bias or lack of experience,
or lack of professionalism,
and we said can you tell us
the basis of this decision,
so the senate can make up its mind.
They said, no, no, no, no,
it's a confidential process,
you can't peer into what we
do, it has to be confidential.
We said, well, we get
the FBI files on people
with very sensitive information
and we handle it like it's top secret,
can we do it in that way?
So just the senate can
know, if this is true,
we should be concerned
and their answer was,
no, you have to trust us.
And I just don't think the
ABA has earned that trust,
or that any outside organization
deserves that trust.
- So let me just, before we sort of
move away from the question of deference,
I just want to ask the question
of any panelist who'd
like to weigh in on it.
At some point, this way, as you say,
whether in the guise of
elections have consequences
or whatever, the deference
standard was upheld.
And now, there's obviously,
it seems on this panel,
agreement that it's not
the correct standard.
Some people have attributed this
to polarized politics generally,
or to shocks to the system,
like for example, republicans would say,
or the way the democrats
treated Robert Bork.
And the Bork nomination was the beginning
of the spiraling downward
into the arrangement we
currently have, or excuse me,
not the arrangement, because
it's not an arrangement,
but the situation we currently have,
in which deference is clearly not paid,
even if lip service is paid to
it and it's a power struggle.
Professor Wheeler, I guess
I'll turn to you first,
because I know that you've
expressed in some of our earlier,
sort of preparations, for the panel,
that you don't buy the historical analysis
that there was a sort of historical shock
to the system and Bork changed everything.
And I thought it might be illuminating
to hear why you think that's the case.
- Well as a general principle,
I tend to be skeptical
of any argument that but
for a certain incident,
the landscape would look a lot different.
I mean, but for the Bork nomination,
the Senate Judiciary Committee
would be sitting around
singing Kumbaya to each other.
(audience laughs)
That's, well as I said earlier,
what we're seeing is a slow accretion,
a change in norms, a change in practices,
due to the polarization in
all aspects of our politics.
The Bork nomination, which was
ugly and all sorts of things,
was perhaps, a representation
of that change,
a particularly vivid
representation of that change,
but I don't think had Ronald Reagan
nominated Anthony Kennedy
at the start of things,
that the situation today
would be much different.
He nominated Bork and then, of course,
he lost the Ginsburg non-nomination
and finally nominated Kennedy,
who got confirmed fairly quickly.
But well, I'll just
repeat what I said before,
just because the Bork
thing was contentious,
doesn't mean that it caused the contention
we're dealing with now.
If it did anything, it might
have been a slight catalyst,
but I don't think it can
be valued as anything more.
- Any different views from
anybody else in the panel?
We're not looking to
signal historical events.
- I think it's hard to tease out
the causal significance of Bork.
It was, as Professor
Wheeler stressed, I think,
symptom and cause of the
escalation that would follow.
But I guess I agree with the bottom line,
that whatever had happened with Bork,
likely, we would've seen
this pattern of both sides
becoming less likely to confirm
the other side's nominees,
just as a function of
increasing polarization.
There's a great deal of
political science evidence
that the parties started
to polarize in a big way
around roughly 1980.
The polarization has been asymmetric,
in the sense that republicans
have moved further
to the right than democrats
have moved to the left.
But under those background conditions,
you were, I think, gonna
see mutual escalation
of hardball in judicial
confirmation politics.
I do think that in judicial
confirmation politics,
as in other areas of
congressional practice,
republicans have played
harder hardball on bounds,
but the discrepancy
between republican hardball
and democratic hardball,
I actually think has been
less when it comes to judges
than in other areas like
government shutdown politics
or debt-ceiling brinkmanship,
issues around voting and enfranchisement.
So I think it has been a
pattern of mutual escalation.
You have seen senate democrats
being the aggressors in certain areas,
innovating with, say, the filibusters
of the second President Bush's
first term circuit court
nominees, like Miguel Estrada,
Senator Harry Reid pioneering kind of
proforma gavel in, gavel out sessions
to block some nominees
of the second Bush term.
And republicans have done a lot of things
that I could characterize as horrible,
most obviously and recently
the Merrick Garland,
refusal to give him a consideration.
But anyway, I do see us as flowing
out of the background conditions
of increasing polarization
and asymmetric polarization.
And I just might add
that given the consensus
that was developing on the panel,
you can see the bind we're in,
because everyone seemed to say,
senators shouldn't be doormats, right,
they have a meaningful,
constitutional role to play
in reviewing judicial nominees,
particularly Supreme Court nominees,
given that Supreme Court is
a kind of super-legislature
that touches on so many
issues Americans care about.
And therefore, as non-doormats,
senators should oppose
nominees whose jurisprudence,
they think, would deeply
disserve the country
and the constitution,
and given polarization,
that's gonna happen with
greater and greater frequency
across the parties, that kind of belief.
And I'll go further and say,
and senators will oppose those nominees.
They may do it through
a sublimated language
of qualifications and a
technocratic language of,
like the ABA's, when really their concerns
are deeper and more
about the jurisprudence.
So and given that polarization
and given divided government
that we're often gonna have,
we've reached a point of impasse,
where we really have profound dysfunction
in how the confirmation process
is likely to play out in
the foreseeable future.
So I'm happy to talk
about where we might go,
but I just wanna mark that
analysis, the diagnosis,
provided by pretty much
everyone in the panel,
suggests a truly pathological
equilibrium that we're now at.
- Can I just add that,
I think there's a big,
I can't point to one area,
one example in the past,
that I think started it all,
but I think there's a
really big difference
between a fight, a
transparent and public fight
over where a nominee wants to take the law
or his or her qualifications,
or his or her fitness,
to be an impartial judge,
versus the nontransparent,
kind of systemic power
plays that we've seen.
So I would put the Bork
fight in that first bucket,
which is, there was a
good public discussion,
more people got to
understand who this man was,
what role he played in the
Saturday Night Massacre,
what he had written about where
he wanted to take the law.
And it was clear he had a real agenda,
was not just going to sit dispassionately.
And I think both Kennedy's
Borks America speech,
but also the hearings, were
a real public examination
of what that meant.
Put that in the first bucket.
In the second bucket though,
you have people like Chairman Hatch,
who, in a nontransparent way,
stopped more than 60 Clinton nominees
from even getting a hearing,
even seeing the light of day.
And to me, those are much more
the power plays that don't
get enough attention.
Elena Kagan was one of them.
Elena Kagan was nominated
to the D.C. Circuit,
never got a hearing, never
got a committee vote,
obviously never got a floor vote.
Luckily for her, it worked out just fine,
in a later administration.
But the point is,
there are these systemic not
on the nominee's merit fights,
which I think don't get enough attention,
but have been more
impactful than the handful
of Bush nominees who were filibustered
to the circuit courts.
I mean we're talking
about 12 to 15 of those,
but we're talking about more than 60
in the nontransparent, the
chairman just never scheduled
for a hearing, never advanced nominees.
And blue slips can fall into one
or two of those two buckets,
but my point is that I think
there are public moments
where people are actually
paying attention,
that tends to only be the Supreme Court,
but the real power plays
are these not based
on an individual nominee's fitness,
they are based just on the struggles.
So refusing to move Obama
nominees for the last two years
of his presidency
because Chairman Grassley
had gotten the gavel and
Mitch McConnell wanted
to hold open vacancies
for the next president.
Whether that was Supreme Court,
but it was all on the way down.
I mean Chairman Grassley held hearings
for five circuit court nominees
in one month last year.
That is the same number
of circuit court nominees
who got a hearing in the last two years
of Obama's term in office.
Right, so it's those things
that get very little attention,
but that's where I see the power plays
and frankly, republicans
just much more aggressive
in that power play, is not the fight
over an individual's fitness,
which is out in the public,
public hearings, discussion about it,
frankly, want more people
to care about those things.
But there are these
behind-the-scenes systemic things
that don't get enough attention,
but are really corrosive.
- I think it's really, I think
it's completely a good point
that we should think about these things
in different categories.
I just wanna point out,
as the republican up here,
that this is not a partisan problem.
I don't think republicans
have been more aggressive
in this category.
The Deputy Attorney General
of the United States
is not on the Fourth Circuit,
because the democratic
senators from Maryland
said he was just too
good of a U.S. attorney
and they wouldn't allow
him to have a hearing
for the Fourth Circuit,
no hearing, no vote.
With senators who conceded
that he was a great person.
Peter Keisler, who was
Acting Attorney General
in the Bush Administration,
he's getting great press today
for taking a stand against
the Trump Administration,
is not on the D.C. Circuit
because he didn't get a hearing or process
from Senator Leahy in the last two years
of the Bush Administration.
This stuff happens a lot.
I don't have the stats
on who does it more,
I suspect it's pretty even.
Maybe the tramlines
are just getting worse.
I agree that it's unfortunate,
I don't know how to handle the problem.
- Just one thing.
I think that's true, you can
pick all sorts of examples
of what's, some people
would say unfair treatment.
What strikes me though,
are the bigger changes,
which suggest that both parties
are giving very little
consideration to what comes next.
The democrats ended the
filibuster for circuit
and district court nominees
and are now stuck with that.
And of course, more recently,
applied to Supreme Court.
Are now just stuck with that change.
Now I think they had good reason
to cut back on the filibuster,
we can go into that if you want,
but there's very little
consideration anymore
of what happens next.
And then the other
example is really clear.
Basically the republican senate
in 2015, '16, shut down
the nomination process.
There was Merrick Garland
and there was Garland 2.0.
18 district judges,
two circuit judges
confirmed in that period.
Which is very different than
lamed up senates under Reagan,
Clinton, George W. Bush
in the final two years of
their eight-year terms.
What now everybody's wrestling with is,
what happens when the democrats
are in control of the senate
and the republicans are in
control of the White House.
I'll tell you what's gonna happen,
there are not gonna be any confirmations,
it's just gonna stop.
But by doing what they did,
with all due deference to
McConnell and Grassley,
doing what they did, they
just set themselves up
for a situation in which
payback comes along.
And it just further
deteriorates the process
and I don't know what's
gonna fix it, I gotta say.
- So this is all a one-way ratchet,
it's just about who uses a
certain tool first, right.
I mean when the democrats
started filibustering,
President Bush's judges,
that guaranteed that republicans
would start filibustering
President Obama's judges
and there's just, we can talk about
what kind of system we'd like,
but it's very hard to get
a member of either party
to believe that refraining from some tool
will earn you good will
from the opposite party,
and they will also refrain
from using that tool,
when it advantages them.
It's hard to do that.
I worked for a while for Senator
Thune, who's now the whip
and he's maybe the only
senator who ever got elected
largely over nominations debates
and particularly the
issue of the filibusters.
And he too, found
himself eventually voting
for filibusters of Obama judges,
under, essentially, this argument.
He may not have liked it,
he may have thought it was
wrong that democrats started it,
but that's where we are now
and you can't turn the dial back.
- Yes, I wanna turn now to the reform.
The question, what you do about all this,
because as Professor Pozen
said, "What happens next?"
Before I do, I did wanna
make one observation,
which is that we've been
drawing distinctions here
between Supreme Court and
appellate nominations on one hand,
and district court
nominations on the other,
and I think that's particularly important
when you talk about what role
the senate thinks it has.
In my experience, senators
believed that they had a major,
if not overwhelming stake in
the district court nominations
and a say in those nominations.
And frequently, they will
not move on any nomination
they themselves have not dictated,
whether it's emerged from some sort
of sorting out process within the state,
or whether it's simply an
agreement within the delegation,
or sometimes, even worse, nothing happens
because the delegation cannot agree
and then each side is
yelling at the White House
for not getting the participants
to the dispute to the combat, their wish.
And some of that proprietary behavior,
on the part of senators,
has started to leech into
the appellate court field.
I certainly saw in the White House,
members who were starting
to make the same noises
about the imperatives of having
their political interests respected
in the appellate court nominations,
much like I heard it in
the district court sphere.
So I just wanted to mention that,
because there's another
institutional struggle there as well.
- Can I just mention on that?
Senator Grassley completely changed
the blue slip rules for
circuit court nominees.
He's now moved circuit court nominee
after circuit court nominee
over the objection of
both home state senators.
- That's correct.
- So that, even if it was
starting to, in your words,
creep into the appellate
level, that's gone now,
because Senator Grassley,
although he abided by
blue slip restrictions
of not getting hearings
when Obama was president,
he completely change course,
once Trump took office.
- And I'll just say, that's true.
I think it's possible that
respecting the blue slip,
the blue slip process may come back
in some modified form into vote,
just because the political interests
on the part of members are
so powerful, but we'll see.
And certainly at the appellate
court level it's in peril.
By the way, blue slip referring to,
if any home state senator
says, hey, that's my call,
they just won't, so
called return blue slip
and the nomination will not go forward,
if that process is respected
by the leadership of the senate.
And that's been laid aside,
as Kristine just said.
Let's go to reform.
I'm gonna start on the
left with Professor Pozen.
I'd like you to talk a little bit about
what are the different ways
that we break the stalemate,
what are the avenues?
And then go through panelist by panelist,
what thought do you have,
if this current arrangement
is just fundamentally unsustainable,
but we're operating in
a polarized environment,
which makes the path to a
solution seem very unclear,
where might we go?
- Thanks, so there are two kind
of pie in the sky solutions
that seem to be in circulation,
and I think they're related and
I have a preference for one.
So the first way out of the stalemate
might be to ratchet up
hardball even further
and engage in court packing
at a time when a party,
I'm picking particularly
the democratic party,
had sufficient power in
congress and held the presidency
and could do that.
So there have been a lot
of calls for court packing,
probably everyone in this room
has hear some of those calls
since the Kavenaugh confirmation.
I'm sympathetic to the impulse,
as Kristine says, it's
a very plausible story
that there's been harder hardball
on the republican side in recent years
and the Garland seat being the
most obvious recent example.
But more generally, a
majority of the Supreme Court
has been appointed by
a republican president,
a majority of the
justices, since May 1969.
We're about to hit 50
years of the Supreme Court
having a majority of
the justices appointed
by a republican president.
In a period in which there
have been five democratic
presidential terms served,
the senate has been
controlled by democrats
more than half of that period.
Democratic presidential candidates
run a majority plurality
of the presidential vote in six
of the last seven elections.
I could go on, there's a profound mismatch
between the ideological
and partisan composition
of the court and the actual
politics of the country
and democrats have been on the
losing end of that for years.
So it's a dismaying situation situation,
if you identify as a democrat.
Court packing, however,
this is the proposition
that should democrats take control
of congress and the presidency in 2020,
they would add two new
seats to the Supreme Court
and fill them, of course,
with democratic justices
and in this way, rectify this imbalance.
But as Gregg was suggesting,
once a tool is used,
it can be hard to contain it.
Court packing, of course,
could be used by the other
side in a future period.
It comes with a bit of a historical taint,
given the failure of
FDR's effort in the 1930s.
It is worrisome from a judicial
independence perspective.
It's a dangerous game
to play, court packing.
Although again, I strongly sympathize
with the impulse here.
So that's like taking hardball further,
that's one way out of our impasse,
at least with regard to Supreme Court.
The other, kind of opposed way,
which I've called in some writing,
the anti-hardball solution,
would be to change
the judicial nomination system altogether,
in a way that's meant to
deescalate the politics.
What would that possibly look like?
I think it would look like
what most of the rest of the world does,
which is not life tenure
for Supreme Court justices,
which creates all kinds of bad dynamics.
Justices get to time
their own retirements,
so that a sympathetic president
can appoint their successor,
there's incentive to
appoint really young judges
and justices, 'cause
you want them to stay on
as long as possible,
there's just arbitrariness.
You know Jimmy Carter, not
getting one Supreme Court pick
in his presidency, which
is still a disaster
we're living with for democrats,
and that was just the
bad luck of the draw.
And the fact that someone
has life tenure, of course,
just increases the stakes of
any given confirmation fight
and makes it this blood battle
that we've been describing.
So there are a lot of proposals
that have been out there
for a long time by academics
on the right and the left.
A common one would have the
justices get 18-year terms.
Each president serving a four year term
would get two picks and then to comport
with the constitution's
guarantee that you hold your job
as an Article Three judge
during good behavior,
you wouldn't get kicked off
the bench after 18 years,
you'd transition into some
sort of senior status.
There are a lot of different
variants on this proposal.
There is a debate about
whether it would be consistent
with the good behavior clause
of Article Three, Section One
and also with the appointments clause,
you know, if you're transitioning
off the Supreme Court
where you need a separate
appointment from the president
or not is a tough constitutional question,
but it's at least plausible that a statute
could be designed consistent
with those two constitutional provisions
that would move us away from life tenure,
toward a fixed term on the Supreme Court.
And that would, I think,
lower the temperature on
a lot of these debates
and potentially get us
to a healthier place.
Okay, last quick comment is, of course,
how would we ever get there?
Given our fractious politics,
would we ever get to this kind
of good government solution,
which I do think a designer
would opt for in the first instance.
I don't think anyone would
choose our life tenure system,
if they were designing
a judicial confirmation
process from scratch.
And evidence of that is
that the rest of the world
doesn't do it, they've learned
a negative lesson from us.
Okay, so how do we get there?
Well there, I think, court packing
in a kind of paradoxical
way, may come back in.
It may be that there has to
be a credible enough threat
of the hardball option of court packing
to get both sides to the bargaining table
and actually get any
momentum around these bills,
which have been out there for years
to move to 18-year terms
or some variant thereon.
So I think the best case for court packing
is if it could change
the bargaining dynamics
around breaking out of our
current system altogether.
In any given period,
whoever controls power doesn't want
to change the procedural status quo,
but if republicans really
feared that democrats
were rising and might
actually pack the court,
maybe there'd be the possibility
of a deal to be struck.
And by the way, you could phase this in,
the 18-year proposal, so it
doesn't take effect immediately,
in case there were concerns about that,
a so-called sunrise approach.
So have it take effect in a future period,
in which we can't know
who the president will be.
So it's really not a question of design,
again, these kind of well
thought out proposals
have been around for a long time,
it's how could we ever get the politics
to accommodate this seeming on the wall
and I wonder if court packing rhetoric,
court packing threats
has a role to play there.
Much as I worry about court packing.
- Gregg?
- Thank you.
That's really thoughtful, as usual.
Just a couple quick notes
on what the professor said.
First, it's true that republicans
had the benefit of the calendar
and appointed more Supreme Court justices
over the last 50 years.
Republicans have also been much less lucky
in having their nominees
perform as they've hoped.
As things go forward.
I can't think of a high-profile,
ideologically divisive case
in which a democratic
nominee disappointed the left
that's occurred since
maybe Roe versus Wade.
And this has happened a
lot on the republican side.
Just sort of interesting,
we could speculate why.
No, the rest of the world
doesn't model their judiciary
on ours or their selection process,
remarkably, neither do the states.
New Jersey is the only state
that follows the federal model
out of all 50.
I don't know that that's definitive.
I mean, I think our fellow judiciary
is actually pretty impressive
and maybe more impressive
than a lot of the state
and foreign judiciaries,
but that is what it is.
On the proposal of terms for the justices,
I'm open to it.
I'm not sure that I'm
convinced that it does more
than take down the temperature a notch.
I don't know if it's transformative.
I think that, fundamentally,
the problem still is
that the federal government does too much
and the Supreme Court is too,
or the judiciary is involved
in too many areas that really should
be resolved by the political process.
And so long as that's true,
I think these fights are gonna be ugly.
Just maybe, better scheduled.
Which points to a couple
of things I might say.
One, I do think it would be helpful
to cleave out the district courts
and the senate could have some rules
that would have guaranteed
judicial court nominees
would move on a better calendar
and get votes more quickly.
That, I think, would be helpful,
just to litigants in our country.
But to solving the Supreme Court problem,
one other idea that's out there
that some on the left and
the right have talked about,
which is, I'm not necessary endorsing,
but just something to think about,
is jurisdiction stripping.
Is the right and the left coming together
and talking about areas
the court's involved with
that they don't like
and the courts playing a
kind of majoritarian role
and you compare issues like
this on the left and the right
and come to agreements that we're gonna,
the court's not gonna be the
last word on abortion anymore,
it's also not gonna be the
last word on campaign finance.
Those are probably not
equally weighted issues,
but this sort of idea.
And that's starting to bubble
up in the academic world now
and it could be something
that becomes part
of our political conversation.
I mean, again, if the real problem
is that we're just so
divided on these issues
that the court is involved with,
maybe take the court out of that.
They really are a small
percentage of cases
that the Supreme Court
rules on every year.
- Kristine?
- Wow, that scared me.
Jurisdiction stripping, you know,
the history of it in this country,
at least the most recent
jurisdiction stripping attempts
in the senate, I remember Senator Leahy
often told me the story
about how it's one of the few things
that he and Barry Goldwater
agreed on, full stop,
was fighting Jesse Helms
and Strom Thurman who tried
to strip court jurisdiction
from desegregating schools.
So it's got a really ugly history
and so the notion that
someone's civil rights
shouldn't be determined
by an independent court,
but instead, should just be determined
in the political branches.
I think that's a little, I think that's a,
well, that makes me nervous.
- It's a conversation that's out there,
so I was just pointing to it.
- The selection process needs to be fixed.
So I mean, the pre-nomination process.
So one thing I will say
is I think it's gonna get
worse before it gets better.
And maybe we're headed
to a Watergate situation
in our democracy, we are clearly headed
to a Mueller versus Whitaker crisis.
And maybe in the wake of that crisis,
there will be some rethinking
about the importance of
protecting our democracies
and importance of
protecting our institutions,
especially ones that hold accountable
a president who tries
to tear them all down.
So I think it's, frankly,
gonna get worse before it gets better.
And there will need to
be a reform movement
that isn't just looking at the courts,
but is, instead, looking at all
the democracy-preserving things
that serve as a check on
an individual president.
So you might see those types of things,
but I really think the selection process
could use some reforming.
So to the extent that it's senators
choosing their college
roommate, that's a problem.
If there were better in-state,
closer to the communities commissions,
and some states do have commissions,
Wisconsin long had one that
was a bipartisan commission
and it recently got hijacked
and now it doesn't serve
the role that it served
for all the years that Senator Feingold
and Senator Cole abided by,
during the Bush Administration
and the Obama Administration.
But you could have better
process so people have more faith
that, at least for
district court nominees,
that you are really getting
someone who is of the state,
is immoderate, is not trying
to bring a political agenda
to the bench, then that might be
a way to bring the temperature down.
But that will only work
if senators recognize their
institutional interests.
And that's what blue slips were.
It was senators realizing
that if I let President Obama run over me,
who else around here in the senate
can I get to fight on my side,
that might be of his same
party, that could influence it?
So the blue slip,
the demanding that home state senators
have a very active role,
especially in the district court level,
had a lot to do with the
senate asserting itself,
its institutional role.
That is gone, over the last two years
that has been eviscerated
by Senator Grassley.
Maybe if Lindsey Graham
takes over the gavel,
he will re-implement that.
But it really is the Chair of
the Senate Judiciary Committee
who could dial down the temperature,
could help by re-instituting that,
so that there wasn't as much fighting
at least at the district court level.
- Professor Wheeler?
- I am reminded of an observation
of the former dean of this
law school, Arthur Vanderbilt,
later the Chief Justice
of New Jersey, who said,
"Judicial reform is no
sport for the short-winded."
(audience laughs)
And you think back...
Well, my bottom line is,
I don't think this
thing is gonna get fixed
until both parties realize
it's in their interest
that they're more damaged by the situation
than they are benefiting from it.
And I don't think we're anywhere close
to that situation yet.
I think, for example,
shortly after the Civil War,
it was pretty obvious that
the federal judicial system
was not operating in any
sort of a decent way.
You had mandatory jurisdiction
in the Supreme Court,
no intermediate courts of appeals,
the district courts, which
were courts of last resort,
in more ways than one,
and a Supreme Court that
was heavily backlogged.
It took 25 years to fix that,
even though everybody realized
that something had to be done.
But there were interests
operating underneath the surface,
that just prevented
anything from happening.
I think the same thing is true here.
I'm intrigued by many of the suggestions
that were just made.
I don't think, by the way,
that these vetting committees,
I've looked at them and
I can't find any impact
that they have on time denomination
or quality of nomination, but
that's a different matter.
But some of these fundamental
changes, for example,
the suggestion that we
threaten term limits
as a way of encouraging just
a toning down of the process,
that might work, but I
don't think, as I said,
I just don't think anything's gonna work
until both parties look at this and say,
we just can't keep on going like this,
it's just doing too much damage to us
in all sorts of ways.
Put aside the public
interests, our own interests,
as republicans and democrats,
we just don't perceive
this as positive anymore.
And I don think we're
anywhere close to that.
On that happy note.
(audience laughs)
- Yes.
So the panel has not been
hostile, it's been gloomy.
(audience laughs)
We'll go to, I think
questions at this point.
And I think, is there a microphone?
Yeah, there are microphones on both sides.
- [Woman] Yes, we have
microphones on both Sides
for anyone who would
like to start to line up.
- [Audience Member] Hi, I think
it was Mr. Nunziata who said
that you thought that a
lot of judicial decisions
should be left to political process
rather than being
decided in the judiciary.
I, and a generation of
people I grew up with,
went to law school because
of Thurgood Marshall
and Brown versus Board of Education.
I'm from Baltimore, Thurgood Marshall
lived in my neighborhood, I knew him.
And I worked at the NAACP
Legal Defense Fund one summer
and he came up, took us out to lunch,
and just riddled us with
stories about appearing
before district court judges
in Alabama and Mississippi.
But he told us that the one
thing that he always knew,
was that if he got to Washington somehow,
what happened in the Court of Appeals
in Arkansas or Atlanta
didn't matter anymore.
And he did this when he was arguing
and not when he was sitting.
So I think, until we actually get to...
Do you think that the problem we're having
is more that we've become a
divided country, politically?
People I was in law school with told me
that they predicted a day
when the federal society
would actually get to a
point of sending a president
Court of Appeals nominees
in their 30s and 40s,
who had written a lot of things,
who you could not predict,
you could predict, would
not probably change
as they got older and I think
that's where we are right now.
But the question is,
do you think that you
can fix the judiciary?
When this constitution was drafted,
no one thought that a lifetime appointment
didn't mean 40 years on the Supreme Court
or 40 years on the circuit court,
it meant a person was probably going
to not be around that long.
But now we're looking at
people who have been asked,
how do you feel about gun control,
how do you feel about Roe,
when they're 40 years old,
and that's the person
that you want nominated,
because you want that to go on forever,
even after we're gone.
So can we fix this without
changing us as a country?
Thank you.
- Thank you.
I'm pessimistic about all this, right.
Yes I think a lot of these problems stem
from how divided we are as a
country on a range of issues
and I think there are other
systemic problems here,
such as, I think, congress
retreating from its role,
and deferring to the courts far too often.
So I don't have a solution.
And I wasn't suggesting
that jurisdiction
stripping is the solution,
I was suggesting that it's something
that's going to become more and more
a part of the conversation,
particularly if we do have a judiciary
that becomes more and more right-leaning,
when the popular vote becomes
more and more left-leaning.
So, and I do have thoughts
on that issue too.
- Let me just say briefly,
I don't think jurisdiction stripping
should be categorically off the table,
although, maybe in certain
rights areas it should be,
but in general, the general
population, I think,
it's plausible, there's clear
congressional authority,
there are ways it might be done,
that would lay the civil rights concerns
and have a salutary effect.
Although the history there
doesn't give great reason for optimism.
But you also made a point
about longer terms that are being served.
I have just a little data on that
from a study published a few years ago,
finding that between 1789 and 1970,
the average Supreme Court justice's term
was under 15 years, one five.
Since 1970, it's been over
26 years, average tenure.
So it's a, not just a quantitative,
arguably a qualitative
shift in what it means
to get a Supreme Court appointment,
when you're serving nearly 30 years.
And I think in a democracy,
to have that lack of turnover
is troubling in itself.
- Kristine or Professor
Wheeler, any thoughts?
- No.
- Sir please.
- [Steve] Yeah, so I
probably should tell you
who I am, I'm Steve Susman
from Houston, Texas.
For eight years, I served as
the Chair of the American
Constitution Society,
Judicial Nomination Task Force.
And for about half that
time, or maybe longer even,
I have been a member
of the Judicial Nominations
Evaluation Committee
for the two republican senators in Texas.
I am, indeed, probably the
remaining sole democrat
and plaintiffs lawyer on that committee.
It is amazing how a good group
of lawyers, around a table,
whether they are republican or democrat,
can come to a consensus on who
is the best qualified to be a trial judge.
And we do it, and thus far, the senators,
we have a dispute between
our senators in a way,
and the dispute that's going on,
which I think is now
broken out in the public,
is whether a trial judge should know
about how to try a case
or whether it's okay
for a judge to be appointed,
a United states District Judge
who has never seen a jury trial,
never conducted a jury trial,
and we have some of those now that are
being recommended by the
White House and the senate.
And there's a dispute
whether that should be done.
And when it is done, it
alarms the republican lawyers
on this committee, as much
as it does me, the democrat.
So here are some things that you can do
and need to be done by academics
and the Brennan Center.
You should come up with a model
process for senators to use
when they appoint committees
to advise them in our process,
which is very, I mean the process,
I feel free to talk about,
which is the senators announce
that applications are open,
and anyone who wants to apply,
fills out this impossible
application, 50 pages long.
So one of the things you aught to do,
is come up with a model application,
that has the crucial material
that can be gotten to quick.
How do you appoint
members to the committee?
Should it be balanced between
republicans and democrats?
Obviously it should be.
And I think you could get,
even republican senators
and democratic senators,
to a degree, on that change.
That good lawyers, practicing
lawyers in the community,
you put four democrats and four democrats,
or forty democrats,
whatever the number is,
you evenly divide it.
One of the things, one of
the reasons that works,
the process works, is
that it is confidential.
And even though I am not a supporter
of the senators who appointed
me to the committee,
I would never tell you what
goes on in a committee meeting,
'cause I am sworn to secrecy
and it's done in private.
One of the things that could be done,
would be a recommendation
that the hearing process
be a private process.
There's nothing that requires
that process to be public.
In Israel when they appoint judges
to the Israeli Supreme Court,
and they are a society very much like us,
torn by very much similar issues,
they don't have anything
like the Kavanaugh hearings
or the hearings we've been through,
because they are private.
There's a committee of lawyers and judges,
members of the Knesset,
that makes recommendations,
but those hearings are all confidential.
So why do we keep,
why do you have to have
these hearings public?
They could, I mean I think
the senators meet periodically
on highly sensitive material, the public,
cameras are not allowed in the room.
It's become a television event.
And of course it's
gonna become politicized
as long as it's publicized.
So that can be changed
and maybe the democrats
and republicans would agree
that that's a change that should be made.
But then you have, you tell
them how to appoint committees,
you have a model application for them,
you tell them about how those
committees aught to vote.
Should it be a public vote,
I mean should they vote secret ballot,
should the vote be announced,
what the timing of everything?
Rules, because otherwise,
the senators don't have
anything to go buy.
And they do the best they can.
And the one who's most interest,
if there are two senators,
the one who's most interested in,
in Texas I think there's no question
that Senator Cruz is the most interested
in putting people like Senator Cruz.
And these people, you see
them coming from a distance,
they clerk for Scalia, Thomas, Alito.
They are totally qualified, except,
they've never tried a case,
they have never seen a trial,
they don't know what motion limine is,
they don't know what is,
or a Daubert motion is.
These are things that are foreign to them.
And they are now being sent, dispatched,
to small towns in Texas, which
have a single federal judge.
They have never, a lot of carpet bagging,
that's another thing you
can make recommendations on.
Should we be appointing district judges
to go to a town where they've never lived.
Someone who's worked for
an institute in Washington
who clerked for the Supreme Court,
what business do they have
being on the trial bench
in Lubbock, Texas, or Midland Texas?
And these are questions
that we discuss in our
committee, by the way.
And it would be helpful to have
some model recommendations,
get 10 law professors, five
republicans, five democrats,
get the Brennan Center to sponsor this,
and begin with the lowest
court, the trial court,
because what these 30
year olds that are getting
on the trial court are gonna be,
they're the next appointees to the circuit
and the next nominees
to the Supreme Court.
So you can see what's happening.
- Thank you very much,
that's very helpful.
I don't know that such
a model process exists,
I don't know that I've ever seen one,
or that anybody has
actually sketched one out.
So that would be, actually,
a very useful project.
Yes sir?
- [Audience Member]
Yeah, this is a question
for Professor Pozen,
but I would welcome
anyone's thoughts on this.
To your proposal about term limits,
I guess the question I have,
aside from the constitutional issues
of appointments clause
or for cause issues,
is what would you do about
the revolving door problem.
I mean, for the most part,
we've had federal judges
who don't go back into private practice.
If you had a term limit
for Supreme Court justices,
as well as the fact
that their recusal
standards are self-policing,
wouldn't you be sort of politicizing
both their time on the bench and after?
I'm just curious about
your thoughts on that.
- Two-fold answer, thanks.
One is that an 18-year term
may well be long enough
to allay the most serious
concerns about the revolving door.
That's a long term, 18-years.
Indeed it's longer than
the state Supreme Court justices
have by way of comparison.
And other countries use similar terms
for their highest court
and seem to find that concern manageable.
But the second, and kind of better answer,
is that the way in which
you reconcile the proposal
with the guarantee of
office during good behavior,
the life tenure guarantee
of that work term,
using the constitution, is
that you still get to be
an Article Three judge after 18 years.
So the only thing that's
time limited to 18 years
is your service as an active
justice on the Supreme Court.
And under different proposals,
either you become an inactive
justice after 18 years
or you could serve on a circuit
court under other proposals.
But I think all the
proposals, so as to allay
the good behavior clause
constitutional concern,
let you still be an Article
Three judge, past the 18 years.
And therefore, deal with the
revolving door concern as well.
- Any other comments from the panelists?
And I think we have time
for one more question.
Any other comments on that
point from the panelists?
- I think you raise an important point,
because ethics and a growing concern
that judges are perhaps
not dispassionately
applying the law, but instead are thinking
about their sponsors who got them there.
I think there is a growing ethics concern
with the existing Supreme Court,
without even having them be able to leave
and go work either for
a company or a firm.
So I think it's a good concern
I hadn't heard raised before
to the term limit idea.
- Yes?
- [Audience Member] So I'm
curious what your thoughts are
about Chief Justice Roberts
recommending an investigation
on some allegations on Justice Kavenaugh
a week after he was confirmed.
Have you heard anything
about what happened
with the Tenth Circuit
and those allegations
that have been requested to
be researched, investigated?
- So my understanding of the law
is that no lower court
judge could punish or enact
any sort of findings against
a sitting Supreme Court Justice.
So I think the timing of the referral,
may have itself, mean it's
going to a dead letter office.
It's not, as far as I know,
it's not something that Judge Tymkovich
would have any ability to
discipline or investigate
a sitting superior of his,
which is one of the nine
Supreme Court justices.
- Supreme Court justices
aren't covered by the act,
that's the point.
The act defines judges in such a way
that it doesn't include
Supreme Court justices
and got transferred into the
statute to the Tenth Circuit.
I was wondering myself, why
we haven't seen anything yet,
because I think it's
an open and shut case,
but then I recalled that
the Judicial Conduct Committee
of the Judicial Conference
has to pass on decisions
of the circuit court judge,
just as a matter of routine,
for reasons we don't have to go into,
and I imagine that's the
process that's going on now.
But I think the day's
gonna come pretty soon
in which the chief judge
of the Tenth Circuit
simply concludes the proceedings
because there is no,
they have no jurisdiction
over Justice Kavanaugh.
- And I'll just add that I do think
there are going to be
things that come to light,
that senators would've
factored into their decisions,
but because Brett Kavanaugh's record
as a public operative
in the Bush White House
was deliberately hidden,
senators didn't have it in front of them.
So I think your question
goes to the timing
and possibly suspiciousness of
the delay of referring that,
and I have no idea
what the charges are in those allegations.
But I can absolutely see that
with the Presidential
Records Act time expiring,
there will be more
publication of the record
that should have been
in front of the senate
before it voted on the
confirmation of Brett Kavanaugh.
- Kristine, can I put you on the spot
and ask what you think of proposals
in the spirit of democrats,
that the house should,
in the coming two years,
investigate the various aspects
of the Kavanaugh allegations against him,
or do you think that would be a bad idea?
- So I have concern as a general matter,
about judicial oversight by
the House Judiciary Committee,
because of some memories of what happened
in the early 2000s, where
judges were called in front
of the committee to talk about
why they departed sentencing.
So I come to it with some reluctance
of oversight of the Third
Branch, but in this instance,
there were some real
concerns about process,
what the FBI was restricted,
in terms of its investigation.
And also, there were some
other very serious allegations
that will, I think,
unfortunately lead to people
having lower public faith
in the Supreme Court,
so I think that oversight
of the Third Branch
needs to be carefully done,
not how it was done 18 years ago.
But I do think that there are
a lot of unresolved questions
for one of the nine most
powerful people in the country
and I do think that there
will be some oversight of it.
- Just thought I'd look in your direction.
Do you have anything to say to that?
I mean you don't have to.
- There are a lot of open questions
about the whole Kavanaugh affair.
Sometimes when I talk
about the process of
judicial nominations, I take,
I pause to talk about one
thing that works really well,
or relatively well, in my experience,
is this background investigation process.
When I was on the Hill I worked daily
with Kristine's colleagues
in Senator Leahy's office
on reviewing the
backgrounds of nominations
and I thought we did
a pretty thorough job.
It was never politicized,
nothing ever leaked,
my colleagues in Senator Leahy's office,
knew embarrassing details
about the private lives
of prominent republicans
and never told the press.
I mean it worked really well.
Something went wrong in this process
and I wanna know what,
and I think the senate
needs to figure it out
because it needs to work in the future.
The solution to this stuff
spilling out in public
is a White House stopping
to share the FBI files on nominees,
which would hurt the process even further.
So I hope they work that out
and I hope they correct that.
It's a separate bucket of issues,
but I think the background review
is really, really important
and it needs to be professional
and it needs to be bipartisan.
- Well with that I'm
gonna conclude the panel.
I wanna thank the panelists,
it was a conversation marked
to a refreshing degree
by civility and thoughtfulness.
I'm heading back to D.C.,
where I will not be exposed
anymore to that behavior.
So I thank you very much
all of you for coming.
(audience applauds)
