- [Announcer] So, welcome back
everyone to the second panel,
it is now, I believe about 1:15.
We have until 2:30 for this second panel
with our esteemed speakers.
So, I think we are ready to go,
we also have 15 minutes
at the end for Q&A,
so, you can start.
- Great, thank you all for being here.
So, I wanted to start
off before we get going
recapping a little of
the vision that we heard
from the last panel which
really addressed the question
of whether or not the Senate's advice
and consent process is broken.
And I think after listening
to them, depressingly,
we might of come to the
conclusion that it's
mired in partisanship,
shedding more heat than light.
Often characterized by
hypocritical assertions
by senators about the
way they're behaving.
Versus, the way they are
supposed to be behaving
versus the way they actually behave.
That it's gonna get worse
before it gets better
and that we're basically on
a one-way ratchet downhill,
in terms of the process.
It's also not particularly rigorous.
Those are some of the
things that I came away with
from the panel.
So, before we get going,
we're not gonna spend
too much time on asking the question
whether or not the Senate's advice
and consent role is broken.
We're gonna spend most of our time
trying to talk about the consequences
of the way we currently confirm judges.
But before we get started
on the larger topic,
I want to ask the panelist
to answer the question,
do you agree with the first panel?
Is the process broken, are
we on a one-way ratchet,
and how would your characterize
the way the process is broken?
- Sure, thank you and first off,
I want to thank the Brennan Center NYU
for inviting me to participate.
Yes, I do think the system is broken.
I am usually a glass
half empty kind of person
and even I'm not willing to
say it's a one-way ratchet
because I do have sort of the long view
that, you know, anything
is fixable and reversible
if we put our minds to it.
And so, I think, for me,
you can't really look
at what's happening with the court
without looking at the larger context
within which all this is happening.
And, I don't think it's
overly political to say
or partisan to say, I'm not partisan,
that we're sort of in an abnormal point
in our nation's history
regarding governance.
I think that the danger of
the process as it is right now
is that, you know, one of the dangers,
I have many in my mind, is
that the public will lose faith
in the rule of law.
They will see a system, a
process, a vetting process
where folks aren't properly vetted,
folks are being considered and confirmed
who are unqualified in
almost any way you define it,
some of them.
And really is seen as almost
like a political hackisphere
confirmation process.
And if people lose faith in the judges,
lose faith in the political process,
they'll lose faith in the rule of law.
And quite frankly, that's the thread
that holds the tapestry
of our system together.
So, I think that's the danger
but I think it's fixable.
- Great, yeah, no, I think
it's broken beyond repair.
Not much to say here, I think,
the breaking will lead to and
has already begun to lead to
a radical transformation
of the federal courts.
And I share the view that we're ultimately
going lead to a very dangerous place.
But, I do think that there are some
important lessons to be learned.
And while I don't think you can put
the genie back in the bottle
with respect to blue slips
are not gonna come back
in a meaningful way
but there are creative solutions, I think,
that we can look for to
actually move us forward.
So I look forward to talking about those
but in terms of is it broken,
the vacancy crisis that
was created, by the,
I just wanna lay some blame.
It's broken but we know who broke it.
The vacancy crisis,
the denying Merritt
Garland a hearing at all,
the stacking of the
federal appellate judges
on hearing panels, recess
confirmation hearings,
you name it, the scrapping
of the blue slip,
that's all on the Republicans.
And, it's broken.
- Jamil? (laughing)
- Well, I mean, I think it's not broken
from the perspective
of a sitting president.
In the perspective of
the sitting president,
Republican or Democrat, it's
a very effective process.
You nominate your candidates,
they go to the Senate,
if you have a majority in the Senate,
your nominees get on the bench
for your four or eight years in office.
And so, it's a very productive process
for appointing presidents who
have a majority in the Senate.
For appointing presidents who don't have
a majority in the Senate
or for people who are, who
don't have the presidency
or the Senate it can be
a frustrating situation.
Of course, this is a
situation that has been
long in the making.
It's a situation that
came out of the decision
to get rid of the filibuster
for judicial nominees
and that has taken us to a place
where we don't need consensus.
And so even where the majority is close
as it was in the last
sitting of the Senate
with only two seats, it's
widened now with six.
But, when it's not close, you don't need
to build bipartisan consensus
because you don't have to
get passed cloture anymore.
And so that's a challenge.
And it's not surprising
that you see a president
post cloture as President
Obama did in his time in office
being very aggressive about appointing
as many nominees as possible
to the courts of appeals
because that's where the win happens,
or at least, perceived.
I think the larger problem that we see is
why are people so concerned about
nominees to the federal bench?
Why are people so concerned
about appellate nominees?
Why are people so concerned
about Supreme Court nominees,
and who they are, and
what their politics are,
and what their judicial philosophy is?
It's in part because the
courts, for a long time,
have not done their historical job.
They are out there setting policy
on a regular basis for the country
rather than simply
applying the law as written
and applying the constitution as written
by our framers.
They are implementing
their own policy views,
a lot of judges are, and increasingly
they're motivated to do so
by our political system.
We as individuals, and as lawyers,
both Republican and Democrat alike,
when we don't like what we
get of the political system,
whether it's congress or
the president or both,
we become accustom, on
both sides if the aisle,
to running to the courts and
saying, you fix the problem.
Right, rather than electing
the people we want to elect,
rather than holding our
elective leaders accountable,
we ask the courts to fix the
policy problems we identify
and then get upset when they don't.
Or if, take something
they do, we're very happy
and we want more judges
like that appointed
and that's exactly part of the problem.
It's the more that judges
get back to doing their jobs,
the more we can hold
legislatures accountable,
the less we'll be
worried about the process
by which judges are
nominated and confirmed.
And to the extent that we
can return, ever return,
to a process that has to
come in putting back in place
the cloture rule and of
course nobody's the majority
wants to do that, once it was gone.
That really is the perniciousness
of having gotten rid of
it in the first place.
- Purvine.
- Yeah, so I don't disagree
with what Eric and Todd said
about the whole process being broken
and perhaps irretrievably so.
I think, I don't wanna
say irretrievable yet
because there have been examples of things
that have reversed.
So, for instance, during
a Bush administration
they cut the ABA out of the process.
During the Obama administration,
if it truly is a one-way
ratchet that we say, look,
the ABA is an unnecessary extra layer
that is just adding more time,
sometimes vetting out candidates
because there was a
productive conversation
about whether excuse towards credentialing
traditional law firm paths,
minority and female candidates,
there was a, but ultimately,
the Obama administration decided
we're gonna include the ABA, once again,
bring them back into the
process and make them.
So, it hasn't entirely
been a one-way ratchet,
I think though, to Eric's pessimism,
I think that in this
instance it probably is.
And I think the more
productive conversation
is what we do with the new normal
rather than whether we can
get it to the old normal.
It's sort of like, how do we function
both as a Senate and their
advising consent responsibility
but also as a voting public,
who now is going to
have to vote for members
based on how they voted on judges.
Which hasn't happened historically.
And then, the last thing
about the confidence,
I share Todd's concerns
about the public's confidence
in the court which has always been higher
than in the other more
explicitly political
branches of government.
And so, I will site
just three sets of data
looking a Gallup polling
and this is percentage of
respondence who a have,
"A great deal or quite a lot
"of confidence in the institution."
When you look at the Supreme Court,
in 1988, 56% said they had a great deal
or quite a lot of confidence
in the institution.
Compare that to 35% for congress,
so you see the spread there.
In 1998, still 50% for the Supreme Court,
28% for congress.
So as the political
disfunction ratchets up,
it's clear that the public
has less confidence in institutions.
Now, move this to 2018,
and this is before the Kavanaugh hearings
but 37%, 37%, we've dropped substantially
have confidence in the Supreme Court
and 11% for, you know, congress.
And I think we've only
begun to imagine the effects
of the Kavanaugh confirmation process
will have on the long-term credibility
and confidence in the court.
- So, let's put a pin in some of the
initial discussions we had
about potential solutions
and about moving forward
and pivot for a brief period
to the impact of this broken process
on our judiciary and
on our justice system.
As I was thinking about it,
I sort of thought there were a few buckets
or categories of impacts
and they're not, kind of,
perfectly discreet buckets.
Sometimes, you know, they
blend in too each other.
But, as I thought about the buckets,
well one is the actual
quality of the candidates
who are being, you know, brought through
the nomination to the
confirmation process.
And that quality, it
has a blend of things,
it's first who are the
people the, kind of,
diversity of the candidates
combined with the actual qualifications
or temperament or judicial
philosophy of the candidates.
The second big kind of impact bucket
would be the perception of
the legitimacy of the court.
The third bucket would
be the actual substance
of the decisions.
What are, you know, is
the judiciary, as a whole,
moving in a particular
angle or in a particular
direction in terms of substance.
And substance is huge, obviously,
there are all sorts of
sub categories of law.
And then, the final big bucket
of impact that I was thinking about it
and I haven't quite figured out how
to give a quick explanation for it
but let's call it the
separation of powers issues.
The larger issue of our
constitutional framework,
the role of the Senate versus
the role of the executive branch versus
the role of the judiciary and that larger,
sort of, kind of structural question
and how it impacts our democracy at large.
That's a pretty big bucket
and I'm not sure we're gonna be able to
spend too much time on it,
but let's focus for a moment on
the quality of the candidates.
And so, my first question is
President Trump, thus far,
has had 84 nominees confirmed.
I think there are another 50 odd pending,
in some level
or another within the Senate
at this stage of the game.
Are they qualified?
What percentage of these
people, would you say,
are qualified to be judges?
- I go first?
- Yeah.
- So, you know, I,
there was, you know, quite a few judges
we've seen come through.
I think, I would say, and I don't have
the stats in front of me but at the time,
when, you know Brett
Talley was coming through
and some of the others, that
Trump had nominated more
or at least the same number
of not qualified judges
by the ABA's viewpoint
in, I guess, nine months,
for his first nine months
had done his entire career,
or entire presidency.
And that's, you know,
through the ABA lens, right,
so that's temperament,
that's how you're going to
be as judge on the bench.
For LDF, you know, Racial
Justice Organization,
we also consider qualifications to,
someone's qualifications to
be evaluated through the lens
of how are you gonna do
with the rule of law,
you know, we're big fans
of the rule of law, right.
So we, you know, we brought you
Brown versus Board of Education,
we've been discussing the rule of law
and how our stakeholders
should trust the rule of law,
trust that the government will
and society as a whole will
bend that arc towards justice.
So, we look at our judicial nominations,
look at the judicial
nominees through the lens
of how they, what their
record says about their,
how they treat civil
rights and racial justice.
You know, by and large, the nominees,
the more storied nominees
that come through
just through this administration,
have horrible records on
civil and human rights.
You have Tom Farr, who is pending,
lower court judge, Eastern
district of North Carolina
who was sort of the go-to
person for voter suppression,
sat at the feet of Jesse Helms.
The scare there is that that'll become
sort of the measure of
horribleness, but we have others,
right, we have a judge
who actually went through.
Norris, who is a Tennessee legislature,
who supported anti LGBT legislation,
resegregation legislation.
And in the past, you know, you would have,
I think, judicial nominees who
may not have a paper record
or maybe do something
to try to mask their
record on their way up
but this seems that,
it's almost like these
are qualifications that
this administration
is sort of looking for.
And I feel that, in
some ways, it's designed
to sort of integrate the judiciary into
the governance strategy
for this administration.
Who, by the way, has, you know policies
that are sort of anti civil
rights and anti human rights.
And it's their way of sort of locking in
those retrograde polices.
So, in terms of qualifications,
we look at how a judges would be
with regard to those rule of law issues
and, you know, since we
had at least four judges
who refused to, actually
four plus and counting,
who refuse to endorse Brown
versus Board of Education,
it should give you a lot of pause
as to who qualified
these folks are at large.
- So, Jamil, let me ask
you a quick question,
kind of following up on that
or, varying the question
the to a slight degree.
If we think the system is broken,
if we think the role of the
Senate, to a certain degree,
is to serve as a kind of
quality control process
on presidential nominees,
do we conclude then that the quality
of judges who've been confirmed
under this broken process,
which hasn't just been broken
under the Trump presidency
but do we conclude that
many of these judges,
who have been appointed are not qualified,
are low quality, are not
the quality we would want?
- No, I don't think so.
I don't so, I don't think the process
speaks to their quality,
I think the nominees themselves
speak to the quality.
And if you look at the very metric
that we just talked about, the
ABA's qualification ratings,
the vast majority of the Trump nominees,
as was the case in the
Bush administration,
as was the case in the
Obama administration,
as was the case in the
Clinton administration,
were either well qualified or
unanimously well qualified.
So this idea, somehow, that the quality
has dramatically dropped
off under Donald Trump
and I am not a particular
Donald Trump fan,
I was an early adopter of
the anti Trump movement,
signed the March 2016 letter, right.
That being said, I mean,
the idea that Donald Trump's
judicial nominees have been unqualified
or are not well qualified is ridiculous.
Even on the ABA's own basis.
And so, sort of this, this sort of smear
that the Trump
administration is nominating
a huge set of unqualified nominees,
or frankly, I think the bowl
that as put on the table
is racist nominees, I think is outrageous
and is patently false.
And the record doesn't support that,
so, I mean, let's talk,
let's be candid about
the vast majority of these nominees.
You can point at one or two
you might have concerns with,
you can point at, and there
were some famous flame-outs,
I think, we saw during
the confirmation hearings.
By the way, I would note under questioning
by Republican senators,
these flame-outs happened.
But there's this idea that somehow
there's a vast,
unqualified, not, you know,
lack of qualification on these nominees
is just patently false.
- I'm sorry, can I jump in?
- Yes, please.
(throat clearing)
(laughing)
- So I think that depends
on whether you think
die hard, ideology makes
someone not qualified to be--
- You mean like Lucy Coe or Goodwin Liu?
- Let me, I'll go through my tickler here.
(laughing)
So I spent the last few
years at Lamb to Legal,
going through everybody's record,
looking a these judicial nominees,
not only for how extreme their views are,
which I'll address, but
also to your point about
the process didn't lead us here.
The process absolutely lead us here
because we have outsourced the picking
to the Federalists Society,
the Judicial Crisis Network
and they, the Heritage Foundation,
and these groups are reaching into
the Alliance Defending Freedom,
an anti LGBT hate group.
Reaching into the Becket Fund
and pulling up these lawyers
to populate the federal bench.
And because we don't
have a meaningful check
on these ideological persuasions,
they're all sailing through.
And let me give you just a slice
of some of the really disgusting
anti LGBT folks we've seen.
Stuart Kyle Duncan who was defending HB2
in North Carolina, the
anti trans legislation.
Jeff Mateer, who famously,
at least we were able to stop this one,
famously said that trans students
are part of Satan's plan for
the destruction of society.
Let's see, Damien Schiff, who wrote about
how California is trying to
teach gayness in our schools.
Geez, I could go on and on,
Steven Grasz, who was the
president of an organization
that actively promotes conversion therapy.
Rated not qualified by the ABA,
so them too also saying, hey
your piers think you're bad.
All of these folks, you know,
some of them got stopped
but some of these folks
are now appellate judges
and yes, the process contributed to this.
There is no meaningful check and the idea
that somebody like Senator Collins
is gonna stand up and say, hey, you know,
this is a little too scary even for me
when you've got the
Judicial Crisis Network
coming at you with a $10 million ad buy,
is ludicrous.
- Well, so--
- So, let's talk about
that, let's talk about that.
- Purvine, let's let
Purvine have a quick word
and then we'll talk about it.
- So, I think that there's something
a little bit curious going on here
in that there's an asymmetry about
the use of the ABA system.
So, the ABA is either a useful
or not useful system, right.
So you cannot simultaneously
cut them out of the system
and say we're not gonna wait until
Senate judiciary hearings
until the ABA ratings are out.
But then also use the ABA ratings
to buttress your nominees.
- Why not?
- It just--
- Why not?
Hold on, why can't you simply say,
we don't think they're a useful tool
but when they rate our candidates,
if they rate them well,
we're happy to side them.
That happens all the time,
happens all the time,
there's nothing
by definition wrong with that.
- But if the rating--
- Man, you can't fight
the point that ABA, right,
the vast majority are qualified
for the answer of qualified, right.
Let's talk about on the stats.
- Yeah, I'm just saying that
I don't disagree with you
on the number of the stats
but my point is, if it is a useful tool
and in some sense the fact that
they were rated qualified is meaningful
then it is an endorsement in some sense
of the ABA system.
You, yourself--
- I don't think so,
it's just, it's simply,
I'm simply using the statistics
that were sited back.
Right, the question was,
how do you measure
qualified qualifications
if you want to say the ABA
system is a good measure,
right, which I think is
the point that was made,
it's a good measure.
Okay, well, on that basis, these nominees
are well qualified.
I'm not going, I'm not
saying I would use this--
- I mean, is it the only measure?
- But you said that it was--
- So I would say, and I
definitely don't think that.
I think that the ABA looks at
a very, very constrained
set of things, right.
They don't get into ideology,
they don't get into those kinds of things.
They look at a set of qualifications,
threshold qualifications about temperament
but also the background,
the trial experience,
those sorts of things.
I think it is a useful measure,
I certainly don't think it
is the end of a conversation
so I think Jamil and I probably have
an agreement about that, it
is a threshold determination,
like a driver's license would be.
The fact that you can drive a car
doesn't necessarily mean that
I want you to drive a bus.
And so, I think the ABA to me
is useful determination of some baseline,
threshold qualifications,
I don't know that it's
the end of a conversation
but I do think that
they have a useful role
in the process and I think you do see
and I'm not talking about Jamil,
but I do see both Republicans saying
that the system is not useful.
But then also people
using that same system
to buttress candidates.
So I pause there but I would say
that I think that the
conversation about substance
has sort of trickled into
the everyone's comments,
Todd's, et cetera, it's more than just.
- That's right.
- It's certainly wasn't
part of the first panel,
it's more than just
where you went to school,
the number of years
you've had on the bench.
We do get to substantive issues
and even Jamil talked about
Judges that follow the law,
right, and don't make policy.
This is about substantive
outcomes in your cases.
- Yes.
- So, I think in some sense,
we're all agreeing on that,
that there is something a little bit more
than just year on the
bench, trial experience
and your grades in law school
and where you went to school.
- Right because one of
the difficult questions
about understanding the Senate's role
in its advice and consent role
is having an understanding
of what the Senate
regards as qualified.
And what factors it can or should look at
in determining quality or
qualifications of someone.
Is it merely, you passed law school,
you've passed the bar, you've
been 10 years in practice,
you know, you don't seem to have,
you know, committed any crimes
therefore you are general, and
you've got good temperament
and good judgment,
therefore you are qualified
or is it broader than that?
And I think one of the
things that the first panel
was talking about and struggling with
was this question of
when trying to understand
what the Senate's advice
and consent role is
is how broad is their scope of advice,
how broad is it?
And I think that one of the things
that the panel concluded is that
the Senate's advice and consent role is,
and their vision of their role,
is very restricted right now.
It is mired in partisanship,
it's rubber stamping as long as, you know,
the nominee came from the
president of the same party.
And that can obviously occur
regardless of who it is.
And so that's a little bit of
the point behind my question.
I don't know.
- So, no, I think, from
our perspective, obviously,
the advice and consent
role is broad, right.
It's not just going through a resume
and selecting judges.
The problem we have now
and I think Kavanaugh,
the Kavanaugh confirmation
process is sort of a case study,
the problem we have now is that
you know, we have a process where
Senate is not really, the
Senate Judiciary Committee
is not being given
opportunity to actually,
truly vet the nominees.
We have hearings being held during recess,
we have, as someone mentioned before,
judges being stacked,
judges being put with other
executive branch nominees so that
you can't really have a lot
of time to actually vet folks.
You have a situation where
again, in the Kavanaugh context,
where they withheld documents
or characterized documents as confidential
when they truly weren't.
You know, I think, and then, there's also
the consultation fees, right.
So, there's a lot of facet or elements
of the advice and consent role
that get to, I think, allowing the Senate
to truly evaluate
someone's qualifications.
So yes, an ABA score, that's easy,
you don't need too much
to really evaluate that.
But to truly understand
how a person thinks,
to understand what someone's
philosophy's gonna be,
to see what someone's ideology is,
then look at their case and say, well,
you were flipped for a certain outcome.
That involves some rigger
and it involves some inquiry.
And if you don't have the documents,
you don't have the time to
actually have that inquiry,
if perhaps the president
and his party are afraid
to have you delve into it,
then you don't have a true process.
And again, I go back to confidence,
the people start seeing the
judiciary as just an element
of just an extension of the larger of,
you know, executive
branch, judiciary branch.
And then what do we have?
- Yes, so, Jamil, you're, I think,
the only person on this panel
who has worked in the executive branch
in the process of picking judges.
Is that, have I got that right,
if anyone else on the
panel was, let me know,
I look to...
So, when you were in the, kind of,
in that behind the scenes role
of helping pick nominees,
were you afraid of
what the Senate might do when it, kind of,
conducted it's advice and consent role?
Did you?
- No, I think we welcomed it
and I think, you know, I think
that the same is true today.
I don't think there's any question
that people are afraid
of the Senate's role.
The Senate should have a robust role,
it's our constitutional process,
they're expected to provide
their advise and consent
and they should do that.
When we looked at nominees
in the Bush administration,
we spent a lot of time,
before someone was nominated
diving deep on them
and we would look at all of their cases,
we'd write up a memo,
we'd call every judge
in the district in which
they were nominated
in the court of appeal
which they were nominated
to ask about their own,
about the judge's view
of that litigator or that lawyer.
We would call their
colleagues at their law firm,
we'd call the opposing
counsel in their cases.
We would sit there and vet these people
at a very detailed level.
We'd look through their background report,
we'd put all this information into a memo,
this is before somebody's even considered
by the White House for nomination.
This is somebody who's just
being a potential candidate.
They would then, that
information would then go to,
go through the justice department
and go to the White House
Counsel office, they would vet it
and ultimately it would go to
the president for decision.
And so there was a long, drawn out process
before somebody would be
announced publicly as a nominee.
And so, that process made us confident
that there would not be
challenges of the Senate
because we'd already done all
our homework on these people
and prepared for any potential challenges.
To the extent if there were concerns,
those were well understood,
had been well thought through
and we were prepared to
defend those nominees
before the Senate.
Now, given that there
are clearly some nominees
who face some challenges
in this administration,
whether fairly or not,
one might ask whether that
process is working effectively
and that's a fair question, right.
But let's be honest, the fact that we know
that some of these nominees
have had challenges
is proof that in fact the
Senate is doing its job.
The Senate has the time and the ability
and the capability to do identify nominees
it thinks are not qualified
or are problematic
and stop them.
And individual senators
have in fact stopped them.
You know this idea that Susan Collins
can't stand up to the JCM but she has!
And the reality is that
time and time again,
an individual senator,
right, can stand and say no,
I actually don't want
this nominee to go through
and when there are only
two votes separating
a nominee from
confirmation, even in a post
filibusters gone world, right,
those senators have a lot of ability.
Now, the facts also on the ground are
that in this past midterm election, right,
the president's party has
gained seats in the Senate.
That suggests that in fact, at least on
a state by state basis the American people
don't think the process
is broken in the US Senate
and the process is working effectively.
Otherwise they would of voted
for the opposition, right
and they would of voted of
the opposition in those states
and would of gained majority.
So the fact that president
has more seats now, right,
suggests, in fact, that
the American people
aren't as upset as the
people on this panel are
about the outcomes of this
current confirmation process.
- Or it suggests that
they vote on a lot things
other than just judicial confirmations.
(laughing)
- Sure, sure, like the economy.
- But--
- That's right, like tax
policy and the economy, right.
- And that they only vote for
a third of the senate seats
at a time and the way that the seats
are distributed geographically
makes a difference
in terms of their impact
and so on and so forth
and that the majority of
the American population,
in any event, did vote for
a change in party control.
You know, or voted against
the president's party but--
- Again, I'm not saying that somebody
who supports the president's policy,
what I'm saying to you is,
is that if the situation
were as dire as it sounds,
having heard that last
15 minutes or 30 minutes,
or last two hours of conversation, right,
we might of seen different outcomes.
- Can I--
- Let me just say, I'm sorry.
Let me just say, you
know, this notion that,
I've had actually people
say this to me also
that, you know, if the American people
wanted a change in the Supreme Court
they would of changed the
majority in the Senate.
If I, if my life were based on
a majoritarian view of the world,
I wouldn't be sitting here.
The job of the Supreme Court,
therefore the job of the Senate,
is to ensure we have quality judges.
Judges that aren't necessarily
at the whim of the majority,
at the whim of any
particular, I don't know,
hysterical anger of a
particular president.
It's more rigorous that
that, it requires more rigor.
One thing you didn't mention,
which I know you did,
was you consulted with the Senate
before you made the
nomination, most likely,
across party lines, that's
not happening anymore.
That's happening anymore
because this administration
sees the judicial nomination process
as an extension of its
policy, the machine.
Now, whether or not, and as you mentioned,
it's his choice, the
president can do that,
the long-term damage of that,
the long-term damage of me not
being able to look a client
or a constituent in the eye
and say believe in the rule of law
is something that I don't think
we really want to explore too deeply.
So, I think the reason why I'm saying
this can be fixed because
it has to be fixed.
- I agree with that.
- If we lose faith in the rule of law
and in the Supreme Court, it's on.
(laughing)
- I agree 100% and the rule--
- And, let me finish.
I think that the organization
like Legal Defense Fund,
organizations like AFJ,
others in this panel,
were the ones that vetted and
outed Brett Talley and others
not the Senate, certainly not
the Republicans on the Senate.
So the fact that Scott stood up and said
Ryan Bounds can't go
forward wasn't because
Senator Grassley went to him
and said this person's no good,
it was because organizations like AFJ,
Leadership Conference,
LDF and others stood up
and let him know that was the case.
So, I don't want there to be any delusion
about what this process is yielding.
We're apart of that process, absolutely
but those who are actually charged
and elected and paid to run this process
are not doing it in a way
that is fair and equitable.
And at some point, at some point,
voters are gonna find out and
they're going to recognize
that it's not working.
- So, Purvine gave us some numbers
on people's faith in the
judiciary and its decline.
And as you pointed,
pre Kavanaugh hearings,
we've kind of had a brief discussion
about quality of candidates
and the quality of the judiciary.
Eric, do you agree that the broken process
is effecting the American's perception
of the legitimacy of the court,
maybe even its actual legitimacy?
- Yes!
And just to piggyback
off what's been said,
I'm deeply concerned about
the way that this process
is playing out and the ideological bent
that we're moving in.
We're, if we get another demo...
We are, the judiciary is going to become
more ideologically driven.
I don't think I could look at a client
who was going before some of those folks
that I just listed, who's
fighting to make sure
that gender identity is
recognized under Title VII,
or that sexual orientation the same way
or that places of public accomodation
are going to be open to everyone
and say, you're gonna get
a fair shake in this court.
In most circuits, if this continues,
I would be like, don't bring
this case in federal court now.
Now, a lot of the
organizations that I described,
Alliance Defending Freedom, Becket Fund
are cherry picking these
cases on their own terms
and bringing them up so they
get really bad rulings for us.
But there's no question that we're getting
farther and farther away from
fair and impartial courts
and that's a problem for legitimacy.
I think we're running a real risk
and I think Kavanaugh
exemplified this very well,
not only does the public
not trust the process
and what just happened with the total
betrayal and setting aside
of Christine Blasey Ford
and everything that she
spoke about and stood for.
But for Kavanaugh to sit up
there and make a partisan,
go on a partisan diatribe about,
you'll see you're gonna
get payback for this,
you and the Clintons who came after me.
The point is, that, a
person who said that,
in a confirmation hearing,
now sits on the highest court in the land.
That is the new reality.
So, yes, it's more ideologically driven.
I think there are good, there
are possible benefits to this
meaning that, or ways that
we can balance this out.
I think once you have
a Democratic president
and a Democratic Senate,
we can finally get some
civil human rights folks confirmed,
defense attorneys who are not confirmed
to the federal bench confirmed.
And we can start to roll back, once again,
the disastrous diversity
record that this court
or this administration has had
where you are seeing just
10%, people of color,
28% women, that's astounding.
You lose faith in the,
you lose confidence in the courts,
not only when they don't value
the constitutional beliefs
that most people share but also when
they don't look anything like
the people that they serve.
And that's the reality that
we're going to deal with.
We're dealing with it already
and it's getting enormously worse.
- So, Eric, let me just poke a little bit
at what you just said which is that,
you know, in this, when
there's a Democratic president
and a Democratic Senate,
and judges are appointed
who are more friendly
to some of the issues
that you believe in, why don't you think
that that wouldn't provoke
a legitimacy crisis
amongst a different set of people?
- Because, well, my personal view is
of who the constitution protects
and what judges are there to do.
And some people have
described balls and strikes,
I look at it very differently.
Discrete and insulin
minorities, folks who depend on
counter majoritarian
forces that the courts
are supposed to serve for
people who are marginalized,
who don't get the majority of votes,
who need protection from the courts
because voting majorities, frankly,
aren't going to protect their rights.
And if you come from the constitution,
from that perspective,
it makes total sense
that you would want people
who have those values
on the courts.
But the point is,
whether you come at that,
that's gonna be a disagreement between us
on philosophy, that's fine
but when you have one side
that's drastically ideological
and the other side, even Obama
were appointing pretty middle of the road
corporate attorneys, the
process has got to change.
We've either gotta, unfortunately
swing way to the other end
or get back to the center.
And I don't know how you do that.
- Purvine, you look
like you want to get in.
Maybe not.
(laughing)
Jamil.
- I mean, this idea that
it's only fair and impartial
when they decide Eric's way, right,
then the judges are fair and impartial.
When they implement
Eric's sort of vision of
what the law should be
and what courts should do
and that it's counter majoritarian,
I think there is a certainly
truth in what you're saying
that the idea of the courts
as a counter majoritarian,
that's used as a general matter,
is absolutely true, right.
The idea is that the
courts are there to enforce
the constitution as against
laws passed by congress,
right, to the extent that you
believe Marbury was correct,
as we all do, right.
That the role of the courts
is to say what the law is
not what it should be and
what the constitution is
even when congress has
done something different.
They are a counter majoritarian
institution in that sense.
But you can't say fair
and impartial on one hand
and middle of the road on one hand
when you know that just as President Trump
and President Bush appointed
judges of their ideology
and a certain view and
judicial philosophy, right,
President Obama did the same thing.
It's not fair and impartial
when it's your guys
and not fair and impartial
when it's the other guy's guys,
that's just not, that's
not fair and impartial.
Let's just call it what it is,
it's okay if we're ideological
and we want people of our own ideologies
or own judicial philosophy
or whatever, that's okay,
that's a perfectly acceptable place to be.
I do think that, you know,
you're right to say, also, that
the role of the Senate is to
carefully vet these people
and the role of the Senate
is to provide a check
on the decisions of a
popular elected president
or a president elected
through the electoral college
or whatever you want to say, right,
the way the president's elected.
That is absolutely true,
but how did we get here?
How did we get to a place
where courts of appeals judges
are confirmed by a simple
majority of the Senate?
It's very easy to look
back and figure out why
because during the Obama administration,
Democrats in control of the Senate
voted to get rid of a
180 year old institution,
the filibuster.
- Hmm, actually.
- Well, less than 100 years, that's true--
- From 1970.
- It's changed over time,
it's changed over time,
that's true, right, but a
long standing, at least,
decades long maybe an
almost century long, right,
tradition particularly when
it comes to nominees, right.
And yes, the Republicans
in control of the Senate
under a Republican president changed that,
applied that same theory of the world
to Supreme Court nominees, right.
But that's why you don't need balance,
it's why today, without a
substantial majority in the Senate,
without any more than 10 vote
majority in the Senate, right,
you don't need to find consensus
because we threw away the filibuster.
Now, should we put it back in place?
Absolutely, would that
make for better outcomes
on both sides, absolutely.
Would it make our judiciary
less, quote, unquote,
ideological or less of one
partisan philosophy, yes.
But there is no senator in
the United States Senate
right now, say maybe a couple,
who are arguing for if we
come back in the majority
or if we have the majority now,
we should re institute the filibuster.
I'm not hearing that, I have not heard
one Democratic senator say,
if we are back in the majority,
including the majority leader,
I will re institute the
filibuster for judicial nominees.
I hear that, then let's have a debate
about why ideologies are problematic.
- Todd, you've got some views judiciary--
- So, I don't think, I'm sorry.
I don't think ideology
is problematic, per se,
I think not wanting to adhere
to the rule of law is problematic.
So, you have Justice
Alito, Justice Roberts,
no one's none ideological justice, right.
And we were talking
about judges, you know,
calling balls and strikes.
We're talking about judges
who are fair and impartial,
you know, I'm thinking about Shelby,
where a judge just disregarded
what the congress said
and decided for himself that
he thought voting rights
were no longer a thing.
So we obviously have
judges who are ideological
in making all kind of rulings based,
not necessarily on the constitution
but based on all kinds of other biases.
The good news before
this administration was
and this Senate was that a lot of that
was filtered through
something called norms.
Something called, sort of, you know,
checks and balances that allowed
others to have some input.
You had Alito, Roberts, all of them
endorse Brown, thought
Brown was the bees knees.
You have now judges being
kind of cute with it,
saying, you know, the
candidates won't allow me
to comment on the Brown.
Would we tolerate that,
they said that about
Marbury versus Madison.
Would we tolerate a physicist saying,
I'm a little equivocal on whether
the earth is round or flat, no.
There are certain standards
that we've just lost
with this administration.
And my concern and my trouble is
that beyond the Senate, we
haven't done a very good job
educating the public
about what that means.
What means is that we can have a process,
as was alluded to here,
where we have a judge
lose all credibility
and really demonstrate
that he has no judicial temperament
through partisan tirades
and have that be okay.
We have a situation where the Senate
can baldly withhold documents
that the Senate needs to fully vet
a nominee and that is considered okay.
I think that this loss of norms
is what's really the problem
here, is really at stake,
what's at stake.
And again, I go back to what is the fear?
You have the numbers, you have majority,
what's the concern with
having some consultation
with Senator Booker
before you appoint someone
to the third circuit?
What's the problem with that?
What's the problem with consulting with
Sherrod Brown before you appoint someone
to the sixth circuit, what's the hurry?
So, I think there's a lot to unearth
regarding what's really going on here
when we talk about removing norms,
removing this consultation,
removing the collegiality
that really resulted in
an Alito and a Roberts
begin able to ascend to the Supreme Court
despite the ideology.
That's the legitimacy problem,
that's the legitimacy gap.
Ideology is one thing,
legitimacy is quite another
and with court and the Senate is losing,
or has lost, legitimacy.
- So, we've only got a few minutes
before we're gonna open it up the audience
but I want to kind of pivot real quickly
to some of the solutions questions
and let's go back to this.
Let's go specifically to the issue
of the New Jersey Senators
not being consulted on
the appeals court nominees
that I think there was just a
hearing on this week, right?
- Mm-hmm.
- Can you imagine a world in which
Cory Booker is the chairman
of the Judiciary Committee
and the future president
appoints someone to a
circuit court seat
where the Republican is in charge
and Cory Booker would
reinstate the blue slip
for that Senator, would that happen?
- Let me go, I want to
answer that question.
- Yeah.
- But let me go back to my fantasy, right.
My fantasy is that we do a good enough job
educating the public so that a Cory Booker
would be afraid not to do that, okay.
What we have here is the
beginnings of the public
starting to be aware, of not
only the importance of judges
and what's at stake but how truly,
to be colloquial, messed
up this process is.
So my hope, my goal, is that Cory Booker
would think twice before he removed it.
The problem is Grassley
didn't think twice.
Grassley responding to his stakeholder
said I'm absolutely doing that
because I want to absolutely push
these people through McConnell,
I want to absolutely push
these people through.
I want there to be a moment of pause
before anyone does that in the future
because voters are gonna
hold them accountable for it.
Moreover, because our
profession, as lawyers,
are gonna hold people accountable for it.
Our profession needs to step up
and start being, basically the arbiters,
the protectors of the rule of law
and of the process that's actually gone,
is sort of running a muck now.
So, the answer to your
question is, I hope so,
I hope he would give pause
but I wouldn't necessarily,
as much as I respect Senator Booker,
wouldn't want to trust that.
I'd want to make sure that there are
some accountability measures in place,
the same accountability
measures we put in place
in other parts of the congress
and other parts of the government.
- So, but before, kind
of, asking people to speak
more generally about this,
let me just ask a quick question
to everyone on the panel.
Yes or no, without querying
whether or not it can be done,
do you think we should restore
the full blue slip process?
- Me first?
- Yeah.
- I mean, I think yeah, or some,
just this idea of not consulting with,
you know, not being collegial,
I think, is troubling.
- Mm-hmm.
- And I, to me, it goes
beyond the blue slip,
it goes to the White House saying,
you know what, I'm gonna reach out
and talk to the home state
senator before I do this.
May or may not matter
regarding his decision,
I'm sure Bush did it, what's the concern,
what's the fear for doing that?
So yes, I think we should have
some kind of consultation.
- No, but what I do think
might be a creative solution,
relying on some of the
Brennan Senator's research is
looking to state courts
and how they do it.
So I can see a Democratic president
going to a Republican
senator in the fifth circuit
and saying, look, I will,
you don't have a blue slip,
you can't block the nominee I'm gonna make
but I'd like to nominate somebody based on
if you set up a nominating commission,
if you vet some people, I will take
your home state views into account.
If this nominating commission is diverse
and made up of a good
representation of the state,
I will consider a name
that you put forward
instead of somebody
that I throw out there.
Now a Democrat has some
leverage to be able to do that,
I think it would improve the process,
give some home state
senators of a different party
some stake in the game to put forward
the most qualified
nominee that they could.
And one that is a little bit more in line
with the ideology of the president.
I think that would be a creative
and, you know, restore
a little bit of faith
from the home state into the process
of the way that their judges are selected.
- Jamil?
- So I think the idea that there's
not consultations happening
is just not accurate.
I mean, if you go back and look,
the Senate Judiciary
Committee recently released
the letters back and forth
with the California senators
about the nominees to the ninth circuit.
And what's clear from that record
is that there was dozens
and dozens of conversations
and dozens and dozens of attempts
to try and find a path forward.
Historically circuit court nominees
have not generally been
subjected to a rigorous
blue slip process, it's been more,
you know, on occasion.
Judicial court nominees, certainly
but a appellate nominee, certainly not.
And if you look back, absolutely not,
you can look skeptically but you look--
- I mean, you know, I worked on
the Senate Judiciary
Committee for eight years
and put in a lot of blue slips
and ran a nominating commission
with Democratic senators
against President Bush and our blue slip
was absolutely...
- And deals were cut
to address that system
and to get passed them.
But by and large, the blue slip process
what was on its way to collapse, right,
because, frankly, the blue slip process
had been abused by senators
against administrations,
and both parties, right.
- Mm-hmm.
- And so the process was
weakened as it was, right.
And I think what gave it the death nail,
honestly, in a lot of
ways, is the decision
to get rid of the filibuster.
'Cause the reason why this norm, right,
of blue slipping.
I agree with Todd that
norms are important,
but norms are enforced through
rules, at times, right.
Norms are the baseline that allows us
to create rules that are enforceable
and one reinforced the other,
rules reinforce norms and vise versa.
- Yeah, the blue slip was essentially
a foreshortened or
foreshadowed filibuster.
- That's right, exactly right.
- Right.
- That's exactly right
and so it was respected,
sort of, in that sense
and without the filibuster
the process made no sense anyhow
and it was been weakened.
And so, at the end of the day,
I think that one thing
you have to consider,
and I would love to see Senator
Schumer come out and say it,
that if he were the majority leader,
he would restore the filibuster, right.
I dare Senator Schumer
to come out and say that,
he won't--
- What if he does--
- He won't--
- What if he does, what are
you gonna do if he does?
- Well then, we'll see what he does
when he gets into power.
I was an advocate when
we took the Senate back
that we should restore the filibuster.
- Okay, so--
- They didn't openly do that.
- So, it sounds like you're no
on blue slip restoration though, is that--
- Well, I don't really think it matters
because all that matters these days,
it's unenforceable unless
you have the filibuster.
Without the filibuster it doesn't matter,
the blue slip process is, you
know, is sort of irrelevant.
I do think where the value is though
is ensuring that you include the senators
in the process, the senators
have to be will to play ball,
they have to be willing to make deals.
And the reality is, is that today,
for whatever reason, ideology,
or the desire to sort of resist
and I understand the desire to resist,
it's not that it's not without reason.
But it's resulted in place where senators
aren't willing to make any deals
and when that happens, the
president has no choice
but to roll senators, if
they're not gonna make deals.
- Purvine, blue slip backer,
back in or out?
- So, I mean I think, I have,
there are values to the blue slip process.
I think the value is only there though
if it is truly respected by everybody.
I think the asymmetries, whatever you say
about the rule and you can
defend it or not defend it,
I think the most dangerous scenario
is where you have these asymmetries.
And I was interested in the first panel
about the discussion
about the asymmetrical,
sort of respect of certain things
or asymmetrical excitement from
voters on judges, et cetera.
I think that's where
you have these problems
and so, I would be fine with
the blue slip coming back
but only if I could ensure that
it was symmetrically observed.
And I think that, unfortunately,
because it's a norm and not a rule,
you can't do that.
I think that the value of the blue slip
had been that home state senators
are mostly likely to
have the inside knowledge
from local bar associations,
specialty bar associations,
they're sort of, who is good,
who plays well with others,
who could sort of be a
collegial force on the bench.
So I think that the blue slip
process served a purpose,
as you know, since you were on
the Senate Judiciary Committee
it was also abused at times.
And Senator Leahy got to
a place where he said,
you know, I'm not gonna
allow a secret hold
if you're not gonna return your blue slip,
I do want you to articulate why that is.
Which had not always been the case,
if you just returned your blue slip,
you didn't have to
articulate why that was,
you could, you know, hold
someone by doing that.
And so, you know, I don't
really care either way,
I just, if we bring it back
it has to be symmetrically observed
because unilateralism, it
doesn't work for any party.
- So, let's quickly talk about,
that was one particular
solution that I wanted to
kind of prompt people to talk about
and we've had already a
discussion about the filibuster.
Are there other things
that you guys think of
as potential solutions to help, you know,
kind of restore a sense of
legitimacy in the Senate's role
and, ultimately, to
restore a greater sense
of public confidence in our
judicial confirmation process
and the judiciary itself?
- Eric, why don't we start
with you, do you mind?
- Yeah, no.
- Yeah.
- Overturn Citizens United.
- Okay. (laughing)
- I think one of the biggest problems
that we're getting ready to face
and that we're already facing
from looking at state courts is
Judicial Crisis Networks
and groups like that
that dump money into races,
they've been playing the
state supreme court space
very, very effectively.
Now they're playing in the federal courts,
very, very effectively.
And I think the problem
that you're gonna have is,
and we've seen in the state court space,
is that spending influences
the decisions that judges make.
There's empirical data that shows
that you issue more
pro-corporate decisions,
you uphold the death penalty more often,
you send more people to jail,
the more money that's spent
against you in your race.
So, what I see at the federal level
is when this money pours in,
it promotes folks who go,
if I don't adhere to these ideological,
you know, constraints, what my party,
what the Judicial Crisis Network values
with the Federalist Society values,
I'm not gonna move up the ranks of
either the state court system
or the federal court system.
And what that means is you start to get
ideological decisions.
I doubt that if Judge Sutton
had it to do over again,
he would of ruled that way in the ACA case
now knowing that it's going to prevent him
from ever serving on the Supreme Court.
So, I do think that's gonna have a really
long-term, disastrous effect
is the outside influence
of outside groups that are
gonna dominate this process now.
- Okay, I know that everyone else
has actually got a fair
amount of opinions,
but do we need to wrap
or is there time for--
- Can I?
- Audience questions?
- [Announcer] You can set some.
- We have time for
audience questions, too?
- [Announcer] Yeah, 15 more minutes.
- Okay, good.
So, just, if I can ask
everyone to give your point
real quickly so that the audience
does have a chance to ask some questions.
So, Jamil.
- Well, I just think there's
an interesting tension
between Todd's perspective
which I think is right
that a lot of the ideological groups
have an important role to play
in identifying challenges with candidates
and saying I don't think
this candidate is qualified,
here are the reasons why I don't think
this candid is capable or correct.
And with what Eric's saying, which is
these ideological groups are
play too aggressive a role
and playing too much of role.
I think there's a tension there, right,
between informing voters and
informing elected officials
about these individuals.
I think the best case for Eric's position,
I think is, is a good
example of why judges
should not be elected.
It's a good example of why
judges should be nominated
by a executive official
or should be, sort of,
confirmation through the political process
because judges who are elected
are influenced by ideology
because that's what elections are about!
It's why in the federal system
we decide not to elect judges
and provide them with life tenure
and protect their salaries,
so that they would not be ideological
or motivated, at least,
by electoral ideology.
They might have judicial philosophy,
but they don't have electoral ideology
in the ideal world, right.
And so I think Eric is right to say
that we want to avoid
that type of a process
but when you have a process
where there's nomination, confirmation
I think Todd is also right.
Which is that, there is value
in groups with perspectives,
expressing their perspectives
about these nominees
and telling voters and people
who are voting for senators
or representatives in the case
of some state house systems
who are confirming these individuals.
I think there's value in that, too.
And I think there is some tension between
communicating information to the public
about these nominees.
- It's a paradox, Purvine.
- So I think educating
the public on nominees
but in a way that's
digestible is important.
I think Todd said it really well,
regardless of whether you trust someone
who's in charge of a
Senate Judiciary Committee,
their feet are either
held to the fire or not
by the public that elects them.
And so, you know, I think
that providing a landscape
where people can understand
more about nominees is important.
I mean, Jamil had said that
the elections might of been
a vindication of where we were on judges
but that presumes that
people are voting on judges
and one, that tends to not be true.
And to the extent that it
is true, it's asymmetrical.
I will say that during the
last presidential campaign,
candidate Clinton
mentioned Merritt Garland
early on in the campaign
and then puttered out.
Contrast that to President
Trump, well, now President Trump,
then candidate Trump, who
was talking about Roe v Wade
all the time and his
ability to fill the court.
And so, there was clearly
a calculation there
that a set of conservative
voters were more energized
by the courts.
And we had a nominee
that never had a hearing,
so, that could of just as well been
a sightest and locus of rage on the left.
But the decision had been that
that doesn't fire up voters.
But, I think that people don't understand
how to evaluate a judicial
nominee, it's difficult.
What does it mean when
you wrote an opinion?
What does it mean when
you joined an opinion?
If you're on one side of the case
but you're an panel of four judges
in an en banc hearing, what does that mean
if you didn't author the case?
What does it mean if you
wrote a separate decent
and it's your own voice?
I think these are hard things to manage
and I think that honestly,
groups that serve as proxies for people
who care about issues,
should start scoring votes
on judicial nominees.
So, for instance, if you're
an environmental person,
who environmental values
motivate your voting decisions,
you look at something like the
League of Conservation voters
congressional scorecard.
Who knows congressional scorecards here?
Right, it's where and organization
looks at votes that your members take
and they decide to score certain votes
and your overall candidate
score goes up or down
based on whether you
voted on certain ways.
But for the most part, progressive groups
have not, historically,
scored judicial nominees.
So LCV has had a score card for 10 year.
- Why is that?
- Honestly, I think they
have not wanted to play
in a space of politicizing
judicial decisions.
That's my guess, but I don't know.
But LCV, this year, for the first time,
start scoring votes on judicial nominees.
And so, it's had a very
powerful environmental scorecard
for over 10 years.
But in the last, in this congress,
I shouldn't say this year,
in this congress was the first time
they started scoring judges.
And so, I think if you're
an environmental voter,
that's a proxy for you.
And then you can vote for
your senators, yay or nay,
based, in part, on that.
- Do we, can we just ask,
do we know why other groups don't?
I just curious to know, do we
know the groups don't score?
- I don't know.
- Yeah.
- I know of in a case for
a few groups, but yeah.
- A few do?
- No, I know in a few
cases why they don't.
- Okay.
- But not comprehensively, Todd.
- So, I mean, I think picking
up on what Purvine said,
I think definitely educating the public
about the, what's at stake with judges.
You know, it's certainly gonna ideological
but, you know, I think certainly
after the African-American community
the polling shows, our
community, we feel under seize
by this administration.
No particular issue just under seize.
And the Supreme Court, SCOTUS
is of upmost importance
to that community.
How to channel that into
the larger community
to understand how important
SCOTUS is, long-term,
for everything, I think
there was a kernel of it
with the Kavanaugh nomination.
But I think, sort of, taking
that to the next level
without necessarily
politicizing the court,
but understanding how important
the courts are is key.
I think internally we
have to have senators
who care about process,
who care about fairness,
who care about pushing back on
sort of the naked grab for power,
to do what they can to take back the tools
they need to do advice and consent.
So, think of a Cory
Booker and Kamala Harris
and others putting up a big fight
in the Senate Judiciary Committee
to makes sure their voices were heard
regarding documents being held.
Regarding documents not being released
over the Kavanaugh hearing.
Using every procedural tool in their hands
to create a process
where they can actually
get information they need to
actually do advice and consent.
Very wonky but I think a lot of times
senators want to be very
stoic and very collegial.
Obviously not everyone
wants to be collegial,
so they need to actually use the tools
they have at their hands
to get what they need.
- Okay, why don't we do some
questions from the audience,
if you've got any, I think.
As everyone knows, there
are these mics over here
and just head to them
and ask any questions
that you might have.
No questions. (laughing)
Okay.
- [Audience Member] Hi,
so my question is about
kind of two competing
interest that we have.
So we want to, in one hand, you know,
raise the alarm when radical nominees,
like Jeff Mateer, Brett Talley
are being nominated in
order to prevent them
from reaching the bench.
But we also have an interest in, you know,
having public attention towards the courts
and that requires to some degree
the public thinking that
the courts are legitimate
or that they're not hopeless, at least.
So my question is about
kind of advocacy strategies
in that realm, how do we both
advocate effectively
against radical nominees
but also, you know,
preserve some semblance
of judicial legitimacy or
public faith in the judiciary?
- I mean, I think the way
we've advocated for this,
again, you know, we're
the ones that brought you
the rule of law is to really
talk about it in those terms.
Right, so, you know, we
don't talk about ideology,
we don't talk about how
people feel about things,
look at their record.
And I think there are certain
things you can agree on.
Jesse Helms, not a great
civil rights advocate,
not someone who believes in the legitimacy
of all human beings.
If you are going to go work for him,
at the very least, you would
have questions asked of you
regarding your role.
That wasn't happened with Tom Farr,
he denied involvement,
the Senate voted him out.
Those are questions that
we want our stakeholders
to ask the Senate and
to have them come back
for another hearing.
Those kinds of questions,
those kinds of advocacy points
are, I think are legitimate.
Whether or not Bret, no Bret Oldham,
whether the nominee Oldham
who's now gone on the fifth circuit
said Brown was rightly decided.
I think that's a
legitimate concern to have
regarding that person.
So there's certain, I
think, lines in the sand
or lines that you really can't cross
in terms of if you're
gonna be on the bench.
Others think that maybe the
number of trials you've had,
others think it's some
subjective temperament thing.
We think it's that plus whether or not
you think Brown was rightly decided.
Whether or not Brown
versus, whether or not
Marbury versus Madison was okay.
You know, there's
certain grounding things,
rule of law things that I think
are legitimate points of inquiry.
- And I would just say (throat clearing)
groups can get involved in make sure that
rules around state courts
where most public confidence,
most people interact with state courts.
That's what their experience is
and there's poor public
confidence in state courts.
And so, our organization, Lamb to Legal,
in addition to fighting
all of these nominees,
was an amicus brief and William Shuli
to try to prevent, you know,
judges accepting money from, you know,
campaign finance decision
to protect state courts.
And so, I would like to see, you know,
a lot, some reforms in these areas.
Making sure that trans
folks have, you know,
protections in court rules.
These can contribute to better judges,
more fairness in the
system, better confidence,
while at the same time,
we can draw the line
on some really bad people.
- Well, I think there's couple
of ways you can address this.
One, I think we have to all acknowledge
that putting aside the fact
that we're here on a panel
talking about judicial nominees
and that was the prior panel, too,
and that's why we're
having this conversation.
The rule of law, written
large in this country,
is under severe threat
and it is under attack constantly.
We have a leader at the
top of the administration
who attacks the justice
department, the FBI
on a regular basis and with venom.
And we have elected leaders
in the house and the senate
who won't stand up for that,
Democrats and Republicans alike.
Instead they get lost in partisanship,
and attacking each other instead
of united against threats
to our nation from the outside,
including from Russian, can't seem to find
a path forward on that effort.
In the House, it's pathetic
and it speaks poorly
of our elected leaders,
both Republican and Democrat alike.
So, we can spend a lot of
time talking about nominees
and judges and that's what
we're here to talk about
but the reality is, the
threat to the rule of law
is much more, much broader
and much more concerning,
I mean, we as a nation need
to come together and address.
One thing I think that would be helpful
is when we have groups of
both ideologies, right,
where we identify judges who are qualified
and how are capable and
who, while they may have
a judicial philosophy we don't agree with,
we can nonetheless find
a way forward to support
that will allows us to get
back to a better place.
And so, for example,
you take Antonin Scalia
and Ruth Bader Ginsberg,
both clearly people,
judicial ideologies that the other side
won't necessarily agree with.
They were both almost
unanimously confirmed
by the US Senate.
We have completely lost
that concept, right.
And that is partly
driven by outside groups
that can't find a path forward
to supporting highly qualified, capable,
although, perhaps nominees
you might disagree with,
support them.
Instead, there's a complete view of,
you must resist all of them
and support none, right?
That's true on both
sides and it's a problem
that if we're going to get passed
as folks on the outside,
that is one thing I think we've got to do.
And we've also got to
unite across partisan lines
to address the very real
threat on the rule of law
both from people within
our own executive branch
but also from the outside,
from outside organizations
like Russia and outside
countries like Russia,
which we are not effectively doing
'cause we can't get passed
our own partisanship
and that's a real problem.
- Purvine, any thoughts?
- Yeah, I'm not sure I
have thoughts on this
but the rule of law thing
makes me come back to a question
that I think we haven't touched upon
that you asked, Victoria,
about sort of separation,
the separation of powers bucket.
I think the rule of law, right,
is a conversation between
three branches of government
and one of the things I've begun to become
really concerned about
is we have six justices
on the Supreme Court whose largest chunk
of their professional
lives had been formed
by service to the executive branch, right.
You have, you know Kavanaugh,
Gorsich, Roberts, Alito,
Thomas and Kagan who really
have these substantial
executive branch and you
really only have Breyer
who had a congressional stint.
- Kagan, too.
- And Kagan had a small stint,
and then Thomas had two
years in the beginning
where he worked for Danforth.
- Right.
- The majority of their, sort of,
what you think of as formative
has been advocating for a branch
that's now involved in these disputes
and the rule of law ensures, you know,
is only ensured when you have
people willing to stick up
in these inter branch disputes.
And I'm concerned about
that sort of perspectives,
currently, that are informing people's...
- Yeah, it definitely shows
me that they're kind of,
they're institutional
contempt for congress, yeah.
- Or at least,
institutional sympathies.
(laughing)
- Right, exactly.
- Exactly.
- Yeah, any other questions?
- [Audience Member] Do you
think the court was better
in terms of composition when
you look at the war court
where you didn't have a
career path to the bench,
the Supreme Court bench that you have now.
I mean, the government in California,
a label rally organizer,
an SCC commissioner,
a former Ku Klux Klansmen,
Hugo Black is a Klansmen,
when he ran for state senate in Alabama.
Could you imagine a nominee today
before the Senate Judiciary Committee,
who, yeah, I was a Klansmen,
just picture me in the hood.
I mean it, you'd think
that I'd work better then
because you've got, if you were to predict
in 1948 that the Supreme Court would rule
like I did with Brown, with those people,
you would've said no way.
But now we're getting people who,
at 40, want to know what they're gonna do
for the rest of their lives
and that's kind of scary.
- It's interesting.
- Yeah, yeah.
- [Audience Member] Do you
think it was better then or now?
All four of you.
- Well, you think--
- [Announcer] Sorry.
- So I think you would think, right,
you would think that a more
professionalized judiciary
on the Supreme Court in particular,
and a judiciary that'd spend more time--
- [Audience Member] You're
gonna amplify you get a lawyer.
- No, no, no, I understand
but what I'm saying is--
- [Audience Member] But his
lawyer, you'll spin for.
- Right, you would think though,
that having the more professionalized,
having been away from
politics for longer, right.
Even these judges that you mentioned,
they had all been on
the bench for more time
then they had been in the executive
or legislative branches and yet,
it's odd because you would think
they would be more likely
to be more moderate,
more whatever, right.
But it seams to be the
case that perhaps not.
And I don't know how to explain that.
- Okay, we have one
last question from Wendy
and then we're gonna wrap it up.
- [Wendy] Okay, so this
might be long, so I'll be,
we're talking about the role of the Senate
and advice and consent but
part of what they're doing
is questioning the nominees.
The nominees, now, we
have a recent tradition
of not answering really any questions
about ideology that would
reflect any direction
of the judge's thinking.
So what is, do you think
that that's a good thing
or a bad thing, should that be rethought.
Is that correct for judicial independence?
And what happens when a nominee,
I mean if we, if there's
comment on the kerfuffle around
Justice Kavanaugh's
partisan leaning statements
and what does that mean also for,
in the same vein?
- Well, I think, you know, I
think it's unfortunate that
they've sort of conflated this idea
that you can't talk about a case
or an issue that might come before them
with long-standing, well
established precedent.
I'll just, you know, say that.
And I think it's unfortunate, disingenuous
and quite frankly,
within the case of Brown
a dog whistle to others who, frankly,
might want to bring a challenge
to the underpinnings of Brown
that years from now, 20 or 30 years from
when I'm on the bench, you
know, things will be good.
You know, so I think it's unfortunate,
I think it provides an
opportunity for a dog whistle.
I think it provides an opportunity
to sort of skate by.
I think the Senate could do
a better job following up
instead of just letting
them say things like,
you know, now they're saying it's
well established precedent,
well, precedent can be overturned.
You know, and so I think
we need to do a better job
holding their feet to the fire.
In terms of, you know,
Kavanaugh's performance,
I mean I think I said it before,
I think it reflected obviously to us
issues around credibility
that just were already there.
You know, there was nothing
new with that performance.
I think that it was
something that, I think,
signaled to the rest of the world,
those who are concerned about
impartiality and integrity,
that the court might be
undermined by that performance.
And I think that, people
like Nina Totenberg,
other, sort of,
establishment thinking folks
have that concern and I still share it,
that this process, how it happened,
the lack of fairness in it,
will ultimately, and we
aren't even talking about
whether or not there
should of been process
because from our perspective,
given the clout of this administration,
there should not have been a process.
But, I think all of that
goes to undermining,
potentially legitimacy of the court
and we should all be concerned about that.
- So, I know we've exceeded our time
and I want to thank the NYU Journal
of Legislation and Public Policy,
Brennan Center for Justice
and the NYU Law and Government Society
for putting this together.
(audience applauding)
I think it was great, really
appreciate everyone coming.
And we'll be around to, I think, probably,
to talk to anyone who's
got individual questions
for a little bit longer.
Although some people
have gotta hop on trains.
But thanks everyone for coming.
- Thank you.
- Thank you.
- Thanks.
