You know we we wanted to put it out before the election. We knew the supreme court would be an issue as it was in 2016., weren’t, quite uh, expecting a justice to die six weeks before the election, but uh. I was talking to the ceo of my publisher i’m. Like do you have an alibi for for that friday? He says: well, look there’s, there’s, nothing! I won’t do for my authors, um. So thanks very much for having me um. I i much enjoyed my my one and only visit to australia two years ago to speak at the friedman, uh conference, and i i got to see a fair bit of the country um. I would love to come back once once the virus allows um. I started. Writing this book or the concept of this book, i wanted to do something on the supreme court two years ago, uh after the brett kavanaugh confirmation process – and i thought gosh – this is about as as bad as things can get well unless they get worse uh. But i wanted to see you know: how did we get here? What role has politics played? You know a lot of people who follow public affairs know the history going in america. You know the history going back to robert bork in 1987, who i’ll get to in a moment uh. But what about earlier than that – and i saw i wanted to go right to the very beginning of the republic and i wanted to learn how do we get to where we are? Where do we go from here? What can or or should be done? Um and uh, let me start with uh, with a vignette um go back to the early sixties.

Um. There was an opening in march 1962 and john f kennedy had his first opportunity to shape the high court, the youthful president selected, a man of his own generation. Byron white white had met jfk in england while on a rhodes scholarship after having been runner up for the heisman trophy that’s uh the award given to the best american football collegiate american football player and spending a year as the highest paid player in the nfl. The uh, the american football league and uh, and the two became fast friends white was just 45 years old and the deputy attorney general under robert f kennedy. He was formally nominated april 3rd 1962.. Eight days later, he had his confirmation hearing a quick 90 minutes, including introductions and supporting testimony from bar association officials. What questioning there was largely concerned. The nominee’s storied football career, whizzer white, as his nickname went, was surely the last person to play a professional sport while attending yale law school. The judiciary committee unanimously approved him and later that day, so did the senate as a whole on a voice vote times have changed. So, as i was saying, the the battle to confirm brett kavanaugh two years ago showed that the supreme court is part of the same toxic cloud that envelops all of the nation’s public discourse. Ironically, kavanaugh was picked because he was thought to be a safe nominee with a long public career that had been vetted numerous times.

He was firmly part of the legal establishment inside the beltway around washington, specifically its conservative mainstream, and he had displayed kind of a a political caginous that made some uh on the right. Worry that he’d be too much like john roberts, rather than anton scalia or clarence. Thomas as it turned out of course, 11th hour, sexual assault allegations transformed what was already a contentious process into a partisan, rorschach test and all told kavanaugh faced a smear campaign. Unlike any scene. Since robert bork senate democrats had warned president reagan that nominating bork, who was a judge on the d.c circuit, the second most prestigious court after a uh storied academic and government career, that nominating him, would provoke a fight, unlike any he had faced. Even after scalia had been confirmed unanimously the year before now republicans controlled the senate in 86, then they lost it in the in that election. There were some other reasons for that, but anyway, on the very day that reagan nevertheless announced bork as his pick. This is uh june 1987 ted kennedy. Senator ted kennedy went to the senate floor to denounce robert bork’s america, which is this parade of horribles where all these uh, you know regress in our society happen, and it went downhill from there as the brusque bork. With kind of a brust and unkempt beard refused to adopt the uh now well worn strategy of talking a lot without saying anything, there’s now a playbook.

If any of you watched clips of the amy coney barrett hearings. Last week i mean she executed it to a t and ruth bader ginsburg, actually kind of patterned. This. This playbook refined the tactic into a pincer movement where you refuse to comment in specific fact patterns because they might come before the court and then also refuse to discuss general constitutional philosophy, because a judge should only deal in specifics. Confirmation processes weren’t like this: the senate didn’t even hold public hearings on nominees until 1916, which was a very tumultuous year. The first jewish nominee, louis brandeis, was also a a crusading progressive, very controversial for his legal policy views longest confirmation process that we’ve had nearly five months. Although the eventual vote was a little wider than some of the more modern ones, but also after he was confirmed. One of his colleagues, a sitting justice resigned to run against woodrow wilson in that fall’s presidential election. So if you think 2020 or 2016 were bad in terms of presidential politics in the supreme court yeah, i see that and i’ll raise you in 1916., but nominees didn’t. Even testify at their own hearings on a regular basis until the 50s uh brandeis didn’t testify that was seen as unseemly, but they didn’t start regularly appearing until the 50s, when southern democratic senators were concerned about desegregation and civil rights and and that sort of thing, as I mentioned in 1962 the part of byron white’s hearing where the nominee himself testified lasted about 15 minutes.

So the confirmation process wasn’t the spectacle that it is today but nominations to the highest court – were actually contentious. Political struggles from the very beginning for the republic’s first century, uh, battles that included withdrawn or postponed nominations, or those on which the senate failed to act. So, like merrick garland in 2016 four years ago that wasn’t unprecedented, they were fairly regular occurrence. George washington had a chief justice nominee rejected, as did james madison john quincy adams, who himself declined a nomination. There were several people who declined even after they were confirmed. The way communications were back then. Sometimes you didn’t learn. You were confirmed, let alone nominated until a while later, when you got a messenger and then prominent lawyers in boston or philadelphia would say. Why would i want that job you had to be in the senate basement? It was low prestige, i mean, etc. Anyway, john quincy adams had a nominee quote postponed indefinitely: love that senate procedure right uh andrew jackson, then had a nominee thwarted. But then there was a change in the senate which allowed roger tawny to become chief justice and eventually, author dred scott that’s. A very controversial opinion in 1848 that hastened the arrival of the civil war john tyler, who assumed the presidency in 1841 after the one month presidency of william henry harrison, he caught pneumonia, giving a very long inaugural address on a on a wintry march morning when the Inauguration was in march rather than january, and died a month later and so john tyler who’s kind of a political compromise was uh was homeless, as a matter of party uh was was seen as illegitimate in the senate rejected or declined to act.

Four of his nominees three of them twice before finally, confirming one most 19th century presidents had had trouble confirming nominees and in the 20th century presidents harding hoover, eisenhower, johnson, nixon and reagan all had failed nominations. Fdr franklin, roosevelt, never had anyone rejected, but his court packing plan was hugely unpopular after fdr was re elected in a landslide in 1936, winning all, but two states uh. He was frustrated. The supreme court was rejecting his new deal programs, his new federal programs, and things like that. So he proposed to add six justices to help out the old men who couldn’t do their jobs properly hugely unpopular. His own vice president, campaigned against it and eventually ran against him in the primary. At the next presidential, the chief justice uh came out publicly against it and louis brandeis that great progressive, who was a big ally of fdr, came out against it. The democrats ended up losing 80 seats in the house and eight in the senate, purely based on this court packing, but fdr managed to pack the court, the old fashioned way by keeping power and the democrats kept power in the senate and three years later by 1941. He had appointed seven of the nine justices, so that’s the formula, the winning formula really lyndon johnson. In 1968, his proposed elevation of justice abe fortis who was such a consigliere such an advisor. He would even like sit on meetings on what parts of vietnam to bomb.

Let alone legal advice right anyway, that led to the only successful filibuster of a supreme court nominee, although it wasn’t really a filibuster bipartisan opposition based on ethical concerns and other things he didn’t even have majority support in the senate, let alone some super majority to pass A filibuster and then douglas ginsburg when bork was rejected. Douglas ginsburg was the next nominee, although he withdrew before president reagan could send his name to the senate for having smoked marijuana with his law students. I call him the last public casualty of the drug war when you think about it. I don’t think there’s any public official who suffered for uh it getting out that he smoked uh marijuana when he was younger in the last 30 years and then of course, there’s merrick garland. Who is the first nominee the senate allowed to expire since 1881. But then, the last time, the senate, controlled by the party opposite to the rising in a presidential election year, was 1888. turns out. Whether the senate and the white house are controlled by the same party is, is a rather important fact in our history, when it’s united government, the confirmation rate’s about 90, when it’s divided it’s less than 60 percent and that’s even more stark that difference in presidential election Years, uh, where, if it’s united 17 of 19 have gotten confirmed when it’s divided only two of ten. So as we know four years ago, senate majority leader mitch mcconnell his gamble worked.

Not only did not giving garland a a vote or a hearing not hurt vulnerable senators running for re election, but it held the republicans together and provided the margin for donald trump in key states and then trump rewarded. His electoral coalition, with the nomination of neil gorsuch, who was confirmed only after the the senate, decided on a party line vote to exercise the so called nuclear option, removing the filibuster. The super majority requirement to move to a vote on the on the final uh bill. On the nomination, opportunities for obstruction have continued push down to arcane parliamentary procedures, even as, as i said, control of the senate remains by far the most important aspect of the whole endeavor, most significantly by filibustering. Gorsuch democrats destroyed their leverage over more consequential vacancies. Moderate republican senators wouldn’t have gone for a nuclear option to seek kavanaugh in place of the moderate swing vote anthony kennedy, but they didn’t face that dilemma and they’re not facing it now with trump getting the opportunity to have an even bigger shift, replacing the progressive ginsburg With the more conservative barrett given the battles, we saw over gorsuch and kavanaugh too many people now think of the justices in partisan terms. That’S too bad, but not a surprise when you have contrasting methods of constitutional and statutory interpretations that now largely map onto party identification. At a time when the parties are more ideologically sorted than at least the civil war, if not ever that’s, why we fundamentally have these big battles every time there’s a vacancy, but why do we have the focus on this one office? Even though it’s a high office, you know if the secretary of state uh died or resigned in you know in the last year of the obama presidency this year it certainly would have been a big deal, but there’s, no doubt that the slot would have been filled.

If someone with appropriate credentials were nominated but, of course, executive appointments expire at the end of a presidency, while judicial appointments are for life under our constitution and they outlast any president. Our president has few constitutional powers more important than appointing judges. Justice scalia served nearly 30 years on the high court, giving president reagan’s legal agenda abridged the 21st century. Four years ago there was a big ruling on non profit donor. Disclosures i’m sure an issue that all of you can relate to, but it was made by a district judge appointed by lyndon johnson. When i give this, i talk about this to the law students it might as well be andrew johnson right, ancient history. Pundits always argue that judicial nominations should be among voters primary considerations when choosing a president. Well, the court’s future truly did hang in the balance in 2016.. If hillary clinton had been making these nominations, then uh our law would have been going in a much different direction. Um – and that goes just as much or more for the lower courts which decide 50 or 60 000 cases annually, even as the supreme court decides like 60 to 70 every four year term, the president appoints between 20 25 of the judiciary to put another way when Obama took office only one of the 13 federal circuits. The appellate courts had a majority of judges appointed by democratic presidents when he left nine did trump’s partly reversed that now flipping three circuits and getting a record 30 circuit judges confirmed in his first two years about the same as bush and obama combined at that point.

He’S had 53 overall, where obama had 55 in two terms, that’s better than anyone in one term except jimmy carter, for whom congress created new judgeships as a consolation for not having any supreme court vacancies. But even if politics has always been part of the process and even if more justices were rejected in our country’s first century than its second, we still feel that something is different. Now you know, is it tv and twitter, the viral video, the 24 hour news cycle have legal issues gotten more divisive? No, i you know the this whole process. It hasn’t somehow changed beyond the framers recognition, and political rhetoric was as nasty in 1820 as it is in 2020. If you want to have some fun. Google jefferson adams election campaign, videos, someone put together these modern style, ads uh, based on the pamphlets and speeches in 1800, it’s, it’s, hilarious and just as nasty or more than the rhetoric used now. Senatorial brinksmanship is symptomatic of a larger problem, as government has grown, so have the laws that courts interpret and their reach over ever more of our lives, and so the court self corruption, aiding and abetting the expansion of federal power and then shifting that power away from The people’s representatives and toward executive branch, administrative agencies, and so the court is called upon to decide these huge political controversies. Every year the judiciary affects public policy more than it ever did, and those decisions increasingly turn on the party of the president, who nominated the judge or justice.

So the courts play more of a role in the political process. Of course um this, the the process is going to be then more fraught with uh partisan considerations, it’s a modern phenomenon again for our parties to be both ideologically sorted and polarized, and thus for judges nominated by presidents from different parties to have markedly different constitutional visions. What can be done about this? You know: reform proposals abound i’m, i’m moderately in favor of or amenable to term limits that would at least get rid of these morbid health watches for octogenarian justices or politically timed retirements, but it wouldn’t change the ideological balance of the court. It wouldn’t change the power it has to rule over these important issues uh every year, so yeah it would. It would help with public confidence or measures of legitimacy. I suppose uh get rid of these uh arbitrary vacancies that thrower politics awry, but it wouldn’t change the the overall functioning of the court and there are all sorts of other solutions that are either unworkable or would further politicize the court rather than deep politicizing it. The only lasting solution to what ails our body juridic is to return to the founders constitution by rebalancing and devolving power, so washington, isn’t making so many big decisions for the whole country. All of these reform proposals are nibbling around the edges. They’Re they’re rearranging the deck chairs on the titanic, because the titanic isn’t the process it’s the product, it’s a ship of state.

You know de politicizing, the judiciary and toning down. Our confirmations is a laudable goal, but that’ll happen only when judges go back to, judging, rather than bending over backwards to ratify the constitutional abuses of the other branches. So only by devolving power back to the states and the people and the localities and within washington, making congress make the tough decisions debate. Those issues, rather than passing the truth, beauty and goodness act of 2020 and letting the bureaucrats fill in the rules that harm people and then they get sued, and that goes to the courts. Only that way, uh in the long term will we solve this issue of the the toxicity of the process. Ultimately, judicial power isn’t a means to an end, but in enforcement mechanisms for the strictures of a founding document intended just as much to curtail the excesses of democracy as to empower its exercise. And so the reason we have these heated court battles is that the federal government is simply making too many decisions at a national level. For such a large, diverse and pluralistic society. I think there’s. No more reason there needs to be a one. Size fits all health care system, for example, than that zoning laws be uniform in every city, and so you know let texas be texas and california, be california. That’S.

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