WEBVTT - Donald Trump Will Have Profound Impact on High Court (Audio)

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<v Speaker 1>The Supreme Court was poised to have a democratic appointed

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<v Speaker 1>majority for the first time since nineteen or so it

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<v Speaker 1>seemed until Donald trumps stunning victory yesterday in the presidential election.

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<v Speaker 1>Now the Republican will get to fill the pending Supreme

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<v Speaker 1>Court vacancy, and with three justices seventy eight or older,

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<v Speaker 1>he may get additional appointments that will shape the Court

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<v Speaker 1>for decades. What kind of justices will Trump appoint He

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<v Speaker 1>has said they will be in the mole of antonin Scalia,

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<v Speaker 1>the conservative icon who died in February, and Trump has

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<v Speaker 1>promised his justices will protect gun rights and be willing

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<v Speaker 1>to overturn the ree View Wade abortion rights ruling. This

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<v Speaker 1>is what he said at the final presidential debate. The

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<v Speaker 1>justices that I'm going to a point will be pro life.

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<v Speaker 1>They will have a conservative bent. They will be protecting

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<v Speaker 1>the Second Amendment. They are great scholars in all cases,

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<v Speaker 1>and they are people of tremendous respect. They will interpret

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<v Speaker 1>the Constitution the way the founders wanted it interpreted. So

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<v Speaker 1>what will this mean for the for the Constitution and

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<v Speaker 1>American law. We'll talk with two people with very different

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<v Speaker 1>perspectives on that. Elizabeth Widra as president of the liberal

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<v Speaker 1>Constitutional Accountability Center. Kerrie Savarino is Chief council and Policy

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<v Speaker 1>director of the Conservative Judicial Crisis Network. Elizabeth, I'm gonna

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<v Speaker 1>start with you. I know you are very disappointed with

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<v Speaker 1>the election results. Uh, Now that depending vacancy is going

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<v Speaker 1>to be filled by Donald Trump and not Barack Obama

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<v Speaker 1>or Hillary Clinton, what do you anticipate will be the

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<v Speaker 1>short term immediate impact on the court. Thank you so much,

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<v Speaker 1>Greig for having me on your show today. Yeah, you know,

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<v Speaker 1>I mean, obviously, yesterday we were hoping and looking forward

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<v Speaker 1>to a potential progressive majority on the Supreme Court that

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<v Speaker 1>would restore the constitution and course correct for some of

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<v Speaker 1>these aggressive conservative rulings that we've seen out of the

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<v Speaker 1>Roberts Court over the past decade or so. But I

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<v Speaker 1>think it's important to remember that with this ninth justice,

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<v Speaker 1>who will be UM confirmed to the core it if

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<v Speaker 1>it's a nominee, and you know, Mark Gartland is still

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<v Speaker 1>pending before the Senate. Um. The President Obama appointed, i

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<v Speaker 1>mean nominated him in accordance with his constitutional duty to

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<v Speaker 1>do so, and his nomination is still pending. UM. Although

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<v Speaker 1>I don't think UM any of us who have listened

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<v Speaker 1>to the Senate Republicans recently think that they are going

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<v Speaker 1>to be responsible and act on that. But regardless, if

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<v Speaker 1>there is a ninth justice that is appointed by President

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<v Speaker 1>elect Trump to the Supreme Court, we're back in the

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<v Speaker 1>world that we were in before Justice Gale is passing,

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<v Speaker 1>where we have a five to four conservative majority, but

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<v Speaker 1>with justices like Anthony Kennedy and Chief Justice John Roberts

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<v Speaker 1>who sometimes do side with the more liberal justices to

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<v Speaker 1>reach progressive rulings. We in that context saw the marriage

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<v Speaker 1>equality ruling. We saw the ruling just last term that

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<v Speaker 1>vindicated a woman's right to choose an abortion and strike

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<v Speaker 1>down state laws that basically tried to make an end

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<v Speaker 1>run around the const juician and put limits on the

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<v Speaker 1>right to choose an abortion. So I think right now

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<v Speaker 1>we need to remember that, Yes, for progressive like myself

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<v Speaker 1>who might be disappointed that we are not looking forward

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<v Speaker 1>to a progressive majority, we still are in the world

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<v Speaker 1>where it is possible to have progressive victories in the Court. Um.

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<v Speaker 1>We also saw the affirmative Action ruling, with Justice Kennedy

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<v Speaker 1>siding with the more liberal justices last terms. So while

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<v Speaker 1>I think we are rightly concerned that there could be

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<v Speaker 1>setbacks in the march of progress we've seen recently toward

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<v Speaker 1>rights and protections for LGBTQ Americans, progress toward greater racial

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<v Speaker 1>equality and justice, progress toward including the rights of everyday

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<v Speaker 1>Americans in the Supreme Court sturisprudence, and not just solicitous

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<v Speaker 1>behavior toward corporate interests at the High Court. You know,

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<v Speaker 1>it is a disappointing day, but there is still hope. Well,

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<v Speaker 1>carry during the campaign now, President elect Trump released a

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<v Speaker 1>list of judges he said he would consider appointing, and

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<v Speaker 1>it was widely seen at the time as a list

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<v Speaker 1>that was meant to make conservatives comfortable with who he

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<v Speaker 1>would appoint to the court. How confident should people be

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<v Speaker 1>that he's going to actually use this list or pick

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<v Speaker 1>somebody off this list when he had when he makes

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<v Speaker 1>an appointment. Well, I think it was a historic move

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<v Speaker 1>actually for presidential nominee to put a Supreme Court list

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<v Speaker 1>like that out, and I have confidence in it, largely

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<v Speaker 1>because we see the impact it did have on the election.

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<v Speaker 1>Many of the exit polls are showing that the Supreme

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<v Speaker 1>Court was the top issue for over one fifth of

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<v Speaker 1>the voters. That is huge, and I'm not sure we've

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<v Speaker 1>ever seen that kind of influence that the Supreme Court

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<v Speaker 1>has had on a presidential election of the past. I

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<v Speaker 1>think Trump will recognize that that this is really, in

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<v Speaker 1>many ways what put him in office, and that people

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<v Speaker 1>were very concerned about the kind of justice that Hillary

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<v Speaker 1>Clinton would appoint, uh, particularly because it would give the

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<v Speaker 1>Court a solid five vote lib role majority. Now Elizabeth

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<v Speaker 1>is referred to I have to laugh that she would

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<v Speaker 1>call the court currently an aggressively conservative court, because it's

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<v Speaker 1>clearly not. It's clearly a four or four one court.

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<v Speaker 1>And um, we have four conservative votes, four liberal votes

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<v Speaker 1>who are much more consistent in their um, you know,

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<v Speaker 1>in their group identity as liberals than the conservatives are.

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<v Speaker 1>And then Anthony Kennedy, who in recent terms has been

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<v Speaker 1>shifting dramatically to the left. Last term, the highest agreement

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<v Speaker 1>between Justice and the Court was between Kennedy and and

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<v Speaker 1>Briar and Kage. Now this is someone who is clearly

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<v Speaker 1>not not a conservative justice. He is a swing vote

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<v Speaker 1>who is tending ever more liberal. If UH Trump picked

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<v Speaker 1>someone off of one of the piece candidates on his

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<v Speaker 1>list of nominees, I suspect it will be someone who

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<v Speaker 1>has a very similar judicial philosophy to Justice Scalia. So

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<v Speaker 1>assuming they are equally conservative to Scalia, that leaves the

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<v Speaker 1>court um where it what's the four four or for

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<v Speaker 1>one split. That's the same aggressively conservative court rights that

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<v Speaker 1>gave you up held Obamacare, that you know that that

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<v Speaker 1>had the abortion decision, that that nationalize same sex marriage

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<v Speaker 1>and constitutionalize that issues. So I really don't think much

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<v Speaker 1>will change in the short term, though, of course, there

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<v Speaker 1>probably will be additional Supreme Court nominations coming up. And

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<v Speaker 1>we can't forget that about half of the seats on

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<v Speaker 1>the Courts of Appeals as with an auguration day will

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<v Speaker 1>be either vacant or we'll have judges that are eligible

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<v Speaker 1>to take seeing your status, and so there's a huge

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<v Speaker 1>opportunity um for Trump to appoint constitutionalist judges who will

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<v Speaker 1>take the text and history of the Constitution seriously um

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<v Speaker 1>into their decisions as well. We'll talk a little more

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<v Speaker 1>in a minute about the possibility of additional vacancies, Elizabeth.

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<v Speaker 1>We have only have about a minute right now. But um,

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<v Speaker 1>given what you're you're talking about, Marrior Garland, and I

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<v Speaker 1>know you are disappointing with the way Senate Republicans handled

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<v Speaker 1>that nomination. Uh, if if Donald Trump nominates somebody like

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<v Speaker 1>like someone Carry was describing, how would you want Senate

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<v Speaker 1>Democrats to treat that nomination? You know, I think that

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<v Speaker 1>the way that Senate Democrats have treated nominations in the past,

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<v Speaker 1>which is to give a vigorous review to the record

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<v Speaker 1>of the nominee. And I think, you know, we'll cross

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<v Speaker 1>that bridge when we get to it. I don't know, honestly,

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<v Speaker 1>if Trump will choose someone from his list. I think

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<v Speaker 1>it is one of the many unknowns of the potential

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<v Speaker 1>of the upcoming Trump administration, whether he'll choose someone from

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<v Speaker 1>that list or not, and what that nomination looks like.

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<v Speaker 1>It's basically a very unknown world. And for an institution

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<v Speaker 1>like the Supreme Court, which likes to think of itself

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<v Speaker 1>as very stable, it's rather concerning Carry. The three oldest

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<v Speaker 1>justices Ginsburgh, Kennedy, and Briar, I think we all agree,

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<v Speaker 1>are either on the left or in the center of

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<v Speaker 1>the court. So if if Donald Trump gets to replace

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<v Speaker 1>a couple of them in addition to filling the current vacancy,

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<v Speaker 1>what what are we going to see? Are we going

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<v Speaker 1>to see a court that overturns the Aberga Fell Game

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<v Speaker 1>marriage ruling, overturns the Vieway dibortion rights ruling. And is

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<v Speaker 1>that really what you think the American public what was

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<v Speaker 1>looking for with this with this election? Well, I think

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<v Speaker 1>what they were looking for is certainly to prevent a

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<v Speaker 1>dominant liberal majority from from running the table on a

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<v Speaker 1>lot of issues that the Constitution doesn't speak to, whether

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<v Speaker 1>it be same sex marriage, etcetera. Um, I don't know. Actually,

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<v Speaker 1>it'll be interesting to see how if those justices are replaced,

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<v Speaker 1>how that will affect the court. Historically, Republicans have been

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<v Speaker 1>much more, much less effective in in in having fully

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<v Speaker 1>vetted nominees that really do have a consistent, uh conservative

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<v Speaker 1>judicial philosophy on the court, so for many years, But

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<v Speaker 1>that's not the lack of trying your part. Absolutely. I

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<v Speaker 1>think that's why I was encouraged seeing Trump list, because

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<v Speaker 1>that did seem to show people with more evidence that

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<v Speaker 1>they actually had the judicial philosophy as they put into

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<v Speaker 1>practice and weren't just speaking to it. Because for so

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<v Speaker 1>many years we had a Republican dominated the Preme Court

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<v Speaker 1>Republican and point he dominated that was in fact, many

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<v Speaker 1>of the Republican points were the most global members of

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<v Speaker 1>the Court, you know, like like a Justice Suitor or

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<v Speaker 1>Justice John Paul Stephens. So I think it'll be interesting

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<v Speaker 1>to see if that trend changes. I hope it does change, because, um,

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<v Speaker 1>I don't think we that the American will want a

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<v Speaker 1>court that will continue to put policy preferences before the constitutions.

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<v Speaker 1>And I hope we'll just see the court, you know,

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<v Speaker 1>call the decisions as they are and and stick with

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<v Speaker 1>what the constitution actually says Elizabeth. Earlier this year, liberals

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<v Speaker 1>kind of breathed a sigh of relief when the Supreme

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<v Speaker 1>Court deadlock four to four in a case called Friedrichs

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<v Speaker 1>that was about whether public sector unions could get mandatory

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<v Speaker 1>dues from public sector workers, and there was it seemed

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<v Speaker 1>as though the Court was poised before Justice Scali had died,

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<v Speaker 1>to overturn that decision and weakend public sector unions. Can

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<v Speaker 1>we expect something like that to come back to the

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<v Speaker 1>court now, when there's going to be a conservative majority again.

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<v Speaker 1>I would expect that the lawyers who are litigating the

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<v Speaker 1>public sector union induced case from the corporate side are

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<v Speaker 1>very eager to get the case back up before a

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<v Speaker 1>conservative dominated Supreme Court and I think that's one of

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<v Speaker 1>the things that UM, I'm concerned about. We've seen the

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<v Speaker 1>Roberts Court being the most pro corporate court in the

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<v Speaker 1>modern era, and I think, if you know, one of

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<v Speaker 1>the areas to watch is exactly the corporate space, because

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<v Speaker 1>we have rulings UM that could come from the Court

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<v Speaker 1>that are harmful to employee safety. UM discrimination rules allowing

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<v Speaker 1>employees to band together through class actions to hold corporations

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<v Speaker 1>accountable for wrongdoing employees and consumers being able to do that,

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<v Speaker 1>and that's one of the things that I think would

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<v Speaker 1>be different UM if you have a ninth justice appointed

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<v Speaker 1>by a Trump presidency, UM, and also if you have

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<v Speaker 1>more nominees coming down the pike. I will say that

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<v Speaker 1>when carry talks about justices who will respect the text

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<v Speaker 1>and history of the Constitution UM, and Donald Trump promising

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<v Speaker 1>to do so, I certainly hope that he does, because

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<v Speaker 1>when I look at the Constitution, I see a document

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<v Speaker 1>that is inherently progressive, one that has been amended over

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<v Speaker 1>our country's history to become more equal, more just, more

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<v Speaker 1>inclusive by removing the stain of slavery and including people

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<v Speaker 1>who were excluded from our founding promise, like women people

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<v Speaker 1>of color as the poor. And so I think that

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<v Speaker 1>the American people, when they look at the results of

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<v Speaker 1>this election on the Supreme Court, should hold the justices

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<v Speaker 1>and a President Trump to that constitutional text in history.

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<v Speaker 1>Carry We only have about thirty seconds, but I'll give

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<v Speaker 1>you the last work is I'm sure you want to

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<v Speaker 1>respond to what Elizabeth just said. Sure, I absolutely agree

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<v Speaker 1>the whole Constitution, all its amendments are what the court

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<v Speaker 1>should be looking at um. But but we can't read

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<v Speaker 1>into those amendments just where we wish the Constitution the

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<v Speaker 1>country would be. If the nation wants to amend the

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<v Speaker 1>Constitution again, absolutely in should douced to. But there's a

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<v Speaker 1>process for that, and that's Article five. By passing an amendment,

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<v Speaker 1>we don't shouldn't have unelected judges doing that by simply

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<v Speaker 1>reading in their favorite policy preferences. So hopefully we'll have

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<v Speaker 1>judges who can put their politics aside, so whatever their

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<v Speaker 1>personal politics are, they can fix with the constitution. Says

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<v Speaker 1>thank you so much to our guest Carrie Savarino the

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<v Speaker 1>Judicial Crisis Network Elizabeth Wadra of the Constitutional Accountability Center.

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<v Speaker 1>This debate will surely continue