Speaker 1: The Supreme Court was poised to have a democratic appointed
Speaker 1: majority for the first time since nineteen or so it
Speaker 1: seemed until Donald trumps stunning victory yesterday in the presidential election.
Speaker 1: Now the Republican will get to fill the pending Supreme
Speaker 1: Court vacancy, and with three justices seventy eight or older,
Speaker 1: he may get additional appointments that will shape the Court
Speaker 1: for decades. What kind of justices will Trump appoint He
Speaker 1: has said they will be in the mole of antonin Scalia,
Speaker 1: the conservative icon who died in February, and Trump has
Speaker 1: promised his justices will protect gun rights and be willing
Speaker 1: to overturn the ree View Wade abortion rights ruling. This
Speaker 1: is what he said at the final presidential debate. The
Speaker 1: justices that I'm going to a point will be pro life.
Speaker 1: They will have a conservative bent. They will be protecting
Speaker 1: the Second Amendment. They are great scholars in all cases,
Speaker 1: and they are people of tremendous respect. They will interpret
Speaker 1: the Constitution the way the founders wanted it interpreted. So
Speaker 1: what will this mean for the for the Constitution and
Speaker 1: American law. We'll talk with two people with very different
Speaker 1: perspectives on that. Elizabeth Widra as president of the liberal
Speaker 1: Constitutional Accountability Center. Kerrie Savarino is Chief council and Policy
Speaker 1: director of the Conservative Judicial Crisis Network. Elizabeth, I'm gonna
Speaker 1: start with you. I know you are very disappointed with
Speaker 1: the election results. Uh, Now that depending vacancy is going
Speaker 1: to be filled by Donald Trump and not Barack Obama
Speaker 1: or Hillary Clinton, what do you anticipate will be the
Speaker 1: short term immediate impact on the court. Thank you so much,
Speaker 1: Greig for having me on your show today. Yeah, you know,
Speaker 1: I mean, obviously, yesterday we were hoping and looking forward
Speaker 1: to a potential progressive majority on the Supreme Court that
Speaker 1: would restore the constitution and course correct for some of
Speaker 1: these aggressive conservative rulings that we've seen out of the
Speaker 1: Roberts Court over the past decade or so. But I
Speaker 1: think it's important to remember that with this ninth justice,
Speaker 1: who will be UM confirmed to the core it if
Speaker 1: it's a nominee, and you know, Mark Gartland is still
Speaker 1: pending before the Senate. Um. The President Obama appointed, i
Speaker 1: mean nominated him in accordance with his constitutional duty to
Speaker 1: do so, and his nomination is still pending. UM. Although
Speaker 1: I don't think UM any of us who have listened
Speaker 1: to the Senate Republicans recently think that they are going
Speaker 1: to be responsible and act on that. But regardless, if
Speaker 1: there is a ninth justice that is appointed by President
Speaker 1: elect Trump to the Supreme Court, we're back in the
Speaker 1: world that we were in before Justice Gale is passing,
Speaker 1: where we have a five to four conservative majority, but
Speaker 1: with justices like Anthony Kennedy and Chief Justice John Roberts
Speaker 1: who sometimes do side with the more liberal justices to
Speaker 1: reach progressive rulings. We in that context saw the marriage
Speaker 1: equality ruling. We saw the ruling just last term that
Speaker 1: vindicated a woman's right to choose an abortion and strike
Speaker 1: down state laws that basically tried to make an end
Speaker 1: run around the const juician and put limits on the
Speaker 1: right to choose an abortion. So I think right now
Speaker 1: we need to remember that, Yes, for progressive like myself
Speaker 1: who might be disappointed that we are not looking forward
Speaker 1: to a progressive majority, we still are in the world
Speaker 1: where it is possible to have progressive victories in the Court. Um.
Speaker 1: We also saw the affirmative Action ruling, with Justice Kennedy
Speaker 1: siding with the more liberal justices last terms. So while
Speaker 1: I think we are rightly concerned that there could be
Speaker 1: setbacks in the march of progress we've seen recently toward
Speaker 1: rights and protections for LGBTQ Americans, progress toward greater racial
Speaker 1: equality and justice, progress toward including the rights of everyday
Speaker 1: Americans in the Supreme Court sturisprudence, and not just solicitous
Speaker 1: behavior toward corporate interests at the High Court. You know,
Speaker 1: it is a disappointing day, but there is still hope. Well,
Speaker 1: carry during the campaign now, President elect Trump released a
Speaker 1: list of judges he said he would consider appointing, and
Speaker 1: it was widely seen at the time as a list
Speaker 1: that was meant to make conservatives comfortable with who he
Speaker 1: would appoint to the court. How confident should people be
Speaker 1: that he's going to actually use this list or pick
Speaker 1: somebody off this list when he had when he makes
Speaker 1: an appointment. Well, I think it was a historic move
Speaker 1: actually for presidential nominee to put a Supreme Court list
Speaker 1: like that out, and I have confidence in it, largely
Speaker 1: because we see the impact it did have on the election.
Speaker 1: Many of the exit polls are showing that the Supreme
Speaker 1: Court was the top issue for over one fifth of
Speaker 1: the voters. That is huge, and I'm not sure we've
Speaker 1: ever seen that kind of influence that the Supreme Court
Speaker 1: has had on a presidential election of the past. I
Speaker 1: think Trump will recognize that that this is really, in
Speaker 1: many ways what put him in office, and that people
Speaker 1: were very concerned about the kind of justice that Hillary
Speaker 1: Clinton would appoint, uh, particularly because it would give the
Speaker 1: Court a solid five vote lib role majority. Now Elizabeth
Speaker 1: is referred to I have to laugh that she would
Speaker 1: call the court currently an aggressively conservative court, because it's
Speaker 1: clearly not. It's clearly a four or four one court.
Speaker 1: And um, we have four conservative votes, four liberal votes
Speaker 1: who are much more consistent in their um, you know,
Speaker 1: in their group identity as liberals than the conservatives are.
Speaker 1: And then Anthony Kennedy, who in recent terms has been
Speaker 1: shifting dramatically to the left. Last term, the highest agreement
Speaker 1: between Justice and the Court was between Kennedy and and
Speaker 1: Briar and Kage. Now this is someone who is clearly
Speaker 1: not not a conservative justice. He is a swing vote
Speaker 1: who is tending ever more liberal. If UH Trump picked
Speaker 1: someone off of one of the piece candidates on his
Speaker 1: list of nominees, I suspect it will be someone who
Speaker 1: has a very similar judicial philosophy to Justice Scalia. So
Speaker 1: assuming they are equally conservative to Scalia, that leaves the
Speaker 1: court um where it what's the four four or for
Speaker 1: one split. That's the same aggressively conservative court rights that
Speaker 1: gave you up held Obamacare, that you know that that
Speaker 1: had the abortion decision, that that nationalize same sex marriage
Speaker 1: and constitutionalize that issues. So I really don't think much
Speaker 1: will change in the short term, though, of course, there
Speaker 1: probably will be additional Supreme Court nominations coming up. And
Speaker 1: we can't forget that about half of the seats on
Speaker 1: the Courts of Appeals as with an auguration day will
Speaker 1: be either vacant or we'll have judges that are eligible
Speaker 1: to take seeing your status, and so there's a huge
Speaker 1: opportunity um for Trump to appoint constitutionalist judges who will
Speaker 1: take the text and history of the Constitution seriously um
Speaker 1: into their decisions as well. We'll talk a little more
Speaker 1: in a minute about the possibility of additional vacancies, Elizabeth.
Speaker 1: We have only have about a minute right now. But um,
Speaker 1: given what you're you're talking about, Marrior Garland, and I
Speaker 1: know you are disappointing with the way Senate Republicans handled
Speaker 1: that nomination. Uh, if if Donald Trump nominates somebody like
Speaker 1: like someone Carry was describing, how would you want Senate
Speaker 1: Democrats to treat that nomination? You know, I think that
Speaker 1: the way that Senate Democrats have treated nominations in the past,
Speaker 1: which is to give a vigorous review to the record
Speaker 1: of the nominee. And I think, you know, we'll cross
Speaker 1: that bridge when we get to it. I don't know, honestly,
Speaker 1: if Trump will choose someone from his list. I think
Speaker 1: it is one of the many unknowns of the potential
Speaker 1: of the upcoming Trump administration, whether he'll choose someone from
Speaker 1: that list or not, and what that nomination looks like.
Speaker 1: It's basically a very unknown world. And for an institution
Speaker 1: like the Supreme Court, which likes to think of itself
Speaker 1: as very stable, it's rather concerning Carry. The three oldest
Speaker 1: justices Ginsburgh, Kennedy, and Briar, I think we all agree,
Speaker 1: are either on the left or in the center of
Speaker 1: the court. So if if Donald Trump gets to replace
Speaker 1: a couple of them in addition to filling the current vacancy,
Speaker 1: what what are we going to see? Are we going
Speaker 1: to see a court that overturns the Aberga Fell Game
Speaker 1: marriage ruling, overturns the Vieway dibortion rights ruling. And is
Speaker 1: that really what you think the American public what was
Speaker 1: looking for with this with this election? Well, I think
Speaker 1: what they were looking for is certainly to prevent a
Speaker 1: dominant liberal majority from from running the table on a
Speaker 1: lot of issues that the Constitution doesn't speak to, whether
Speaker 1: it be same sex marriage, etcetera. Um, I don't know. Actually,
Speaker 1: it'll be interesting to see how if those justices are replaced,
Speaker 1: how that will affect the court. Historically, Republicans have been
Speaker 1: much more, much less effective in in in having fully
Speaker 1: vetted nominees that really do have a consistent, uh conservative
Speaker 1: judicial philosophy on the court, so for many years, But
Speaker 1: that's not the lack of trying your part. Absolutely. I
Speaker 1: think that's why I was encouraged seeing Trump list, because
Speaker 1: that did seem to show people with more evidence that
Speaker 1: they actually had the judicial philosophy as they put into
Speaker 1: practice and weren't just speaking to it. Because for so
Speaker 1: many years we had a Republican dominated the Preme Court
Speaker 1: Republican and point he dominated that was in fact, many
Speaker 1: of the Republican points were the most global members of
Speaker 1: the Court, you know, like like a Justice Suitor or
Speaker 1: Justice John Paul Stephens. So I think it'll be interesting
Speaker 1: to see if that trend changes. I hope it does change, because, um,
Speaker 1: I don't think we that the American will want a
Speaker 1: court that will continue to put policy preferences before the constitutions.
Speaker 1: And I hope we'll just see the court, you know,
Speaker 1: call the decisions as they are and and stick with
Speaker 1: what the constitution actually says Elizabeth. Earlier this year, liberals
Speaker 1: kind of breathed a sigh of relief when the Supreme
Speaker 1: Court deadlock four to four in a case called Friedrichs
Speaker 1: that was about whether public sector unions could get mandatory
Speaker 1: dues from public sector workers, and there was it seemed
Speaker 1: as though the Court was poised before Justice Scali had died,
Speaker 1: to overturn that decision and weakend public sector unions. Can
Speaker 1: we expect something like that to come back to the
Speaker 1: court now, when there's going to be a conservative majority again.
Speaker 1: I would expect that the lawyers who are litigating the
Speaker 1: public sector union induced case from the corporate side are
Speaker 1: very eager to get the case back up before a
Speaker 1: conservative dominated Supreme Court and I think that's one of
Speaker 1: the things that UM, I'm concerned about. We've seen the
Speaker 1: Roberts Court being the most pro corporate court in the
Speaker 1: modern era, and I think, if you know, one of
Speaker 1: the areas to watch is exactly the corporate space, because
Speaker 1: we have rulings UM that could come from the Court
Speaker 1: that are harmful to employee safety. UM discrimination rules allowing
Speaker 1: employees to band together through class actions to hold corporations
Speaker 1: accountable for wrongdoing employees and consumers being able to do that,
Speaker 1: and that's one of the things that I think would
Speaker 1: be different UM if you have a ninth justice appointed
Speaker 1: by a Trump presidency, UM, and also if you have
Speaker 1: more nominees coming down the pike. I will say that
Speaker 1: when carry talks about justices who will respect the text
Speaker 1: and history of the Constitution UM, and Donald Trump promising
Speaker 1: to do so, I certainly hope that he does, because
Speaker 1: when I look at the Constitution, I see a document
Speaker 1: that is inherently progressive, one that has been amended over
Speaker 1: our country's history to become more equal, more just, more
Speaker 1: inclusive by removing the stain of slavery and including people
Speaker 1: who were excluded from our founding promise, like women people
Speaker 1: of color as the poor. And so I think that
Speaker 1: the American people, when they look at the results of
Speaker 1: this election on the Supreme Court, should hold the justices
Speaker 1: and a President Trump to that constitutional text in history.
Speaker 1: Carry We only have about thirty seconds, but I'll give
Speaker 1: you the last work is I'm sure you want to
Speaker 1: respond to what Elizabeth just said. Sure, I absolutely agree
Speaker 1: the whole Constitution, all its amendments are what the court
Speaker 1: should be looking at um. But but we can't read
Speaker 1: into those amendments just where we wish the Constitution the
Speaker 1: country would be. If the nation wants to amend the
Speaker 1: Constitution again, absolutely in should douced to. But there's a
Speaker 1: process for that, and that's Article five. By passing an amendment,
Speaker 1: we don't shouldn't have unelected judges doing that by simply
Speaker 1: reading in their favorite policy preferences. So hopefully we'll have
Speaker 1: judges who can put their politics aside, so whatever their
Speaker 1: personal politics are, they can fix with the constitution. Says
Speaker 1: thank you so much to our guest Carrie Savarino the
Speaker 1: Judicial Crisis Network Elizabeth Wadra of the Constitutional Accountability Center.
Speaker 1: This debate will surely continue