Speaker 1: Welcome to stuff you should know from how Stuff Works
Speaker 1: dot com. Hey, and welcome to the podcast. I'm Josh Clark.
Speaker 1: There's Charles W. Chuck Bryant, there's Jerry over there, and
Speaker 1: this is who I object to what I don't know.
Speaker 1: I don't think you object them from the Supreme Court.
Speaker 1: I think they strike you down with lightning if you
Speaker 1: talk out of turn. Yeah did they even uh geez,
Speaker 1: I'd love to see one of those hearings. Yeah, they
Speaker 1: even call them hearings. Uh, magic our right, I don't know.
Speaker 1: I'm sure they do call them hearings. I'm almost positive
Speaker 1: it's like shrouded in secrecy though, right, you never know.
Speaker 1: I don't show that stuff on TV, do they like? No,
Speaker 1: but they do have like like if you listen to
Speaker 1: Nina Totenberg, she's a great Supreme Court reporter, and um,
Speaker 1: it's all. It's not televised and I guess it is
Speaker 1: just traditional reporting reporters that are allowed in there. But
Speaker 1: it's not closed to the press or and he's not
Speaker 1: like a Pasi court or it's not it's not the
Speaker 1: Star Chamber. No, no, uh, it's interesting though, it's it
Speaker 1: is sort of it does seem sort of secretive though,
Speaker 1: because they like write these rulings. Sometimes they don't even
Speaker 1: read them. I saw that Clarence Thomas went seven years
Speaker 1: without speaking in court. What Yeah, that's what it said.
Speaker 1: Where did you see that? In an article about Clarence Thomas.
Speaker 1: It said he he's one of the quietest justices. That
Speaker 1: said he went at one point seven years without speaking
Speaker 1: in court. But apparently writes a lot in his uh
Speaker 1: um rulings and you know, his briefs, his briefs, he
Speaker 1: writes in his briefs. Yeah, I can see that because
Speaker 1: I guess when you're in court, you're arguing in front
Speaker 1: of the Supreme Court, I think basically, and we'll do
Speaker 1: like a whole separate Supreme Court episode. Yeah right, agreed, Sure, okay, um,
Speaker 1: somebody mark that town. But you are, you're being peppered
Speaker 1: with questions from them and then like you're you're trying
Speaker 1: to answer the questions to to show why your side
Speaker 1: is right right and arguing the case right now here
Speaker 1: and intimidates you. Um. But yeah, part of it is
Speaker 1: going back thinking about it and then writing your opinion
Speaker 1: on It's very weird job. It is. It's a pretty
Speaker 1: neat job. Too. One of the big things about it
Speaker 1: is it's in here in the United States. If you
Speaker 1: are on the Supreme Court's the highest court in the land,
Speaker 1: you're there for life. It's a it's a life appointment.
Speaker 1: Is the only as far as I know, besides you know,
Speaker 1: um working at the d M v AM. I right,
Speaker 1: it's the only for life appointment in the United States government. Yeah,
Speaker 1: which seems like kind of crazy, but it also sort
Speaker 1: of makes sense because you want you want a stable
Speaker 1: Supreme Court. Yeah, you want them focusing on cases, not
Speaker 1: you know, what's going on, whether they need to elected
Speaker 1: again or campaign. That makes it makes sense once you
Speaker 1: kind of put your head to it. Plus, it also
Speaker 1: kind of dovetails with the way that they're viewed here
Speaker 1: in this country and I'm sure abroad to um that
Speaker 1: they are this panel of highly learned legal scholars just
Speaker 1: basically like um uh, I don't know. I'm sure there's
Speaker 1: something in Star Wars that resembles this. You know, the
Speaker 1: Jedi Council. Oh man, I'm always afraid to say, hang
Speaker 1: about Star Wars. You know, the Jedi Council that John
Speaker 1: jar Binks was on. Okay, Yeah, we won't hear anything
Speaker 1: about that. How could we write? Uh so this was
Speaker 1: written by our old buddy Ed Grabbynowski. Yes, should we
Speaker 1: tell everybody? Should we reveal the big reveal? Do we
Speaker 1: have an announcement? I think so? All right, go ahead.
Speaker 1: Oh you're letting me do it so everybody. You may
Speaker 1: not know that because we tried to stretch out Grabstar
Speaker 1: articles as much as we could, but they were starting
Speaker 1: to get thin. Ye, Crabster wasn't really writing for the
Speaker 1: site any longer. While we said enough of this, we
Speaker 1: need them, you need them bad. So we did a
Speaker 1: little wheeling tad bitter dealing and Grabster is going to
Speaker 1: be writing again, specifically topics that we are requesting. Yeah,
Speaker 1: it's pretty great. Like you and I were both so excited, stoked,
Speaker 1: I think is the word. Yeah. So anyway, we love
Speaker 1: Ed and uh big shout out to him and to
Speaker 1: Buffalo New York and their wings and their football team.
Speaker 1: Sure why not? So anyway Ed wrote this, Um, and
Speaker 1: you know, it's a great article. So, like you said,
Speaker 1: I think we kind of duve into it really quickly.
Speaker 1: But um, if you're not in the United States, you
Speaker 1: might be saying, what's the Supreme Court? Although I think
Speaker 1: you probably know. Um, like you said, they are the
Speaker 1: highest court and um, they're the third branch of our government. Uh.
Speaker 1: And they are specifically specifically air to kind of keep
Speaker 1: everyone in check and to say, like, you know, you
Speaker 1: may be the president, but you're not a dictator because
Speaker 1: you still have to answer to the Supreme Court at
Speaker 1: the end of the day. You can't run a monk.
Speaker 1: And we're gonna we're gonna make sure that we and
Speaker 1: this is ideally, we're going to make sure that we
Speaker 1: review everything in a in a legal way, and we're
Speaker 1: gonna get to ideology. You can't escape that, of course,
Speaker 1: but you know, Supreme Court justices are supposed to rule
Speaker 1: on law and specifically these days at least how it
Speaker 1: relates to the Constitution. Yeah, and that's a It wasn't
Speaker 1: their initial They weren't created to say, like, go defend
Speaker 1: the Constitution. Uh. And the the Supreme Court said, well,
Speaker 1: can we sow some patches or bedazzle our robes? And
Speaker 1: the framers said sure, we don't care, so they went
Speaker 1: out and defended the constitution. It actually is very vague.
Speaker 1: The judicial branch or the Supreme Court is created in
Speaker 1: the Constitution, but all it says is that they are
Speaker 1: there to UM. They that it's power should shall quote
Speaker 1: extend to all cases in law and equity arising under
Speaker 1: this constitution. That's it. It's the only thing it mentions
Speaker 1: about the Supreme Court and its power. So Ever since
Speaker 1: the Constitution was written and ratified, the Supreme Court has
Speaker 1: kind of been this evolving thing, or it was evolving
Speaker 1: for a while. Now it's pretty well set into into
Speaker 1: its role and what it's meant to do. What evolves
Speaker 1: and changes are, like you said, the ideology and the
Speaker 1: personality of the of the people sitting on the court. Yeah,
Speaker 1: and their word is the final word. Um. There there
Speaker 1: is no court that can overturn or review even their decisions.
Speaker 1: And they review. They have about five thousand cases submitted
Speaker 1: every year and can only review about a hundred to
Speaker 1: a hundred and fifty, which I thought was kind of
Speaker 1: a lot. Actually, yeah, I was not expecting that. UM.
Speaker 1: And they specifically try now, like we said, and focus
Speaker 1: on the constitution or UM usually cases that have been
Speaker 1: appealed from lower federal courts. You know, they worked their
Speaker 1: way up to food chain um or and I think
Speaker 1: they probably love these uh treason cases involving treason or
Speaker 1: disputes with other countries or ambassadors kind of like you know,
Speaker 1: the high stakes stuff. Imagine being an ambassador and getting
Speaker 1: dragged in front of the Supreme Court for something you
Speaker 1: did being or your kid did. Yeah, probably a little
Speaker 1: snot nosed brats ambassador kids. So like, like I was saying,
Speaker 1: the the Constitution is pretty vague about what the Supreme
Speaker 1: Court is meant to do. And it wasn't even out
Speaker 1: of the gate that they realized that they were supposed
Speaker 1: to really kind of examine laws in respect to the Constitution.
Speaker 1: That started in an eighteen oh three case Marbury versus Madison,
Speaker 1: and it was yeah, it was a landmark watershed case
Speaker 1: both both kinds um and ironically, the court found owned
Speaker 1: that it didn't have the power to satisfy the petitions
Speaker 1: of the petitioners. I think James Madison or no, Stephan
Speaker 1: Marberry was suing James Madison because James Madison had said, um,
Speaker 1: we'll give you these commissions and then he was taken
Speaker 1: out of office or he phased out of office and
Speaker 1: the commissions were forfeited, and the Supreme Court said, you know,
Speaker 1: we thought we had the power to do this, but
Speaker 1: it turns out we don't constitutionally, so sorry. And it
Speaker 1: was the first time that the Supreme Court had ever
Speaker 1: examined something through the lens of the Constitution, and that
Speaker 1: set the precedent from then on. Yeah. And they serve, well,
Speaker 1: they serve kind of however long they want to or
Speaker 1: if they die obviously, but the average about fourteen years
Speaker 1: UM or if they retire, they average retirement age seventy
Speaker 1: one UM. But they can serve super long. And I
Speaker 1: know that one justice served for thirty five years UM.
Speaker 1: And you know, if you if you nominate a young judge,
Speaker 1: which is kind of more of the trend these days
Speaker 1: when you're thinking politically, like you know, we want someone
Speaker 1: in there for our team, so pick a young one, right, Uh.
Speaker 1: Then they can have tremendous sway And how things going
Speaker 1: this guy year after year after year after year. Yeah. Yeah,
Speaker 1: because the reason why they have so much sway is
Speaker 1: like the stuff that they're they're ruling on is constitutional
Speaker 1: in nature, and here in the United States, if it's
Speaker 1: if it's constitutional, if it's guaranteed by the Constitution, protected
Speaker 1: by the constitution, outlawed by the Constitution, whatever. However, the
Speaker 1: Supreme Court measures the law against the constitution, Like you said,
Speaker 1: that's the law of the land. From that point on. Um,
Speaker 1: any law similar to uh, what the Supreme Court just
Speaker 1: ruled on, it's immediately null and void, like it's done.
Speaker 1: Um ed used is a really good an example. And
Speaker 1: this he said, like if if main bands anti war
Speaker 1: signs from people's front yards and Supreme Court rules that
Speaker 1: that law is unconstitutional, well, if Rhode Island has a
Speaker 1: similar law, California is a similar law, those those laws
Speaker 1: are immediately illegal. I guess, um. And it's not like
Speaker 1: Rhode Island's gonna bring their case and then California is
Speaker 1: going to try their case. Once they rule, it's done.
Speaker 1: It's been ruled on. That's right by the sc Yeah,
Speaker 1: and uh, there are nine justices, Um right now there
Speaker 1: are eight, which we're going to get into. And uh,
Speaker 1: obviously having an odd number means you can break a tie.
Speaker 1: So it's um with eight you can have a tie.
Speaker 1: And when you do have a tie, they've actually thought
Speaker 1: about this, believe it or not, they arm wrestle. I'm kidding,
Speaker 1: of course, they don't arm wrestle. But um, what happens
Speaker 1: is the lower court decision is what's called passively upheld,
Speaker 1: which means that for that case only, it's upheld. But
Speaker 1: it's not like the Supreme Court didn't rule on it,
Speaker 1: and it doesn't create that that nationwide legal precedent forever
Speaker 1: and ever passive aggressive and someone could you know, once
Speaker 1: I get that ninth person, they could bring up a
Speaker 1: similar case, not the same one, but a similar one
Speaker 1: if they want to like have that precedent said in
Speaker 1: the Supreme Courek will be like, let's try it again. Yeah,
Speaker 1: but yeah, if you for a case to be decided definitively,
Speaker 1: all you need is a simple majority five to four.
Speaker 1: And a lot of cases these days in the United
Speaker 1: States are have I have like five to four decisions, um,
Speaker 1: Which is the fact that that's a pattern and then
Speaker 1: that's routine really kind of shows you how just close
Speaker 1: to the center that that ideologically the bench is. And
Speaker 1: um that all it would take was you know, one
Speaker 1: or two votes that you can really rely on one
Speaker 1: way or the other. It's going to be super liberal
Speaker 1: or it'll be super conservative. Yeah, and these days it's um,
Speaker 1: I mean sometimes you'll get surprises on ideology, like oh,
Speaker 1: we thought this person would vote this way, that way,
Speaker 1: But generally you got kind of the four on the
Speaker 1: left the four on the right, or you know you
Speaker 1: did before Scalia died. And um, I think Kennedy is
Speaker 1: sort of the swing vote, right, yeah, generally speaking for
Speaker 1: us right, it used to be Sandra Day O'Connor. Right.
Speaker 1: But when when they say, oh, we were surprised, we
Speaker 1: thought they were going to vote this way, that's putting
Speaker 1: it about as mildly as you can. But surprise, yeah, outrage.
Speaker 1: I wasn't expected that fiddle d d yeah, And I
Speaker 1: looked up some of the I mean, we'll get to
Speaker 1: this later, but some of the appointees, um, throughout history
Speaker 1: have been made by like conservative points of conservative and
Speaker 1: then they might grow a little more liberal over time
Speaker 1: or the other way around. And they're always like they're
Speaker 1: so upset, like, you know, I thought this is what
Speaker 1: we were getting. But to me, that's how it should be,
Speaker 1: you know, Like that means probably that that judges deciding
Speaker 1: cases based on merit and not like I'm just dug
Speaker 1: in and entrenched in one ideology. Yes, which is exactly
Speaker 1: what you want from a Supreme Court justice. Should we
Speaker 1: take a break, Yeah, let's take a break. All right,
Speaker 1: we're talking about appointments, so we'll get to that right
Speaker 1: after this. All right, how's this work appointing? Yeah, so
Speaker 1: remember the constitutions when their Supreme Court do it. I'm done.
Speaker 1: I'm out right and going to take a nap um.
Speaker 1: So appoint appointments, it's it's all just made up. There's
Speaker 1: no qualifications. Uh, there's no requirements. You you or I
Speaker 1: could be nominated to be on the Supreme Court. The
Speaker 1: President was like, I want to figure out the fastest
Speaker 1: way to ruin my political career. I've got it. That's
Speaker 1: that'd be a good way to do it. Because again,
Speaker 1: here in this country, people treat Supreme Court nominations like
Speaker 1: a religion. It's a big, big deal. Not even to
Speaker 1: like get someone through the process. Just to nominate somebody
Speaker 1: can bring so much blowback from your party, from the voters,
Speaker 1: from the opposing party, from everybody that you really want
Speaker 1: to think it through. It's not a haphazard thing. But
Speaker 1: as as far as the starting the whole thing off,
Speaker 1: you have a list of qualified candidates. I think every
Speaker 1: single Supreme Court justice in history has been a lawyer
Speaker 1: at least, but lately almost all of them The only
Speaker 1: person on the Supreme Court now who isn't a judge
Speaker 1: is Elena Kagan Um. But the trend is is most
Speaker 1: of them are federal judges who are called up to
Speaker 1: the bigs. Yeah. And a lot of them have even
Speaker 1: served as clerks on the Supreme Court. Um. So what
Speaker 1: they're looking for with all that is experience. Yeah. And
Speaker 1: and for the last hundred and fifty years, not only
Speaker 1: have they been attorneys, but they've they didn't go to
Speaker 1: you know, the strip mall although was it O'Connor, Well,
Speaker 1: she didn't go to a strip mall law school, but
Speaker 1: she was a strip mall lawyer. I think yeah at first.
Speaker 1: But they have all graduated from like an accredited legit university,
Speaker 1: like not like Dr Nick graduated from the Upstairs Medical Clinic.
Speaker 1: Is that what it was called. I think it was
Speaker 1: Tijuana Upstairs Medical Credit. Uh. A lot of these UM
Speaker 1: justices before their Supreme Court appointment have been involved in politics. Um.
Speaker 1: Some of them have been governors, some of them have
Speaker 1: been in Congress. There was even one former president, one
Speaker 1: Howard Taft. Howard is actually a great story. He hated
Speaker 1: being president, hated it, loved being a Supreme Court Justice.
Speaker 1: I could see that, he said. On the bench, it groaned, anyway,
Speaker 1: I'm home, this is great, the bench groaned. I know
Speaker 1: that for a little while there were people there were
Speaker 1: there were rumblings that Obama might be in line for
Speaker 1: a Supreme Court appointment had the election gone a Diffroy,
Speaker 1: which would have been I could see that. I could too,
Speaker 1: But um, you know, obviously that's not gonna happen. No,
Speaker 1: I don't see Trump, I pointing Obama. All right, So,
Speaker 1: once this nomination goes through UM and you know, the president,
Speaker 1: it used to be like a very I don't know
Speaker 1: about solitary probably there a little close circle. But now,
Speaker 1: like you said, they get a list and that that's
Speaker 1: culled from a group of very smart people that are
Speaker 1: UM trying to firmly entrench their own ideologies basically, so
Speaker 1: they're gonna choose from that list the candidate UM and
Speaker 1: nominate them officially in the Senate. Then we'll hold hearings.
Speaker 1: And just recently, you know, we've seen this going on.
Speaker 1: You know, this is happening right now with Gorse. Yeah,
Speaker 1: and the whole thing would have started with Gorsets getting
Speaker 1: a phone call from the press saying, hey, I want
Speaker 1: you to want me on the Supreme Court, and Gorstch
Speaker 1: was like, I don't, I don't know what you're saying.
Speaker 1: He's like, you're gonna be on the Supreme Court and
Speaker 1: hung up right. That was it, And then uh yeah,
Speaker 1: the name gets released to the press and the Senate says,
Speaker 1: all right, let's get busy, let's get to work, and um,
Speaker 1: this whole high bee hive of activity just starts kicking
Speaker 1: up around this one. Poor sap who accepted the nomination
Speaker 1: and now has everyone from the Justice Department to Congressional
Speaker 1: aids putting on latex gloves and going right up there
Speaker 1: rectum to try to see what they can find in
Speaker 1: this person since passed. Yeah, and not only what they
Speaker 1: can find in their past, but really grilling them, um
Speaker 1: on maybe where he or she might lie ideologically, like
Speaker 1: how how would you rule in this case that it
Speaker 1: has happened? How did you feel about this case? And
Speaker 1: I was watching um A news network the other day
Speaker 1: talking about how Gorsets did such a masterful job of
Speaker 1: like dodging, yeah about like not going on record with
Speaker 1: with how they lean, um and that's tradition. Well, yeah,
Speaker 1: apparently they they like the one thing that you're supposed
Speaker 1: to do up there is not give anything away. No,
Speaker 1: because it's just a big dance. And if they say yeah,
Speaker 1: Joe Biden back and I think the eighties called it
Speaker 1: a kabuki dance. Um, and Elena Kagan called it a
Speaker 1: vapid and hollow charade because the senators are trying to
Speaker 1: pin you down one way or another on your views
Speaker 1: on gun control, abortion, all of these hot button issues
Speaker 1: that the Supreme Court has either ruled on, may rule
Speaker 1: on in the future, may overturn at some point. Um.
Speaker 1: That that really split the country ideologically. And the point
Speaker 1: of these Senate hearings is basically for the nominee to
Speaker 1: sit there and not give up anything, because if they
Speaker 1: did do that, then they would have to recuse themselves
Speaker 1: from that case for having gone on the public record
Speaker 1: stating their position. Well yeah, And it's the opposition's party's
Speaker 1: job to sit there and sigh and rub their temples
Speaker 1: and say, well, it just seems like you don't want
Speaker 1: to go on record for anything, right, And they never
Speaker 1: get to respond. Duh. It's a Senate hearing for Supreme
Speaker 1: Court justice is what always happened. It's really funny that
Speaker 1: they play that up, that like the senators act like
Speaker 1: they just can't believe what's going on even though this
Speaker 1: has been happening for decades now. Yeah, it's just a
Speaker 1: big I don't know about a charade, but I think
Speaker 1: part of it is they part of it is to
Speaker 1: see how well they can hold up to the grilling too.
Speaker 1: I think that's part of it as well. But the
Speaker 1: group that probably plays the biggest role in in in
Speaker 1: kind of rooting out what the nominees politics are are
Speaker 1: the aids in the Justice Department and whatever they leak
Speaker 1: to the media, because, um, you're not gonna you wouldn't
Speaker 1: find anything out about say, like Gorsets from those two
Speaker 1: days of hearings. No one found anything out about him.
Speaker 1: If that's all you know about that guy was those
Speaker 1: two days of hearings, you didn't read anything else about it,
Speaker 1: You have no idea what his positions where. You'd just
Speaker 1: be like, that guy's got one of the better haircuts
Speaker 1: I've ever seen in my life. That's all you would
Speaker 1: get from it. But the media tends to report on
Speaker 1: it and they kind of fulfill the role that um
Speaker 1: that that the Senate fails at every single time and
Speaker 1: it'll be things like, um, Harriet Myers was was, um
Speaker 1: was nominated by George W. Bush, and Um, he just
Speaker 1: got immediate blowback for it is a terrible nomination. But
Speaker 1: one of the things somebody found was that she had
Speaker 1: cant if you did some money back in like a
Speaker 1: good fifteen something years before to Al Gore's presidential campaign.
Speaker 1: Like they find like little stuff like that, and they
Speaker 1: try to put it all together to create a picture
Speaker 1: so that the Senators can ask them about stuff or whatever,
Speaker 1: or the media can can paint a picture one way
Speaker 1: or another, and everyone can try to divine how they're
Speaker 1: going to rule. Now, did Harriet Myers actually go through
Speaker 1: the Senate hearings? Well, that that's what will happen a
Speaker 1: lot of times if there is a skeleton in their closet.
Speaker 1: Sometimes they want to accept the nomination, not even for
Speaker 1: that reason. Sometimes they want to accept the nomination because
Speaker 1: they're like, no, man, I know it, I don't want
Speaker 1: to go through all that. I'm fine just being on
Speaker 1: my federal circuit here. Um. But sometimes they'll withdraw if
Speaker 1: they know that they won't make it through that and
Speaker 1: they don't want that drug out in public. And sometimes
Speaker 1: the the President will withdraw that nomination to avoid that
Speaker 1: kind of embarrassment too, right, Um, Like Clarence Thomas, I
Speaker 1: don't know how they missed that, or if they did,
Speaker 1: you know, he would famously was uh allegedly sexually harassed
Speaker 1: Anita Hill. And I don't know if they that didn't
Speaker 1: come to light until the hearings or if that's what
Speaker 1: my guess was. I think they started the hearings and
Speaker 1: they were still doing investigations and they got into Anita Hill.
Speaker 1: Yet he would come I don't think in today's climate, no,
Speaker 1: that was that was nuts, um. But the what's ironic
Speaker 1: about it is that he wouldn't make it in today's
Speaker 1: climate with our awareness and understanding of sexual harassment. But
Speaker 1: those hearings, his his Supreme Court Um confirmation hearings were
Speaker 1: what exposed the world to sexual harassment and concept of
Speaker 1: it that we understand today is rooted in that moment
Speaker 1: in those three days where Anita Hill stood up and
Speaker 1: was like, this is messed up and I'm gonna share it. Um.
Speaker 1: And and Clarence Thomas famously called the whole thing a
Speaker 1: high tech lynching. And then after all this, so he
Speaker 1: was about to be voted on. There was debate in
Speaker 1: the Senate, which we'll get to this process in a second.
Speaker 1: They sent after this came to light, they sent it
Speaker 1: back to the committee hearings. So he took a huge
Speaker 1: step backward in the confirmation process, had to go through
Speaker 1: three days of Anita Hills testimony, and then after that
Speaker 1: the Senate still said, all right, cool, well we'll confirm you. Yeah,
Speaker 1: and he was so upset he said, you know, I'm
Speaker 1: not gonna talk for seven years, right, I'll show you so. UM.
Speaker 1: By and large, though the vast majority of appointee UM
Speaker 1: submissions what would you call him nominations are appointed, right. Oh,
Speaker 1: I think it's something like there have been a hundred
Speaker 1: and sixty one nominations and a hundred and twenty four
Speaker 1: have been confirmed. I think there's only been thirty six rejections,
Speaker 1: and so the rest are withdraws, withdrawals UM or. There's
Speaker 1: one very recent one that I think is the first
Speaker 1: in history, um Obama's nomination of Merrick Garland. They just
Speaker 1: didn't even get hurt. Yeah, um, which is very much
Speaker 1: an unusual, uh step that was taken in the process. Yeah,
Speaker 1: I mean, this just happened. Everyone saw it happen. Um.
Speaker 1: Obama was in his last year of his presidency, and
Speaker 1: so uh, Republican senators basically said, not only are we
Speaker 1: not gonna vote on it, we're not gonna hold hearings.
Speaker 1: Some of them refused to even talk to the guy.
Speaker 1: They just basically took their ball and went home. Right,
Speaker 1: so we're not gonna do anything, which received a lot
Speaker 1: of blowback from people already frustrated with the um the
Speaker 1: notion that maybe these people work for them and they
Speaker 1: should do their jobs, and that is one of their
Speaker 1: jobs is to at least have hearings and take a vote,
Speaker 1: and um they everyone dug in and um he went
Speaker 1: without earrings, went without a vote, And uh, I don't
Speaker 1: know what he's doing now. I guess he just kept
Speaker 1: his regular job. Oh yeah, I'm sure. I don't think
Speaker 1: you like lose your job and no, no, like quit
Speaker 1: and move and everything go on the trail. Um no
Speaker 1: he uh yeah, I I but I think the more
Speaker 1: to the point, like you're it's gotta affect your reputation,
Speaker 1: you know what I'm saying, Like even if it had
Speaker 1: it was no fault of his own, it's still like
Speaker 1: a black mark on his history at least. Well, it
Speaker 1: was a big deal because this was Um, it's kind
Speaker 1: of tough to pin down someone's political ideology as a judge.
Speaker 1: They have a few ways of doing it. There's something
Speaker 1: called the Martin Quinn score for Supreme Court justices, and
Speaker 1: they compare how they vote relative to one another. Uh.
Speaker 1: And then there's something else called the Judicial common Space score,
Speaker 1: which measures their ideology based on the ideology of their
Speaker 1: appointing presidents and home state senators. And then I think
Speaker 1: this from Washington Posts, I read an article that they're
Speaker 1: basically trying to sus out how liberal is Garland right here?
Speaker 1: Who was super centrist, wasn't he? Well, they said in
Speaker 1: the end that they looked at all those scores, and
Speaker 1: then they did one more where they basically looked at
Speaker 1: the law clerks that they hired, because generally you're gonna
Speaker 1: hire clerks that agree with you, and clerks to work
Speaker 1: for judges who they who they agree with, um, And
Speaker 1: they looked at what they're the clerks political donations where
Speaker 1: they were So what's this? They said that he was
Speaker 1: center left in the end, would have definitely swung the
Speaker 1: court more to the left. But at the time you know,
Speaker 1: it was sort of a showdown. It was like for
Speaker 1: the Republicans are like, do we do we let Garland
Speaker 1: go through because he's sort of center left? Where do
Speaker 1: we take a chance that Hillary wins this election and
Speaker 1: goes whole hog left to someone that's way more liberal.
Speaker 1: And in the end they dug in and uh, well
Speaker 1: everyone knows what happened. Uh yeah, And I read both
Speaker 1: sides of this, likebviously the liberals and the Democrats were
Speaker 1: just going crazy over it there like this with the
Speaker 1: audacity of not doing this right, um that that because
Speaker 1: the Republicans were saying, well, it's an election year, so
Speaker 1: we don't want to put a Supreme Court nominee on
Speaker 1: the Supreme Court for life during an election year, right,
Speaker 1: And the Democrats said, you're crazy. There's been like eight
Speaker 1: or nine Supreme Court justices who were confirmed on an
Speaker 1: election year. That's a terrible argument. But apparently that was
Speaker 1: when the um the I think the government wasn't split, right,
Speaker 1: There wasn't like the executive and Congress were in the
Speaker 1: same party. The same party was in power for like
Speaker 1: seven or eight of those confirmations to have gone through,
Speaker 1: So both sides actually had legitimate arguments, but it definitely
Speaker 1: seemed like a dereliction of duty from the outside looking in. Well,
Speaker 1: what it did, too, was it set up, um the
Speaker 1: gorste situation now, which is Democrats are delaying the vote,
Speaker 1: and I think by the time this comes out, they
Speaker 1: will have voted. I would guess so, because usually I
Speaker 1: think McConnell said by April two he'd be confirmed, was
Speaker 1: his estimate. Yeah, well they delayed it one more week
Speaker 1: a couple of days ago, but um, regardless, it's it's
Speaker 1: you know, imminent if it hasn't just happened. And so
Speaker 1: they set up the situation now where Democrats are dug
Speaker 1: in and they're like, don't expect any votes from us
Speaker 1: to confirm. And then the Republicans are saying, well, if
Speaker 1: you do that, though, we don't need a simple we
Speaker 1: just need a simple majority. We can use what's called
Speaker 1: the nuclear option, which we talked about in the Filibusters episode.
Speaker 1: I think, yeah, so they're the Democrats would filibuster, then
Speaker 1: they would use a nuclear option, which means they can
Speaker 1: kind of rewrite the rules and confirm with a simple majority.
Speaker 1: And then there's a fear that if that happens, that
Speaker 1: will just be the norm going forward. Yeah, that they'll
Speaker 1: use that for everything. And and on the one hand,
Speaker 1: it will definitely be the Democrats fault because they used
Speaker 1: the nuclear option first. But they used it for a
Speaker 1: bunch of Obama appointees back and I think two thousand
Speaker 1: thirteen or fifteen, and um, they said specifically this does
Speaker 1: not apply to Supreme Court nominees. Now the pendulum is
Speaker 1: swing the other way. The Republicans are in control. If
Speaker 1: they use the nuclear option for the Supreme Court nominees,
Speaker 1: that'll that'll just be like there will be nothing off
Speaker 1: limits any longer. And yeah, they'll there will be no
Speaker 1: filibuster power in the Senate any longer. Yeah. It really
Speaker 1: underscores just how ugly things have gotten, you know. Yeah,
Speaker 1: it's pretty ugly these days in Washington. Uh And and
Speaker 1: we should say, well, we'll take a break in a second, choke,
Speaker 1: but we keep talking about the Senate. The House has
Speaker 1: nothing to do with this, actually, yeah a little bit. Um,
Speaker 1: it's strictly the president appoints, and the Senate holds committee
Speaker 1: hearings and then debate and then votes, and then the
Speaker 1: person is either confirmed or rejected, almost exclusively confirmed. And
Speaker 1: if they are rejected. Um, they can't be submitted again.
Speaker 1: But it usually doesn't make sense too unless something big
Speaker 1: has happened that makes the president think that they can
Speaker 1: get confirmed. Which happened I think with Andrew Jackson. Is
Speaker 1: that right? Yeah? In the eighteen six Yeah, he had
Speaker 1: a guy named Roger Taney who had never heard of before. Um,
Speaker 1: who he submitted. Guy got rejected, and then there were
Speaker 1: elections that changed the complexion of the Senate. Yeah, that
Speaker 1: was much friendlier to Jackson. So he did it again.
Speaker 1: I got he brought him in with a like a
Speaker 1: baseball head on. Yeah, I said, how about this guy
Speaker 1: big mustache? Um? And George W. Bush did the same
Speaker 1: thing too, but he his guy John Roberts didn't get rejected,
Speaker 1: but he nominated Roberts twice in the same month for
Speaker 1: two different seats. The second time he got confirmed. So well, well, um,
Speaker 1: there's a lot of politicking that goes on behind this,
Speaker 1: A lot of thought goes into it, not surprisingly, and
Speaker 1: we'll talk about all that stuff right after this. So chuck, um,
Speaker 1: this is not again, This isn't taken lightly. Um. It
Speaker 1: is a hollow and vapid sharade and a kabuki dance
Speaker 1: and it's ridiculous in a lot of ways, but it's
Speaker 1: the end result is really really important, and that is
Speaker 1: that you have a Supreme Court justice who's one of
Speaker 1: nine voices that are that create the law of the
Speaker 1: land here in the United States, and that they're on
Speaker 1: there for life. So everyone again takes it extremely seriously,
Speaker 1: and there's a lot of things to be considered when
Speaker 1: a president is even picking a nominee from that list
Speaker 1: that they have. Yeah, that you know, even though we
Speaker 1: said there are no rules for qualifications, there is a
Speaker 1: long history that's kind of become accepted as qualifications, which
Speaker 1: we've talked about an attorney generally a federal court judge. Um,
Speaker 1: so once that is kind of sussed out. We talked
Speaker 1: about ideology a lot, and um, you're not gonna find
Speaker 1: his head points out the perfect fit where someone agrees
Speaker 1: with everything that you agree with as president, But what
Speaker 1: you want is someone who by and large will side
Speaker 1: with your side. What Yeah, you know, he's like us,
Speaker 1: But again it's not going to be a perfect fit. Yeah. Like,
Speaker 1: but you also want someone who probably has a good
Speaker 1: chance of getting uh confirmed. That's a big that's a
Speaker 1: big point, right, So like that. There's a lot of
Speaker 1: factors that go into that selection. Right. So obviously, if
Speaker 1: you are a conservative president, especially like a deeply socially
Speaker 1: conservative president, you're gonna try to find somebody who's a
Speaker 1: pretty socially conservative ideologue, right, and that will be your
Speaker 1: your pick. But you may want to stop yourself and
Speaker 1: think about this first. Let's let's let's think about this.
Speaker 1: Who's in control of the Senate. That's a big one.
Speaker 1: If it's the opposition party, well, then you may want
Speaker 1: to consider somebody who's um maybe a little closer to
Speaker 1: the center, because your person might get rejected. And if
Speaker 1: you're just an outside observer saying, well, who cares, it's
Speaker 1: they'll they'll get rejected. Pick somebody else. You you said
Speaker 1: you have a list, go to the next person, right.
Speaker 1: There's a lot of political ramifications for this, right. So
Speaker 1: if if you are a president and you're picking a
Speaker 1: pretty radical nominee, um, it can make you look bad,
Speaker 1: especially if you're not that popular of a president. Yeah,
Speaker 1: And it can also have a lot of bearing on
Speaker 1: mid term elections and how the public views the direction
Speaker 1: the country is going as a whole. Yeah, Because if
Speaker 1: the Senate goes along with your radical person and the
Speaker 1: public is not down with that person. That's going to
Speaker 1: be a a negation on on on the ballot, like
Speaker 1: you're you're You're not going to look good at all
Speaker 1: because of this Supreme Court nominee pick. Yeah, the the
Speaker 1: whoever um just left whatever, whether it was a retiree
Speaker 1: or in the case of Scalia, someone who just died.
Speaker 1: Um suddenly, Um, the outgoing justice is gonna play a
Speaker 1: large part in and again depending on what parties in office,
Speaker 1: what party holds the Senate, because gets the replacement, can
Speaker 1: you can you get somebody pushed through? And if you can't,
Speaker 1: it's not gonna look very good on you as the president. Yeah.
Speaker 1: And basically with gorsech Um, I looked him up as
Speaker 1: far as where he might sit or is predicted to sit.
Speaker 1: He's pretty right. Yeah, obviously he's pretty right. But they
Speaker 1: said that he was right now at least you know
Speaker 1: this is from all the studying done from those different
Speaker 1: methodologies that I talked about earlier. They said he would
Speaker 1: sit second to the right, next to Thomas, the silent
Speaker 1: Clarence Thomas apparently is the furthest right at this point. Um.
Speaker 1: And then you know, it goes all the way through
Speaker 1: down to uh Sonia Soda Mayor, who's uh the furthest
Speaker 1: to the left, and then uh Mr Kennedy in the
Speaker 1: middle man. What a powerful dude he is. He gets
Speaker 1: gift baskets all the time. Yeah, yeah, he has muffins
Speaker 1: every morning. And you know, depending on and people forecast
Speaker 1: this like a way in advance. I'm like, it's not
Speaker 1: just Supreme Court justices, it's appointing appointing judges all throughout
Speaker 1: the system in the United States. Um, Republicans have had
Speaker 1: a tactic for years now that's really paid off for
Speaker 1: them where they have really worked hard to appoint as
Speaker 1: many judges conservative leaning judges throughout the system and staunchly
Speaker 1: tried to oppose any liberal appointments. And um, you get
Speaker 1: those lower courts. I mean, people don't pay a lot
Speaker 1: of attention a lot of times to these lower court appointments,
Speaker 1: and it's made a big difference, you know, Oh yeah
Speaker 1: over time. Sure, if you've got that many more bullets
Speaker 1: in the chamber just in as far as like conservative rulings, yeah,
Speaker 1: just all over the country. You know, if you have
Speaker 1: more of your people in place, and lower courts they're
Speaker 1: going to be more clerks that work for them that
Speaker 1: are conservative, and then eventually they rise up and you're
Speaker 1: probably gonna have a better chance of getting a Supreme
Speaker 1: Court nominee appointed who was conservative. It's an incubator. Yeah,
Speaker 1: that's a good way to look at it. A farm system. Sure,
Speaker 1: they probably love that terminology. But you were saying, so
Speaker 1: do Myers farthest to the left and Thomas is farthest
Speaker 1: to the right, right, Now, that's what they say. Yeah,
Speaker 1: and I think you're saying earlier to that. You know,
Speaker 1: depending on who's being replaced, and that makes a decision
Speaker 1: on who's picked as well. True, right, because if you're
Speaker 1: replacing a far right seat with a far left nominee,
Speaker 1: you're gonna get some serious um push back from the
Speaker 1: right or vice versa. Yeah, And that's why this election,
Speaker 1: you know, that we just went through, was so important
Speaker 1: because there are some aging members of the Supreme Court,
Speaker 1: and um, you know, if you get to a point
Speaker 1: like Nixon got to a point, four Supreme Court justices, Yeah,
Speaker 1: and they turned on him like a pack of jackals,
Speaker 1: three of them did. I'm sure that's that's what Nixon thought. Um, yeah,
Speaker 1: that's that's and this is kind of a pretty good
Speaker 1: demonstration of how Supreme Court nominees. They're appointed or they're
Speaker 1: nominated by presidents, but they are in no way meant
Speaker 1: to be beholden to presidents. They should not be. It's
Speaker 1: it's they're not doing their job if they're ruling in
Speaker 1: in line with what they think the president wants to hear. Yeah,
Speaker 1: and I guess that goes back to why they're in
Speaker 1: there for life. Like they probably do feel I mean,
Speaker 1: they still have their ideologies, but they probably do feel like,
Speaker 1: all right, I'm in here. They can't take me out. Um,
Speaker 1: there's probably some mechanism to take them out. There is
Speaker 1: something really bad. It's a it's impeachment. It's the exact
Speaker 1: same process that you would get rid of a president
Speaker 1: with where the House impeaches the person and then the
Speaker 1: Senate votes to convict or not and then they're removed.
Speaker 1: It's only been threatened twice. One of them was a
Speaker 1: Nixon appointing, and thing. Uh, but I was looking, like
Speaker 1: I said, at Garland and the kind of gut started
Speaker 1: digging into history and um in the modern era, and uh,
Speaker 1: Anton and Scalia is rated as the number one most
Speaker 1: conservative justice in the modern era. Is that right? That's
Speaker 1: what it said. See because I have anonymous further right
Speaker 1: than him, and that gorstch would be even further right
Speaker 1: than Scalia. I didn't create that. That's a well, I
Speaker 1: didn't create this either. So well, this was Stanford University,
Speaker 1: in the University of Chicago, Northwestern and Harvard. Yeah, but
Speaker 1: it was based on um. It just depends on what
Speaker 1: they use. Let's just say they're both super conservative. But
Speaker 1: I mean one of the things they looked at and
Speaker 1: they like to look at his campaign contributions, either by
Speaker 1: like I said, clerks or by them, and they said,
Speaker 1: based on Gorstages Gorstages campaign contry utians, they said that
Speaker 1: he would be more conservative than seven percent of all
Speaker 1: other federal judges. That's pretty conservative. When Requests was supposedly
Speaker 1: number two and they don't have Thomas where they have
Speaker 1: they have Thomas at number seven on my list. I
Speaker 1: don't know by that. They have him on the furthest
Speaker 1: right right now, at least in the sitting justices. Well,
Speaker 1: and then there's people, like I said, over time that
Speaker 1: might change a bit. John Paul Stevens was the guy
Speaker 1: that was in there for thirty five years and apparently
Speaker 1: he became more liberal over time. Um, and then Burton
Speaker 1: was very conservative, but he ruled against segregation. It's like
Speaker 1: you kind of never know. Uh. David Souder became he
Speaker 1: was a Bush appointee, and I think he was one
Speaker 1: of those that like conservatives were really mad at. They
Speaker 1: were like, you're not nearly as conservative as we thought, Souder.
Speaker 1: They would have never picked you. Yeah, And I mean
Speaker 1: you just can never tell. You can't tell. And the
Speaker 1: whole point is that makes a good just this, that's
Speaker 1: what you want. You don't want to be able to
Speaker 1: look at them and be like, oh, this is how
Speaker 1: they're going to vote and be right every time. You
Speaker 1: want to be surprised, because if you can just point
Speaker 1: to a Supreme Court justice and say this is how
Speaker 1: they're gonna vote, they're doing a terrible job. They're voting ideologically,
Speaker 1: not on the merits of the case. Yeah, it sounds
Speaker 1: funny to say that you want a Supreme Court justice
Speaker 1: like you never know what they're gonna do. And I'm
Speaker 1: predictable like Clarence Thomas, he didn't speak for seven years.
Speaker 1: Who knew. I did not see that coming A Penny
Speaker 1: farthing to work every day. He didn't know that Judge
Speaker 1: Rehnquist had a huge heroin problem. Oh you got anything else? Uh? Yeah.
Speaker 1: One of the things that Harriet Myers was criticized for
Speaker 1: the Harriet Myers nomination by George W. Bush was that
Speaker 1: somebody had dug up that she had called George W.
Speaker 1: Bush cool at one point, and that was used against here. Huh. Well,
Speaker 1: they were worried that she was she would be beholden
Speaker 1: to him because he was so cool cool. Interesting. Um,
Speaker 1: Actually we didn't cover this. I think it's pretty interesting. Um.
Speaker 1: Arthur Goldberg appointment of John F. Kennedy. He was Jewish,
Speaker 1: and he took his oath on the Hebrew Bible and
Speaker 1: on the traditional Official Court Bible, which is a Christian Bible,
Speaker 1: and he signed that because everyone has signed it. And
Speaker 1: he said, you know, I just want to I'm not
Speaker 1: gonna make a big deal out of this, even though
Speaker 1: I'm Jewish. I'll sign the Christian Bible just to kind
Speaker 1: of maintain that continuity. But when he was um, he
Speaker 1: said it was really neat. When he was sitting at
Speaker 1: his bench for the first time, he uh, he opened
Speaker 1: up the drawer and there was a copy of the Constitution,
Speaker 1: because he said it was a dog gear to copy
Speaker 1: of the Constitution that actually belonged and it was signed
Speaker 1: by who Oliver Wendell Holmes. Pretty neat was just in
Speaker 1: that drawer. He calls him that old yankee from a limp.
Speaker 1: This no idea what that means, but it meant something
Speaker 1: to Goldberg. I'll tell you that. He said he's looking
Speaker 1: for like a notepad. Yeah, and there was. He thought
Speaker 1: that was pretty awesome. Well, it is pretty awesome. And
Speaker 1: if you think Supreme Court nominations are awesome, you should
Speaker 1: go look them up. There's plenty of stuff out there.
Speaker 1: It's pretty fun to watch. Uh, if you go back
Speaker 1: through old articles, every nomination cycle or whatever pattern it
Speaker 1: follows um has people griping about how you can't tell
Speaker 1: anything about this nominee and they never say, well, it's
Speaker 1: like that for all nominees. Anyway, take a trip down
Speaker 1: memory lane. You'll amuse yourself. You can also type in
Speaker 1: the words Freme Court in the search bar. How stuff works.
Speaker 1: And since I said Supreme Court, it's time for listening.
Speaker 1: Now I'm gonna call this Georgia connection to Trail of Tears. Hey, guys.
Speaker 1: I enjoyed the episodes on Trail of Tears, which I
Speaker 1: literally just finished. Even Calhoun, Georgia, which is home to
Speaker 1: the new ektoa She says yeah, she says, oh, even
Speaker 1: it's He's serious, sir, And I think that's right historic site.
Speaker 1: It is home to the print shop where the first
Speaker 1: English language Cherokee newspaper was printed, the home of Samuel
Speaker 1: wools Stuff, among other things. It's a beautiful and fascinating place.
Speaker 1: I think all uh North Georgia kids have gone on
Speaker 1: a field trip there at least once. There are also
Speaker 1: road signs that drive past every time I drive to
Speaker 1: and from my mother's house, indicating that I am actually
Speaker 1: driving where the Cherokee marched from their homes, very sobering.
Speaker 1: The home of Chief Van is also nearby. I didn't
Speaker 1: know that I'm gonna have to go see that stuff. Yeah,
Speaker 1: because it's not too far. I enjoy your history episodes
Speaker 1: because the way you explain history in layman's terms and
Speaker 1: make it interesting to someone like me who couldn't quite
Speaker 1: stay awake in history class in school. I believe learning
Speaker 1: about history is important to help prevent society from repeating big,
Speaker 1: shameful Calcy Mistakes. Thanks for the work you do and
Speaker 1: all the stuff we should know. Have a blessed day.
Speaker 1: That is from Tiffany Waits and Tiffany if you don't
Speaker 1: listen to stuff you miss in history class from our
Speaker 1: colleagues Tracy and Holly, you should check that out, dude,
Speaker 1: for sure, it's great. It sounds like you'd be right
Speaker 1: up our alley. Who was it, Tiffany Waits? Thanks a lot, Tiffany,
Speaker 1: we appreciate you writing in and if you want to
Speaker 1: be like her and get in touch with us to
Speaker 1: tell us some cool stuff, you can tweet to us
Speaker 1: at s y s K podcast or josh um Clark.
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