1 00:00:00,080 --> 00:00:02,800 Speaker 1: Judge J. Harvey Wilkinson the Third has been serving on 2 00:00:02,840 --> 00:00:05,320 Speaker 1: the Fourth Circuit Court of Appeal since his appointment by 3 00:00:05,320 --> 00:00:10,080 Speaker 1: President Ronald Reagan. During the administration of President George W. Bush, 4 00:00:10,080 --> 00:00:12,160 Speaker 1: he was often mentioned as a possible candidate for the 5 00:00:12,160 --> 00:00:15,280 Speaker 1: Supreme Court. He has a new memoir out called All 6 00:00:15,360 --> 00:00:18,400 Speaker 1: Falling Faiths, Reflections on the promise and Failure of the 7 00:00:18,480 --> 00:00:21,079 Speaker 1: nineteen sixties. And he's here with us today and Bloomberg 8 00:00:21,120 --> 00:00:23,440 Speaker 1: alaw to talk about the evolution of the Supreme Court 9 00:00:23,560 --> 00:00:26,840 Speaker 1: and how the appointment of Judge Gorcich may affect its direction. 10 00:00:26,960 --> 00:00:31,880 Speaker 1: Assuming the Judge Gorsch is confirmed. Judge Wilkinson, welcome to 11 00:00:31,880 --> 00:00:36,400 Speaker 1: the program. You know, Justice Scalia was famously an originalist 12 00:00:37,159 --> 00:00:41,240 Speaker 1: in his judicial philosophy. Judge Gorcich is known as an originalist. 13 00:00:41,960 --> 00:00:45,360 Speaker 1: Many judges on the left have now talked about originalism 14 00:00:45,400 --> 00:00:47,840 Speaker 1: as one of one of, if not the dominant motive 15 00:00:48,159 --> 00:00:52,320 Speaker 1: interpretation in the Supreme Court these days. Is the Court 16 00:00:52,360 --> 00:00:54,920 Speaker 1: in fact now an originalist court? Is that the way 17 00:00:54,960 --> 00:00:58,280 Speaker 1: that uh, we should be thinking about how the Court 18 00:00:59,080 --> 00:01:04,040 Speaker 1: addresses cases that come before it. Well, I think there's 19 00:01:04,040 --> 00:01:06,600 Speaker 1: a great deal of you point gave a great deal 20 00:01:06,640 --> 00:01:09,800 Speaker 1: of difference in in among the justices as to how 21 00:01:09,840 --> 00:01:15,920 Speaker 1: attached they are to originalists. Even some originalists are strong originalists, 22 00:01:15,920 --> 00:01:20,600 Speaker 1: and all those are fairly faint originalist um and Justice 23 00:01:20,600 --> 00:01:25,720 Speaker 1: Scalia once called himself a fainthearted originalist, and Justice Thomas 24 00:01:25,880 --> 00:01:30,160 Speaker 1: is probably a more um avid originalists. So there's a 25 00:01:30,200 --> 00:01:35,320 Speaker 1: real spectrum here that we're we're talking about. And um. 26 00:01:35,440 --> 00:01:40,000 Speaker 1: Originalism is not quite the same as liberalism or conservatism. 27 00:01:40,040 --> 00:01:44,120 Speaker 1: I mean, Scalia is generally regarded as a conservative, but 28 00:01:44,680 --> 00:01:47,240 Speaker 1: he cast some very liberal votes. Saw him on the 29 00:01:47,360 --> 00:01:50,720 Speaker 1: issue of flag burning and the right to cross examination, 30 00:01:50,880 --> 00:01:56,000 Speaker 1: and yeah, he invalidated, devoted to invalidate criminal statutes such 31 00:01:56,040 --> 00:02:01,040 Speaker 1: as the Armed Career Criminal Act. So it's important not 32 00:02:01,080 --> 00:02:04,880 Speaker 1: to just take on that word originalism and and see 33 00:02:04,920 --> 00:02:08,040 Speaker 1: it as one and the same with conservatism, because it 34 00:02:08,200 --> 00:02:13,560 Speaker 1: often isn't Judge Wilkinson, Sometimes justices, when they are on 35 00:02:13,600 --> 00:02:17,160 Speaker 1: the bench for a while, don't fulfill the expectations of 36 00:02:17,200 --> 00:02:20,280 Speaker 1: the presidents who appointed them. Tell us a little bit 37 00:02:20,280 --> 00:02:26,880 Speaker 1: about what happens. Well, every president might be in for 38 00:02:26,960 --> 00:02:31,520 Speaker 1: some disappointments and surprises, and that's that's good, because judiciary 39 00:02:32,240 --> 00:02:37,040 Speaker 1: doesn't take a a justice doesn't take an oath to 40 00:02:37,120 --> 00:02:40,919 Speaker 1: support the president of the United States. A justice takes 41 00:02:40,919 --> 00:02:44,400 Speaker 1: an oath to follow the law and to support the 42 00:02:44,440 --> 00:02:48,880 Speaker 1: constitution of the United States. So the fact that presidents 43 00:02:48,880 --> 00:02:52,480 Speaker 1: may be disappointed doesn't bother me at all. Uh. The 44 00:02:52,639 --> 00:02:57,760 Speaker 1: history is just full of presidential disappointments, and uh, you 45 00:02:57,840 --> 00:03:01,800 Speaker 1: have Eisenhower was disappointed where Warren and Brennan and Nixon 46 00:03:01,840 --> 00:03:05,920 Speaker 1: was disappointed with Blackman, and maybe George H. W. Bush 47 00:03:06,000 --> 00:03:12,119 Speaker 1: was somewhat surprised by David Suitor. And so their surprises 48 00:03:12,280 --> 00:03:17,240 Speaker 1: that lie in store. And that's particularly true because justices 49 00:03:17,240 --> 00:03:20,800 Speaker 1: are living longerlike all of us, and they're serving much longer, 50 00:03:21,240 --> 00:03:25,000 Speaker 1: twice as long now as their ten years during the 51 00:03:25,120 --> 00:03:28,720 Speaker 1: nineteenth century. And we have no idea what the present 52 00:03:28,800 --> 00:03:31,800 Speaker 1: justices are going to be saying or thinking in two 53 00:03:31,840 --> 00:03:35,080 Speaker 1: thousand and thirty or two thousand and forty, And we 54 00:03:35,120 --> 00:03:38,040 Speaker 1: don't have any idea what issues they're going to be 55 00:03:38,160 --> 00:03:42,600 Speaker 1: confronted with. I mean, I had no idea when I 56 00:03:42,640 --> 00:03:47,160 Speaker 1: came on the Court of Appeals that I'd be dealing 57 00:03:47,200 --> 00:03:51,440 Speaker 1: with terrorism issues in the wake of nine eleven or 58 00:03:51,800 --> 00:03:55,080 Speaker 1: some of these very difficult and challenging questions dealing with 59 00:03:55,160 --> 00:03:59,880 Speaker 1: the AIDS virus, and so you can't you can't antest 60 00:04:00,120 --> 00:04:04,080 Speaker 1: pay how science and technology is going to change the 61 00:04:04,160 --> 00:04:08,400 Speaker 1: face of the Court's docket. So I would say any 62 00:04:08,440 --> 00:04:12,040 Speaker 1: president when they make an appointment, they got to understand 63 00:04:12,080 --> 00:04:14,360 Speaker 1: they're going to be in for some disappointments and they're 64 00:04:14,400 --> 00:04:18,039 Speaker 1: going to be in for some surprises. Well, you you've 65 00:04:18,040 --> 00:04:21,560 Speaker 1: been on the bench for uh fairly, you know, for 66 00:04:21,680 --> 00:04:25,720 Speaker 1: through a number of presidents now, and you've seen the 67 00:04:26,080 --> 00:04:28,960 Speaker 1: way confirmation battles happen, and they're often treated in the 68 00:04:29,000 --> 00:04:31,800 Speaker 1: opposite of what you're talking about. People in the political 69 00:04:31,800 --> 00:04:35,120 Speaker 1: world seemed to think that, you know, the ideology of 70 00:04:35,160 --> 00:04:37,640 Speaker 1: the person going on the Supreme Court is extremely important 71 00:04:37,720 --> 00:04:40,440 Speaker 1: and sort of predictable, and they want to vote based 72 00:04:40,480 --> 00:04:43,359 Speaker 1: on that. A lot of the time. You had a 73 00:04:43,440 --> 00:04:45,640 Speaker 1: judge in Merrick Garland who didn't even get up for 74 00:04:45,680 --> 00:04:48,440 Speaker 1: a vote. Now you have the Democrats saying that they 75 00:04:48,480 --> 00:04:51,840 Speaker 1: may put up a fight on Judge Gorcich. How does 76 00:04:52,240 --> 00:05:00,440 Speaker 1: this sort of politicization of the confirmation process affect the bench. Well, 77 00:05:00,640 --> 00:05:04,520 Speaker 1: if there's several different interests here. The Senators have a 78 00:05:04,880 --> 00:05:10,320 Speaker 1: have an obligation, a constitutional obligation to um look into 79 00:05:10,400 --> 00:05:14,080 Speaker 1: a nominee before voting to confirm or not to confirm, 80 00:05:14,279 --> 00:05:18,000 Speaker 1: and um. And it's not a bad thing at all 81 00:05:18,160 --> 00:05:23,680 Speaker 1: for the political for the judiciary, for the political process 82 00:05:23,760 --> 00:05:27,400 Speaker 1: to way in because it is the one chance that 83 00:05:27,520 --> 00:05:33,360 Speaker 1: the United States Senate has to uh to uh weigh 84 00:05:33,440 --> 00:05:37,120 Speaker 1: in and have an impact on the on the judiciary. 85 00:05:37,160 --> 00:05:39,640 Speaker 1: And you don't want a judicial You want a judicial 86 00:05:39,680 --> 00:05:43,359 Speaker 1: branch that's independent of politics, to be sure, but you 87 00:05:43,400 --> 00:05:47,159 Speaker 1: don't want it to be totally divorced from politics and 88 00:05:47,240 --> 00:05:55,760 Speaker 1: a democratic society. So we're doing uh, we're balancing some 89 00:05:55,839 --> 00:05:59,640 Speaker 1: competing interest here. But if you go too far um 90 00:05:59,800 --> 00:06:03,320 Speaker 1: and try to get justices to commit to this issue 91 00:06:03,560 --> 00:06:08,839 Speaker 1: or that issue, or have checklist and litmus tests and everything, um, 92 00:06:09,040 --> 00:06:13,520 Speaker 1: that begins to the public then begins to see the 93 00:06:13,640 --> 00:06:21,480 Speaker 1: judiciary is a political body, and we begin to lose respects. So, yes, 94 00:06:21,560 --> 00:06:24,880 Speaker 1: politics has a role in the appointment of judges, but 95 00:06:24,920 --> 00:06:27,560 Speaker 1: I also always hope that it would be carried out 96 00:06:28,080 --> 00:06:32,560 Speaker 1: with respect to the independence of the judiciary, because if 97 00:06:32,600 --> 00:06:36,279 Speaker 1: the public sees us has nothing more than politicians in 98 00:06:36,440 --> 00:06:42,120 Speaker 1: robes and and sort of following our own preferences rather 99 00:06:42,200 --> 00:06:45,400 Speaker 1: than sticking to the constitution and the law, you're going 100 00:06:45,440 --> 00:06:49,480 Speaker 1: to see a lessening of public respects. So yes, let 101 00:06:49,560 --> 00:06:52,960 Speaker 1: politics way in. But my gosh, we're such a different 102 00:06:53,000 --> 00:06:58,160 Speaker 1: branch of government, totally different from the legislative and executive, 103 00:06:58,200 --> 00:07:01,560 Speaker 1: and I hope that difference will be respect Judge along 104 00:07:01,600 --> 00:07:05,640 Speaker 1: those lines and with the esteem that the public should 105 00:07:05,640 --> 00:07:08,440 Speaker 1: hold the Supreme Court as the highest court in the land. 106 00:07:09,080 --> 00:07:12,600 Speaker 1: Do you believe that it's important to have it remained 107 00:07:12,680 --> 00:07:15,360 Speaker 1: that there will be sixty votes to appoint a Supreme 108 00:07:15,360 --> 00:07:20,000 Speaker 1: Court justice. Well, that's something that I think is a 109 00:07:20,960 --> 00:07:27,600 Speaker 1: political question, and um, the judge, I think I have 110 00:07:27,720 --> 00:07:30,680 Speaker 1: to exercise of a certain restraint and not not get 111 00:07:30,720 --> 00:07:35,920 Speaker 1: into that kind of thing, because, um, if I did, 112 00:07:36,640 --> 00:07:40,280 Speaker 1: it would it would appear partisan and I just don't 113 00:07:40,280 --> 00:07:43,600 Speaker 1: want to appear that way. So sometimes the most beautiful 114 00:07:43,600 --> 00:07:47,400 Speaker 1: words in the English language are are no comment right 115 00:07:47,480 --> 00:07:51,720 Speaker 1: after home, sweet home, home, sweet home. Indeed, well, Judge, 116 00:07:52,000 --> 00:07:54,680 Speaker 1: one last thing in the in the minute we have left? 117 00:07:54,720 --> 00:07:58,800 Speaker 1: Are you? Judge? Gorcitch is known as a conservative. He's 118 00:07:58,840 --> 00:08:01,720 Speaker 1: replacing a judge who was known as a conservative, although 119 00:08:01,760 --> 00:08:05,480 Speaker 1: somewhat unpredictable. As you mentioned, Um, do you think that 120 00:08:05,560 --> 00:08:08,560 Speaker 1: with Judge Judge Gorcer's going on the bench, there will 121 00:08:08,600 --> 00:08:12,320 Speaker 1: be much change in the way the court approaches issues 122 00:08:12,600 --> 00:08:14,680 Speaker 1: generally or will it be kind of the same as 123 00:08:14,680 --> 00:08:18,400 Speaker 1: it was when Justice Scalia was there. Say, nobody really knows, 124 00:08:18,440 --> 00:08:22,720 Speaker 1: because there's there's there's such a difference and judging on 125 00:08:22,760 --> 00:08:26,080 Speaker 1: the Court of Appeals and judging judging on the Supreme 126 00:08:26,120 --> 00:08:29,240 Speaker 1: Court where you have a weight of ultimate responsibility and 127 00:08:29,320 --> 00:08:33,360 Speaker 1: you have the huge, mega issues and we don't confront 128 00:08:33,440 --> 00:08:37,280 Speaker 1: those at my level on the on the Court of Appeals, 129 00:08:37,320 --> 00:08:42,600 Speaker 1: it's it's much more filling in gaps. So how the 130 00:08:42,679 --> 00:08:46,760 Speaker 1: weight of that responsibility which is just enormous and is 131 00:08:46,800 --> 00:08:50,360 Speaker 1: going to affect someone, I sure can't predict it, and 132 00:08:51,040 --> 00:08:54,200 Speaker 1: I think it's very very tricky to try to do. 133 00:08:54,280 --> 00:09:00,079 Speaker 1: So coming up will be we'll be talking about the 134 00:09:00,360 --> 00:09:04,280 Speaker 1: h about Judge Gorcich with a partner of his, a 135 00:09:04,360 --> 00:09:07,200 Speaker 1: lawyer who worked as his boss at one point. That's 136 00:09:07,200 --> 00:09:10,640 Speaker 1: coming up on Bloomberg Law with Michael Best and June Grasso. 137 00:09:10,800 --> 00:09:13,480 Speaker 1: And thanks to Judge Wilkinson for being on the show 138 00:09:13,559 --> 00:09:14,120 Speaker 1: with us.