1 00:00:00,080 --> 00:00:04,040 Speaker 1: Neil Gorcich's nomination may prove as transformative for the Senate 2 00:00:04,080 --> 00:00:07,400 Speaker 1: as the Supreme Court. There's a deep partisan divide today 3 00:00:07,440 --> 00:00:10,680 Speaker 1: as as a Senate committee takes up the nomination, Democrat 4 00:00:10,720 --> 00:00:14,640 Speaker 1: Diane Feinstein of California decried Gorst's strict adherence to the 5 00:00:14,680 --> 00:00:19,720 Speaker 1: Constitution's words and approach known as originalism. If we were 6 00:00:19,760 --> 00:00:25,040 Speaker 1: to dogmatically adhere to originalist interpretations, then we would still 7 00:00:25,079 --> 00:00:29,800 Speaker 1: have segregated schools and bands on interracial marriage, women wouldn't 8 00:00:29,800 --> 00:00:33,599 Speaker 1: be entitled to equal protection under the law, and government 9 00:00:33,640 --> 00:00:40,880 Speaker 1: discrimination against LGBT Americans would be permitted. Republicans like Chuck 10 00:00:40,920 --> 00:00:44,080 Speaker 1: Grassley of Iowa called Gorst a judge who simply applies 11 00:00:44,120 --> 00:00:47,839 Speaker 1: the law as it is written. He has the highest 12 00:00:48,159 --> 00:00:56,480 Speaker 1: level of professional qualifications, including integrity, confidence, and temperament. That 13 00:00:56,560 --> 00:00:59,760 Speaker 1: actually was Orn Hatch, not Chuck Grassley. The panel is 14 00:01:00,080 --> 00:01:02,640 Speaker 1: is to send the nomination to the full Senate, where 15 00:01:02,720 --> 00:01:06,560 Speaker 1: a showdown could permanently change the rules for Supreme Court nominations, 16 00:01:06,880 --> 00:01:11,040 Speaker 1: and increasingly appears that to get Corsage confirmed, Republicans may 17 00:01:11,080 --> 00:01:14,200 Speaker 1: have to abolish the right to filibuster Supreme Court nominees 18 00:01:14,920 --> 00:01:17,800 Speaker 1: with us to talk about the Gorcert's nomination and confirmation fight. 19 00:01:18,160 --> 00:01:21,240 Speaker 1: Jim Copeland, director of Legal Policy at the Manhattan Institute, 20 00:01:21,520 --> 00:01:24,640 Speaker 1: and Michelle Jowando, Vice president of Legal Progress at the 21 00:01:24,640 --> 00:01:28,160 Speaker 1: Center for American Progress, and she has been at today's 22 00:01:28,440 --> 00:01:33,200 Speaker 1: UH Senate Panel Senate Judiciary Committee preceding Jim, let's start 23 00:01:33,240 --> 00:01:35,920 Speaker 1: with you. Just walk us through what you think is 24 00:01:36,040 --> 00:01:40,880 Speaker 1: likely to happen this week with the Gorcish domination. Well, 25 00:01:41,160 --> 00:01:43,880 Speaker 1: clearly is going to get reported out of committee, and 26 00:01:44,080 --> 00:01:47,200 Speaker 1: the committee is likely to do this on partisan lines, 27 00:01:47,520 --> 00:01:51,520 Speaker 1: strict partisan lines. Um, that's not super surprising, given that 28 00:01:51,640 --> 00:01:54,920 Speaker 1: the Judiciary Committee tends to be a bit more polarized 29 00:01:54,920 --> 00:01:58,760 Speaker 1: than partisan in recent years than than the entire body. 30 00:01:59,240 --> 00:02:03,840 Speaker 1: What's not leer is whether there will be sufficient a 31 00:02:03,880 --> 00:02:07,720 Speaker 1: sufficient number of Democrats senators to launch a filibuster and 32 00:02:07,920 --> 00:02:14,000 Speaker 1: try to prevent a vote on Judge gorse is just confirmation. Um, 33 00:02:14,360 --> 00:02:15,679 Speaker 1: it's not clear to me. I think it's going to 34 00:02:15,760 --> 00:02:18,720 Speaker 1: be pretty close as to whether they have the requisite 35 00:02:18,960 --> 00:02:22,480 Speaker 1: forty one votes to do that. Um. If they do 36 00:02:22,480 --> 00:02:25,440 Speaker 1: do that, I fully expect that the Republican majority will 37 00:02:25,639 --> 00:02:30,600 Speaker 1: will eliminate the filibuster for the Supreme Court the same 38 00:02:30,680 --> 00:02:33,720 Speaker 1: way it was done for other presidential appointments, including lower 39 00:02:33,720 --> 00:02:37,960 Speaker 1: court judges under Democratic leadership when Barack Obama was president, 40 00:02:38,040 --> 00:02:40,520 Speaker 1: And I fully expect that by the end of the week, 41 00:02:41,200 --> 00:02:46,359 Speaker 1: Judge Corsets will be Justice Corsage, Michelle. It's one thing 42 00:02:46,400 --> 00:02:48,600 Speaker 1: for the Democrats to say we oppose an nominee, and 43 00:02:48,680 --> 00:02:50,920 Speaker 1: you know, you can argue about whether or not the 44 00:02:51,000 --> 00:02:54,560 Speaker 1: nominees in the mainstream, etcetera. Doing a filibuster, particularly with 45 00:02:54,600 --> 00:02:57,840 Speaker 1: the consequences that may flow that Jim just outlined, is 46 00:02:57,919 --> 00:03:00,480 Speaker 1: kind of a slightly bigger deal at least. What is 47 00:03:00,520 --> 00:03:05,680 Speaker 1: the Democrats rationale for setting for going for a filibuster 48 00:03:05,760 --> 00:03:09,800 Speaker 1: in this case? You know, I think it's always important 49 00:03:09,840 --> 00:03:12,040 Speaker 1: to think so much for having me back on you know, 50 00:03:12,160 --> 00:03:15,639 Speaker 1: it's it's important to also put context of where we are. 51 00:03:16,280 --> 00:03:21,080 Speaker 1: Um you know, many have lamented uh Democrats saying that 52 00:03:21,160 --> 00:03:25,880 Speaker 1: we want a standard sixty vote threshold for the confirmation 53 00:03:25,960 --> 00:03:29,440 Speaker 1: to move to the confirmation of Judge Neil Gorsage. But 54 00:03:29,600 --> 00:03:32,760 Speaker 1: if you look at history and it passed this prologue, 55 00:03:33,400 --> 00:03:38,560 Speaker 1: the confirmations and moving forward with Justice Elena Kagan, Justice 56 00:03:39,680 --> 00:03:45,520 Speaker 1: Mayor Justice um Alito, as well as Chief Justice H. 57 00:03:45,840 --> 00:03:49,360 Speaker 1: Roberts were all able to cross the sixty vote threshold. 58 00:03:49,760 --> 00:03:52,760 Speaker 1: So we are now at a place where your leadership, 59 00:03:53,000 --> 00:03:56,640 Speaker 1: Senate Republican leadership were saying that's the Supreme Court vote 60 00:03:56,760 --> 00:04:00,160 Speaker 1: the highest vote um, the most the highest court the 61 00:04:00,240 --> 00:04:05,040 Speaker 1: land should be subjected to a lower majority only rule. 62 00:04:05,160 --> 00:04:07,920 Speaker 1: And I think it's unfortunate because that is at a 63 00:04:08,000 --> 00:04:12,120 Speaker 1: time when we've had immense partisan divide, being able to 64 00:04:12,160 --> 00:04:14,839 Speaker 1: say that all members should be able to find some 65 00:04:15,160 --> 00:04:18,640 Speaker 1: consensus with whoever this nominee. And it's something that we've 66 00:04:18,640 --> 00:04:22,360 Speaker 1: seen time and memorial um not being able to do 67 00:04:22,400 --> 00:04:25,839 Speaker 1: that rule permanently break the Senate. And that is on 68 00:04:26,120 --> 00:04:29,720 Speaker 1: the leadership Mitch McConnell and others for doing that, no 69 00:04:29,760 --> 00:04:32,680 Speaker 1: one else. I just want to be clear, Michelle, and 70 00:04:32,680 --> 00:04:35,720 Speaker 1: I don't think you're saying otherwise. But sam Alito got 71 00:04:35,800 --> 00:04:38,640 Speaker 1: fifty eight votes to be confirmed, but he did get 72 00:04:39,440 --> 00:04:42,640 Speaker 1: more than sixty votes to bring the nomination up to 73 00:04:42,800 --> 00:04:47,880 Speaker 1: the Senate floor. Sam Alito across the culture threshold of 74 00:04:48,000 --> 00:04:51,919 Speaker 1: sixty plus um while he got fifty eight votes on 75 00:04:52,000 --> 00:04:54,960 Speaker 1: the final vote, but many if you understand kind of 76 00:04:55,000 --> 00:04:59,120 Speaker 1: Senate rules, the threshold to go to vote for the 77 00:04:59,240 --> 00:05:02,920 Speaker 1: final vote moving forward is crossing a sixty vote threshold 78 00:05:02,960 --> 00:05:05,919 Speaker 1: to the last four Supreme Court nominees were able to 79 00:05:05,960 --> 00:05:11,000 Speaker 1: meet that. Jim, do you laments that we're moving to 80 00:05:11,080 --> 00:05:13,800 Speaker 1: a world or maybe moving to a world where it 81 00:05:14,200 --> 00:05:16,359 Speaker 1: doesn't take the sixty votes where it only it's going 82 00:05:16,400 --> 00:05:18,599 Speaker 1: to take fifty one votes to get somebody on the 83 00:05:18,600 --> 00:05:22,400 Speaker 1: Supreme Court. I actually do not. I was on record 84 00:05:22,680 --> 00:05:26,440 Speaker 1: during the last three administrations when these filibusters of judicial 85 00:05:26,480 --> 00:05:30,960 Speaker 1: nominees were being discussed. I've I've been on record consistently, 86 00:05:31,680 --> 00:05:34,840 Speaker 1: unlike most of these politicians who flipped depending on who's 87 00:05:34,839 --> 00:05:37,760 Speaker 1: in charge, but I've been on record consistently saying that 88 00:05:38,600 --> 00:05:42,040 Speaker 1: the founders, the framers of the Constitution knew how to 89 00:05:42,080 --> 00:05:46,720 Speaker 1: create supermajority requirements. They did so in certain cases, they 90 00:05:46,720 --> 00:05:49,520 Speaker 1: did not do so with the advice and consent power 91 00:05:50,080 --> 00:05:54,160 Speaker 1: for presidential nominees. And so I think the filibuster rule, 92 00:05:54,279 --> 00:05:56,719 Speaker 1: whatever its utility may or may not be in the 93 00:05:56,960 --> 00:06:00,600 Speaker 1: ordinary legislative process, which is a slightly different UH sort 94 00:06:00,600 --> 00:06:06,280 Speaker 1: of conception, shouldn't be the rule where a minority party 95 00:06:06,400 --> 00:06:11,120 Speaker 1: UH can can hold up the confirmation from the majority. 96 00:06:11,200 --> 00:06:13,760 Speaker 1: And and as you noted before, Sam Alito did get 97 00:06:13,800 --> 00:06:17,520 Speaker 1: fifty eight votes. Justice Thomas got fifty two votes. Uh, 98 00:06:17,560 --> 00:06:22,400 Speaker 1: this sort of historical look at a sixty vote requirement 99 00:06:22,480 --> 00:06:25,760 Speaker 1: is an a historical look. It's just not the case. 100 00:06:25,839 --> 00:06:29,280 Speaker 1: The only, the only case where we did see a 101 00:06:29,320 --> 00:06:35,640 Speaker 1: filibuster was a bipartisan filibuster of a forts generally, as Johnson, 102 00:06:35,920 --> 00:06:38,279 Speaker 1: you're listening to Bloomberg Law. We're talking about the Neil 103 00:06:38,279 --> 00:06:41,480 Speaker 1: Gorcer's nomination and the prospect that it might provoke a 104 00:06:41,600 --> 00:06:44,520 Speaker 1: huge fight on the Senate floor. We just got word 105 00:06:44,520 --> 00:06:48,440 Speaker 1: Bloomberg News now reporting Democrats appear to have enough votes 106 00:06:48,520 --> 00:06:52,839 Speaker 1: to filibuster the Neil Gorcer domination. Democratic Senator Chris Colons 107 00:06:53,000 --> 00:06:56,440 Speaker 1: just said that during a committee hearing that he will 108 00:06:56,920 --> 00:07:00,240 Speaker 1: vote to block a vote on Neil Gorcer. We're talking 109 00:07:00,279 --> 00:07:02,880 Speaker 1: with Michelle jo Wando at the Center for American Progress 110 00:07:02,920 --> 00:07:07,479 Speaker 1: and Jim Copeland of the Manhattan Institute. Michelle, there's a 111 00:07:07,560 --> 00:07:11,240 Speaker 1: school of thought, a number of Democrats have articulated this 112 00:07:11,360 --> 00:07:14,040 Speaker 1: that if the filibuster is eliminated, what we will get 113 00:07:14,120 --> 00:07:19,240 Speaker 1: from both sides are more extreme Supreme Court nominees. Uh. 114 00:07:19,320 --> 00:07:23,200 Speaker 1: Do you subscribe to that thinking? And if if so, 115 00:07:23,440 --> 00:07:26,480 Speaker 1: isn't that something we should all be worried about. Well, 116 00:07:26,520 --> 00:07:29,120 Speaker 1: I think it's unfortunate, and I did want to share 117 00:07:29,240 --> 00:07:35,400 Speaker 1: about the forty one no vote or requirement for cloture there. Um. 118 00:07:35,480 --> 00:07:38,080 Speaker 1: One of the things that I think is important to 119 00:07:38,120 --> 00:07:42,560 Speaker 1: add contextually to this conversation is that in twenty thirteen, 120 00:07:42,640 --> 00:07:47,440 Speaker 1: when the Democrats changed the rules on lower court nominations, um, 121 00:07:47,560 --> 00:07:50,960 Speaker 1: they did so when they faced a far greater scale 122 00:07:50,960 --> 00:07:53,920 Speaker 1: of obstruction. So by the time they did that, they 123 00:07:54,080 --> 00:07:58,680 Speaker 1: faced nearly five hundred filibusters and spent years trying to 124 00:07:58,800 --> 00:08:03,640 Speaker 1: negotiate ways of working with the Senate Republicans. If you 125 00:08:03,760 --> 00:08:06,640 Speaker 1: contrast that moment, so from two thousand or nine to 126 00:08:06,760 --> 00:08:10,640 Speaker 1: twenty thirteen, almost five hundred filibusters to this moment, the 127 00:08:10,880 --> 00:08:15,400 Speaker 1: very first filibuster of Donald Trump, one of Donald Trump's nominees, 128 00:08:16,000 --> 00:08:21,320 Speaker 1: you immediately see see Senate leadership moving to change Senate rules. 129 00:08:21,720 --> 00:08:25,280 Speaker 1: I think many people would say that that's a disproportionate response, 130 00:08:25,680 --> 00:08:29,160 Speaker 1: and I think to the extent that it will change 131 00:08:29,200 --> 00:08:31,960 Speaker 1: the tenor of how we work with people in the Senate. 132 00:08:32,000 --> 00:08:35,000 Speaker 1: As someone who spent many years in the Senate, it 133 00:08:35,240 --> 00:08:38,679 Speaker 1: changes who can come to the table, who can be 134 00:08:38,760 --> 00:08:41,760 Speaker 1: considered someone you can work with and compromise, and I 135 00:08:41,800 --> 00:08:45,320 Speaker 1: think it's unfortunate, and I think Majority Leader McConnell should 136 00:08:45,360 --> 00:08:50,080 Speaker 1: really evaluate whether it's worth changing the rules or whether 137 00:08:50,200 --> 00:08:53,959 Speaker 1: or not they should just change the nominee. Jim lurking 138 00:08:54,080 --> 00:08:57,920 Speaker 1: over this conversation, at least for Democrats, is the fact 139 00:08:57,920 --> 00:09:01,920 Speaker 1: that the Republican majority Senate, led by Mitch McConnell last year, 140 00:09:01,960 --> 00:09:04,720 Speaker 1: refused to even give a hearing, much less a vote 141 00:09:04,800 --> 00:09:09,520 Speaker 1: to um Merrick Garland, who had been nominated by President Obama. 142 00:09:10,200 --> 00:09:12,720 Speaker 1: What's the Republican response to that point when we start 143 00:09:12,720 --> 00:09:16,720 Speaker 1: talking about whether a filibusters appropriate. I don't know what 144 00:09:16,800 --> 00:09:21,320 Speaker 1: the Republican response per se would be, but but obviously 145 00:09:21,320 --> 00:09:23,760 Speaker 1: the situations are different, and and they're different because the 146 00:09:23,760 --> 00:09:26,000 Speaker 1: Republicans had the majority then, just as they have the 147 00:09:26,040 --> 00:09:29,959 Speaker 1: majority now. It's actually it's been extremely rare in modern 148 00:09:30,080 --> 00:09:36,480 Speaker 1: American history where a president has had um being have 149 00:09:36,559 --> 00:09:38,280 Speaker 1: been of one party and the Senate has been of 150 00:09:38,360 --> 00:09:39,720 Speaker 1: the other party, and then you've had a sort of 151 00:09:39,720 --> 00:09:41,920 Speaker 1: nominee to go forward. And often when you've had that 152 00:09:41,960 --> 00:09:45,680 Speaker 1: sort of situation, Uh, you saw a situation, you saw 153 00:09:45,720 --> 00:09:50,760 Speaker 1: the Senate being accommodated for instance, when when Dwight Eisenhower 154 00:09:50,840 --> 00:09:55,280 Speaker 1: put forward liberal Democrat William Brennan to the Court in 155 00:09:55,280 --> 00:09:57,760 Speaker 1: that sort of situation. So, but it's an extremely resort 156 00:09:57,800 --> 00:10:01,280 Speaker 1: of situation, particularly in an election year. And I think 157 00:10:01,280 --> 00:10:04,600 Speaker 1: from the Republican's perspective, they knew that if the shoe 158 00:10:04,600 --> 00:10:06,199 Speaker 1: had been on the other foot, the Democrats would have 159 00:10:06,200 --> 00:10:08,600 Speaker 1: done exactly that. And they knew that because Joe Biden 160 00:10:08,679 --> 00:10:11,240 Speaker 1: said it the then the Vice President when he had 161 00:10:11,240 --> 00:10:13,680 Speaker 1: been chairman of the Judiciary Committee. They knew it because 162 00:10:13,760 --> 00:10:15,960 Speaker 1: Chuck Schumert said it. So they knew very well the 163 00:10:16,000 --> 00:10:18,880 Speaker 1: Democrats would have done the same sort of maneuver. And 164 00:10:18,920 --> 00:10:22,719 Speaker 1: they said, well, you know, listen, we're the majority, and uh, 165 00:10:23,440 --> 00:10:25,559 Speaker 1: we're not going to go forward with this nomination in 166 00:10:25,600 --> 00:10:28,360 Speaker 1: the election year. It was a risky move. It was 167 00:10:28,360 --> 00:10:31,800 Speaker 1: a risky move because had Hillary Clinton won the election, uh, 168 00:10:31,840 --> 00:10:34,360 Speaker 1: she would have had much more leverage uh and been 169 00:10:34,400 --> 00:10:37,560 Speaker 1: able to put forward someone potentially probably she'd won the election, 170 00:10:37,640 --> 00:10:39,960 Speaker 1: she also would have pulled the Senate with her, and 171 00:10:39,960 --> 00:10:42,079 Speaker 1: in that sort of situation could have put forward someone 172 00:10:42,400 --> 00:10:46,079 Speaker 1: uh that the Democratic base, the left wing progressive Democratic base, 173 00:10:46,120 --> 00:10:48,320 Speaker 1: would have been happier with so um. But but I mean, 174 00:10:48,360 --> 00:10:50,600 Speaker 1: I think that's really what was going on in that 175 00:10:50,720 --> 00:10:53,959 Speaker 1: sort of situation. And and I putt emphasize here again 176 00:10:54,000 --> 00:10:56,000 Speaker 1: where the shoe on the other foot. There's no question 177 00:10:56,320 --> 00:10:58,640 Speaker 1: what the Democrats would be doing a week before the election. 178 00:10:58,720 --> 00:11:02,920 Speaker 1: Tim Kine, that as presidential domine now back in the Senate, 179 00:11:03,480 --> 00:11:05,120 Speaker 1: said exactly that that they were going to use the 180 00:11:05,160 --> 00:11:08,600 Speaker 1: nuclear oxen to get rid of the filibuster, to get remember, 181 00:11:08,640 --> 00:11:11,840 Speaker 1: let Michelle responded that we only have about thirty seconds left. Michelle, 182 00:11:12,120 --> 00:11:14,600 Speaker 1: isn't it isn't true Democrats, you know, both sides have 183 00:11:14,640 --> 00:11:16,400 Speaker 1: been fighting on this. Would would would they have done 184 00:11:16,440 --> 00:11:21,360 Speaker 1: the same thing? No, And it's important to also mention 185 00:11:21,400 --> 00:11:24,480 Speaker 1: this two hundred and ninety three days. That was the 186 00:11:24,559 --> 00:11:27,680 Speaker 1: length of time that once the announcement from President Barack 187 00:11:27,720 --> 00:11:30,720 Speaker 1: Obama was made of Merrick Garland that he didn't he 188 00:11:30,800 --> 00:11:33,199 Speaker 1: wasn't even able to meet with all of the senators, 189 00:11:33,360 --> 00:11:36,600 Speaker 1: much less perceive a hearing. And even if you decided 190 00:11:36,760 --> 00:11:39,320 Speaker 1: that you were going to ultimately vote against him, to 191 00:11:39,440 --> 00:11:43,160 Speaker 1: not move forward to have a hearing or a vote 192 00:11:43,360 --> 00:11:46,400 Speaker 1: was unprecedented, and it was one of the low points 193 00:11:46,440 --> 00:11:49,600 Speaker 1: of Senate history. I think we should remember that if 194 00:11:49,600 --> 00:11:54,480 Speaker 1: the Republicans eliminate the sixty vote requirement for corsage, I think, unfortunately, 195 00:11:54,520 --> 00:11:57,680 Speaker 1: it's only a matter of time before you do away 196 00:11:57,760 --> 00:12:00,280 Speaker 1: altogether with the filibuster rule, and I think that's a 197 00:12:00,600 --> 00:12:03,719 Speaker 1: low point for the Senate altogether. Michelle Jawando of the 198 00:12:03,720 --> 00:12:06,760 Speaker 1: Center for American Progress, Jim Copeland of the Manhattan Institute, 199 00:12:06,800 --> 00:12:08,600 Speaker 1: thank you for joining us on Bloomberg Law.