WEBVTT - A Measure of Self Restraint.  Adam White Talks To Armstrong & Getty

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<v Speaker 1>To discuss all matters Supreme Court. It's a great pleasure

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<v Speaker 1>to welcome back to the Armstrong and Getty show. Adam

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<v Speaker 1>White the Resident Resident Scholar at the American Enterprise Institute.

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<v Speaker 1>Adam focuses on American constitutionalism, the Supreme Court, the administrative State,

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<v Speaker 1>and is also Assistant Professor of Law and director of

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<v Speaker 1>the Sea, Boyd and Gray Center for the Study of

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<v Speaker 1>the Administrative State at the Antonin Scalia Law School, one

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<v Speaker 1>of the great law schools in America at George Mason University.

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<v Speaker 1>Mr White, how are you, sir? I'm good. Thanks. You

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<v Speaker 1>gotta take some deep breath in that law that long

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<v Speaker 1>business card, I do it short, I declare Adam the

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<v Speaker 1>smartest person on the Supreme Court in America. Well, that's

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<v Speaker 1>that's what you are, brief and and lovely. So hey,

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<v Speaker 1>why don't we start with why is interesting and partisanship

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<v Speaker 1>over the Supreme Court at such a fever pitch these

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<v Speaker 1>days in a way that it really wasn't in decades past. Well,

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<v Speaker 1>it's because of what the Court has done in the

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<v Speaker 1>decades since then. In Justice Scalia put this really powerfully

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<v Speaker 1>in one of his descents, in the one of the

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<v Speaker 1>abortion cases, he said that, you know, to extend just

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<v Speaker 1>this is are worried that the confirmation process is getting

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<v Speaker 1>out of control. Um, they need to take a look

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<v Speaker 1>at themselves and understand that the bigger of a footprint

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<v Speaker 1>that the Supreme Court puts on American politics by deciding

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<v Speaker 1>issues that are better left to the political process, the

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<v Speaker 1>more that the political process will pull the Court into itself.

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<v Speaker 1>And that's what we have now, especially when people are

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<v Speaker 1>are are when people think that that Roe v. Wade

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<v Speaker 1>might someday be at stake. So did the did the

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<v Speaker 1>court change, did the public attitudes change? Or did the

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<v Speaker 1>Senate change? And that we used to confirm these people

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<v Speaker 1>ninety eight to nothing to nothing two that sort of thing,

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<v Speaker 1>and now it's you know, a fight to the death.

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<v Speaker 1>It's a knife fight. And Alley, I'd say the court

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<v Speaker 1>changed first, then the people, and then the Senate caught up.

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<v Speaker 1>I'd say that the Court changed first in expanding all

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<v Speaker 1>sorts of rights that aren't written in the Constitution, like

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<v Speaker 1>in Roe v. Wade in other cases, I'd say that

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<v Speaker 1>the left started to put much more emphasis on the

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<v Speaker 1>Court as a politic cal tool. And then we saw,

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<v Speaker 1>you know, Ted Kennedy others declare war on Robert Bork

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<v Speaker 1>in seven. That was the real turning point. I think

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<v Speaker 1>Republicans took a little while to catch up. They never

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<v Speaker 1>really declared war on set. I mean, they never have

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<v Speaker 1>declared war on on Ginsberg, Brier, Soda, Mayor, and Kagan

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<v Speaker 1>the way that Democrats have to bork Thomas Kavanaugh. They

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<v Speaker 1>even went after David Suitor before they realized he was

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<v Speaker 1>going to be a liberal justice. I'd say that. Then

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<v Speaker 1>finally Republican senators decided we need to take this stuff really,

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<v Speaker 1>really seriously too well. And I suppose we could mention

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<v Speaker 1>that the Congress is in the habit of passing grand

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<v Speaker 1>and glorious legislation that's also very very vague, and then

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<v Speaker 1>lets the court interpret, you know, their grand, grand and

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<v Speaker 1>glorious implementation. Yeah, there's no shortage of that too. I

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<v Speaker 1>spend you know, plenty of time teaching administrative law and

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<v Speaker 1>warning about that problem. So yesterday Joe Biden was asked,

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<v Speaker 1>if he's president, is he in favor of packing the court?

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<v Speaker 1>He wouldn't answer that question because he said it'd be

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<v Speaker 1>a distraction. What is packing the court out? What would

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<v Speaker 1>it look like in you know, what's the likelihood of it? Sure, okay.

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<v Speaker 1>Packing The court is adding justices. We have nine justices.

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<v Speaker 1>The court has been that size for about a hundred

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<v Speaker 1>and fifty years. That's not written in the Constitution. The

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<v Speaker 1>Constitution doesn't say anything about it. Originally the court was

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<v Speaker 1>six members. It's been as large as ten, but since

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<v Speaker 1>about the Civil War we've been at nine. That could

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<v Speaker 1>be changed any time by ordinary legislation. Congress could create

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<v Speaker 1>Supreme Court seats the way that it you know, it

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<v Speaker 1>could print money. We don't do that for a good reason,

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<v Speaker 1>because the stability of the court is an important thing.

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<v Speaker 1>And once you'd make that move, once a Congress and

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<v Speaker 1>a fit of partisan peak add seats to the court,

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<v Speaker 1>we all know what happens the next time the tables

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<v Speaker 1>are turned to the other side add seats in. Pretty

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<v Speaker 1>soon we have a court of fifteen seventeen members. It

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<v Speaker 1>looks less like a court of law and more like

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<v Speaker 1>a miniature Senate. We call it court packing because that's

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<v Speaker 1>what it was called when President Franklin delan Or Roosevelt

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<v Speaker 1>tried to do it or threatened to do it in

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<v Speaker 1>the nineteen thirties, and its own fit of peak over

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<v Speaker 1>the Supreme Court striking down a couple of New Deal statutes.

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<v Speaker 1>Back then, the the the proposal was so radioactive, uh,

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<v Speaker 1>that everybody in the political process immediately rose up and said, no,

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<v Speaker 1>this must not be done. It's been to call the

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<v Speaker 1>third rail since then would be an understatement. It's worse

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<v Speaker 1>than a third rail. And the fact that Democrats about

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<v Speaker 1>two years ago started talking about it, I think, really

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<v Speaker 1>showed how far beyond the beyond they've gone. And I

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<v Speaker 1>think that it would be if they were to push

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<v Speaker 1>that button, after say, taking over the White House and

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<v Speaker 1>the Senate, it would utterly destroy the Supreme Court as

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<v Speaker 1>a credible institution. I think that it needs to be avoided. Yes,

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<v Speaker 1>I mean, I feel like we do that weird speaking

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<v Speaker 1>of rails, were really off the rails at that point. Um,

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<v Speaker 1>how difficult is it to do? Is it just a

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<v Speaker 1>majority vote in the House and Senate and the President

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<v Speaker 1>signs it or what is it? That's it? That's it.

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<v Speaker 1>The Supreme Court. Congress can just pass a law like

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<v Speaker 1>any other loss and just amend the statute. I don't

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<v Speaker 1>have the statute in front of me that says how

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<v Speaker 1>many seats the Court as but you just strike out

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<v Speaker 1>nine and right in and and that's it, and and

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<v Speaker 1>in fact they don't if they get rid of the filibuster,

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<v Speaker 1>then it's just a bare majority of the House and

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<v Speaker 1>the Senate at a moment in time adds seats. Yeah,

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<v Speaker 1>how concerned are you that we are entering an era

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<v Speaker 1>where that sort of thing is being um not only contemplated,

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<v Speaker 1>but done. And to hell with the Union, to hell

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<v Speaker 1>with the country. I'm profoundly worried about it. I think

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<v Speaker 1>that the greatest constitutional crisis of our time is just

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<v Speaker 1>one of utter, the utter lack of self restraint by

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<v Speaker 1>our political actors and by so much of the public

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<v Speaker 1>that really rallies them to go to abusive extent just

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<v Speaker 1>in support of whatever policy they favor at the moment.

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<v Speaker 1>I think it's profoundly dangerous. You know. You know what

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<v Speaker 1>bothers me about it is that Democrats have done a

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<v Speaker 1>great job. I think, you know, the media helps that along,

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<v Speaker 1>but the Democrats done a great job of making it

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<v Speaker 1>seem like you do this crazy thing, and we're gonna

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<v Speaker 1>do this crazy thing. Well, the crazy thing the Republicans

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<v Speaker 1>are talking about doing is one constitutional I mean, it's

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<v Speaker 1>not out of bounds at all. Yeah, it's it's not

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<v Speaker 1>all they're trying to do is fill the seat. Now

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<v Speaker 1>here's here's the butt. Okay, here's the butt. The butt

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<v Speaker 1>is as much of in favor of the Garland in

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<v Speaker 1>action that I was. I was totally on board with

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<v Speaker 1>them not voting on Garland. I think the way, the

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<v Speaker 1>extent to which they really emphasized this new rule about

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<v Speaker 1>not voting on Supreme Court confirmations during an election year,

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<v Speaker 1>I really wished at the time they hadn't said that.

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<v Speaker 1>I really wish now they hadn't said it, because while

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<v Speaker 1>they are totally in the right to do what they

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<v Speaker 1>are doing, there is there is this this this debate

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<v Speaker 1>surrounding the honesty or dishonesty of Republican senators that I

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<v Speaker 1>think looks terrible, and I really worry that it's gonna

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<v Speaker 1>undermine not just their own credibility politicians. They can give

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<v Speaker 1>away their credibility whatever they want. I'm really worried that

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<v Speaker 1>that the stench of that is the stick to the

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<v Speaker 1>whatever great judge gets nominated, and it will follow them

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<v Speaker 1>to the court. And I think while politics is brutal

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<v Speaker 1>and it always has been, I think one of the

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<v Speaker 1>things we need to keep in mind, is that politics

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<v Speaker 1>surrounding the Supreme Court needs to have an extra measure

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<v Speaker 1>of self restraint for the good of the court, because

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<v Speaker 1>we need it for the good of the rule of law.

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<v Speaker 1>Adam White is with the American Enterprise Institute and George

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<v Speaker 1>Mason University. What do you think of the principle of

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<v Speaker 1>choosing court new justices according to the dying wishes of

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<v Speaker 1>the previous justice. Yeah, you know, I'm not going to

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<v Speaker 1>speak ill of the dead, No, certainly not, but speaking

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<v Speaker 1>dying wishes as serious, I'll say Justice Ginsburgh from time

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<v Speaker 1>to time ran into trouble for getting too engaged in

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<v Speaker 1>the political process, particularly with respect to President Trump. I

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<v Speaker 1>really regret that she her her last statement was one

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<v Speaker 1>calling for a quote new president to name the next

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<v Speaker 1>Supreme Court justice. I just think that's that's really not

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<v Speaker 1>a statesman like word message from a Supreme Court justice,

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<v Speaker 1>and and it's not her call. Right, Let's move on

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<v Speaker 1>to some of the women being discussed for the opening

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<v Speaker 1>um Amy Coney, Barrett obviously Barbara le go On. I

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<v Speaker 1>don't know to what extent the rumor mill is accurate,

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<v Speaker 1>but any thoughts on those two women in particular, so

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<v Speaker 1>I really don't know anything about Barbara logo. She's she's

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<v Speaker 1>not been sort of on the radar of the areas

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<v Speaker 1>of law that I tend to focus on. Um Amy Coney.

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<v Speaker 1>Barrett obviously was thrust into the spotlight when Diane Feinstein

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<v Speaker 1>at the last confirmation hearing for when when Barrett was

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<v Speaker 1>going on the Lower Court, you know, Finstein said that

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<v Speaker 1>she had too much dogma, that Barrett had too much dogma.

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<v Speaker 1>Really to call it finley veiled is to give it

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<v Speaker 1>too much credit. Just a blunt attack on on her,

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<v Speaker 1>on Judge Barrett's Catholic faith that was horribly offensive. And

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<v Speaker 1>I think that the extent to which Judge Barrett really

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<v Speaker 1>rose above that situation and and and and prevailed is

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<v Speaker 1>to her great credit. Her scholarship on how to read

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<v Speaker 1>statutes and how to balance the reading of statutes against

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<v Speaker 1>the reading of precedents is I think among the most

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<v Speaker 1>fundamentally important issues of the next twenty five years in

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<v Speaker 1>the Supreme Court. And so I think Judge Barrett, for

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<v Speaker 1>a variety of reasons, is probably the ideal candidate for

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<v Speaker 1>this moment in time. Some of the names that have

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<v Speaker 1>floated around Judge Britt Grant of the one of the

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<v Speaker 1>lower federal courts down in Georgia. I've known her since

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<v Speaker 1>she was in the Attorney General's office down there. She's

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<v Speaker 1>a really great lawyer, extremely smart, smart and sharp. I'm

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<v Speaker 1>glad to see her name on the list as well.

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<v Speaker 1>So this is a You'll have to use some judgment

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<v Speaker 1>on this question, because I I don't know the answer

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<v Speaker 1>to this. The court with Ruth Bader Ginsburg on it.

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<v Speaker 1>If you're looking at a football field and the fifty

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<v Speaker 1>yard line is right in the middle between liberal or conservative,

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<v Speaker 1>where was the court with her on it? So which

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<v Speaker 1>how far do the writer left? Oh, that's hard to say.

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<v Speaker 1>I'm from a Big ten school and we don't do

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<v Speaker 1>football anymore. Um. I uh So this this replacing Judge

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<v Speaker 1>Ginsburg with say Barrett or somebody in a similar vein,

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<v Speaker 1>is going to move them If we were at the

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<v Speaker 1>fifty yard line before, we're moving over to about forty

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<v Speaker 1>five forty yard line in the conservative direction. There's an

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<v Speaker 1>opportunity to change some precedents that the liberal justices had

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<v Speaker 1>laid down in earlier years. But also this is really important.

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<v Speaker 1>We could avoid some bad precedents that might have been

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<v Speaker 1>made with just the changing of a couple of seats

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<v Speaker 1>in a liberal direction, especially in areas of religious liberty,

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<v Speaker 1>where Justice Ginsberd really was at the forefront of trying

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<v Speaker 1>to trim back the Religious Freedom Restoration Act and pull

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<v Speaker 1>back some of the protections that religious believers have in

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<v Speaker 1>the face of progressive administrative state regulations. UM. I think

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<v Speaker 1>that was going to be a crucial area for for

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<v Speaker 1>Judge Barrett or any other appointee to the Court to

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<v Speaker 1>really avoid aid a dangerous turn. I know it's not

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<v Speaker 1>in the Constitution that you need to have sixty votes

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<v Speaker 1>to become a Supreme Court justice. Did you like it

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<v Speaker 1>better when the threshold was higher than just a majority

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<v Speaker 1>or do you think of majority is fine? I wouldn't

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<v Speaker 1>say I liked I definitely didn't like it better at

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<v Speaker 1>the time, UM, because it was blocking some good judges

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<v Speaker 1>in the George W. Bush administration. It's hard for me

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<v Speaker 1>to put myself back in that mindset. I think that

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<v Speaker 1>the voting threshold is really less important than the process

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<v Speaker 1>in general. I think I think ultimately the Synate is

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<v Speaker 1>to decide how the Senate does business in terms of

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<v Speaker 1>the votes. I think the more of the Senate can

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<v Speaker 1>do to create a credible process that really does I

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<v Speaker 1>mean bad pun but does justice to the gravity of

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<v Speaker 1>this particular issue, the appointment of Spreme Court justices. That's

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<v Speaker 1>a good things of gang rape and that sort of thing. Well, right,

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<v Speaker 1>that's the problem is you don't want to belabor the

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<v Speaker 1>process just for the sake of character assassination. That was disgusting. Uh,

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<v Speaker 1>and it's it's something that Republican senators have never never done. Um.

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<v Speaker 1>But I would say trying to trying to to raise

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<v Speaker 1>a confirmation through before election day, like you're the Dukes

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<v Speaker 1>has are trying to to outrun Roscoe Peeke Coltrane, that's

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<v Speaker 1>just a bad It just doesn't do justice to the

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<v Speaker 1>gravity situation. I've I mean, I've written on this for

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<v Speaker 1>the Bulwark and a piece that I know is pretty

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<v Speaker 1>out of step with with my conservative friends. I think

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<v Speaker 1>that they should do justice to the process, even if

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<v Speaker 1>it means voting after election day, even if President Trump loses.

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<v Speaker 1>I think that the process, especially for this seat, I

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<v Speaker 1>think the American people deserve to get to know this

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<v Speaker 1>nominee the right way and not in a hurried or

0:12:35.960 --> 0:12:38.839
<v Speaker 1>or or other otherwise problematic way. By the way, your

0:12:38.920 --> 0:12:43.559
<v Speaker 1>writings on Duke and Duke versus Coltrane. Incredibly insightful. Adam

0:12:43.559 --> 0:12:47.480
<v Speaker 1>White with the American Enterprise Institute. Alright, final question, we

0:12:47.559 --> 0:12:51.600
<v Speaker 1>gotta go there. I guess it's obligatory, um Roe v. Wade.

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<v Speaker 1>It's just an exhausting discussion. To me, What are the

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<v Speaker 1>chances a conservative court would actually overturn it in the

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<v Speaker 1>next in years. It's hard to imagine, I'd say in

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<v Speaker 1>the next twenty five years. Not hard to imagine. It's

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<v Speaker 1>a It will take a process of case by case

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<v Speaker 1>narrowing the precedent and really getting down to the core

0:13:10.760 --> 0:13:14.800
<v Speaker 1>abortion right and then making the big decision. But along

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<v Speaker 1>the way it's going to require a cultural change and

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<v Speaker 1>cultural outreach. It's the most one of the most important

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<v Speaker 1>issues of our time. There's a great line from a

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<v Speaker 1>liberal law professor. The problem with Roe v. Wade, it's

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<v Speaker 1>not that it's bad constitutional law. It's that it doesn't

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<v Speaker 1>even pretend to be constitutional law. It's had the worst

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<v Speaker 1>gravitational pull on everything around our court in our politics

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<v Speaker 1>for more than forty years, and I think the moment

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<v Speaker 1>that it's overturned will be a good moment. Adam White,

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<v Speaker 1>Residents scholar of the American Enterprise Institute end with the end,

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<v Speaker 1>and in Scholey Law School at George Mason University, Adam,

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<v Speaker 1>it is always a pleasure. Thanks a million for the

0:13:46.200 --> 0:13:47.520
<v Speaker 1>time you too, Well done.