« Commentary Magazine Podcast

The Breyer Patch

2022-01-27 | 🔗
Legal scholar Adam White joins the podcast today to talk about Stephen Breyer's retirement, his legacy, his accomplishments (or lack thereof) on the court, the fact he gets no respect from liberals, and fun facts about previous confirmation battles. Give a listen.
This is an unofficial transcript meant for reference. Accuracy is not guaranteed.
Welcome to the Commentary magazine daily Progress today is Thursday January twenty seven, twenty twenty two, I'm John but words the editor of Commentary magazine with me as always: executive emigrants, a revolver I I jump senior rather Christine rose high, Christine Tiger oh see an editor nor Rossman, high Noah Asia and joining us today, legal scholar, a I person, fellow assistant, professor of law, and the director of the sea, Boyden Gray, set over the study of the administrative state at the engineer, Scully LAW School, a George made.
Universal. That's many! That's the sea, Boyden Gray, Antonyms Scalia, George Basin, His name is Adam White Adam. Thank you for being here representing see, Boyden Grey. Accidents, Galicia and George Mason, not to mention hey. I I job oh and he's been. He was at the Hoover institution. He was at the Manhattan Institute, soon There will not be a single institution in America which he is not a fellow, so as somebody who has created, who is the sort of put platonic ideal of being a fellow? Let me just ask you, given your expertise on legal matters and your close study of the Supreme Court, Stephen Briar retired yesterday or announced his retirement yesterday by somebody kicking him in the
as downstairs before he was ready to make the announcement himself. What are you what's Europe? What you're like one sentence, take a look at it this way prize by the court twenty eight years. I'm a lay person in this regard, but them as he written a single opinion that will endure like a hundred years now, people say well that was the briar. You knows, as the Briar opinion in Pasqua, Oxy, verses, Idaho. You know that was reached. That really spelled out the really important in view of the seventh amendment or is there? Is there such Now there s an end, I had to say he had maple tonic ideal writers, record on the cord is pretty mixing you're saying this in the the
the obituaries to his judicial career, which are proceeding as actual announcement, was a departure every calling him a pragmatic which is a long way of saying he says a lot, for deciding in a pretty reliably direction, but its opinions and his most consequential penny I'd be the one where you over the court, striking down a states partial where abortion law or one striking down a ten km statue, but even those opinions were so muddled and caviar added frankly, briars biggest legacy professionally. Parliament can be as as a justice on the cord. It's what you wrote on regular. as a lawyer and alarm professor before that he wrote books on everything from regulation to fork federal wriggled energy Network mission, all things There made some lasting contributions or probably stand the test of time, not so much on the core and I beg you to say one more thing: the departure of the departure of his where he
Maybe get to announce his own departure is just the perfect capstone on his career. You looked back at his torn out when he was actually nominated and ninety four Bill Clinton didn't wake, for him to come to Washington. Before announcing his appointment. You announced that while Briar restored north, they have a whole second ceremony when Brian it down. I think the next day Clinton went job use, multiple jogging without with Brian they couldn't find briar in the White House, and I just ran off without prior and those an entire Washington Post story about this briars and Our career is basically a story of of his own political party Democrats, just having no patience for him sort of abandoning him at a moment's notice. You know about after you just remind me of the fact that clip made such a hash of his of his Supreme Court nominee I mean, if anybody remember so, you know who is: firstly, a ruse better Ginsburg was nominated to the court.
you know where he said. Oh here, she isn't. She is the first. This is the first that then she came up and said: oh I'm so, where there and then it was time for questions and bread Hume who, then it may be seen new said. Mr President, some people are feeling that you're out of touch or something like that and Clinton said. I dont know how you can ask such a question after having heard what this woman just said and stormed off, and that was the end of the Wondrous announcement of Ruth Better Ginsburg essential to the Supreme Court here. Yet I had a knack of verse. Growing things up trump, of course, did the come, come at nine nine p m on Thursday. come on out Johnny from the price rises who the the next Supreme Court is is like that, and now we have the though we have briar sort of like when the past
as a Dutchman Bream, a fox you know, every with my oh, my God, browser tides, Mahmoud in Germany, was like multiple sources are too bring me that Stephen Briar is not happy that this news got out this way, I mean, if so, disrespectful. I don't know. It's amazing, Clinton, even Sweetbriars nomination that ever Briar got skip the Ginsburg seed and that's where the whole Cuomo drama happened to for the receipt the briar ended up. Getting there was a protracted sort of public debate or whether it should be Bruce Babbitt or Richard Arnold, from Arkansas to Clinton adored. Nobody was that, aside with the Briar nomination, Clinton clearly was not thrilled. With the Democrats in the Senate met the nomination with widespread discipline, I personally I'd like Briar the sort of a charm to him and I feel, sort of sad little always he's been mistreated. He was the junior justice for over a decade and had answered the other justices messages in the conference room
sweet man, any sort of it a charm in his arms and approaches, were away, but I can't think of another just who was moored disliked by his own party, then maybe David Sue s letter. Famously David suitor, now, chief Justice Roberts, but there's been just as low key passiveaggressive dislike of even briar from him before he was put on the court and so again does the way being just shoved out. This is just a perfect capstone for his career. You know my friend David from one on twitter yesterday having himself a bin. I guess at Harvard LAW, where Briar taught and said he was really funny, and then he like put up three or four things of brier said and, as I told him in a private message them that they they weren't they weren't funny. It was like art buck
funny or, like you know, dad joke funny. I don't know it was like, so he really wasn't funny. He wasn't that impressive. He spent twenty. He was at. He had to answer other justices messages. The left doesn't like him. He can't even retire on his own, never wrote it and never wrote an interesting opinion. I mean that's a long times and not writing interesting opinion. I mean I'm sure there are other, certainly in the course of the nineteen seventeen till the till the service engine of the modern court, where we really were you know, every year saw massive constitutional arguments really from the in early 50s, late, 40s, early 50s onward, some of the nineteenth century there, a lot of stumblebums and packs and stuff on the Supreme Court has been nothing but it's a loo rare to have somebody this intellectual Lee Marginal I'm in item exactly marginal, but yet in others
trusting trend for the last few decades, the senior most liberal, becomes a real lie in the court. Even people that work shrinking violets to begin with a black man becomes the singer most liberal and declares that is on a crusade against the death penalty, Stevens comes at the leading liberal during early Bush years and, of course, Ginsburg Briar when he went Ginsburg passed away. I thought all this be interesting to see how Briar for seizes the moment as the senior liberal in the court and that he just didn't. He got asked over basically with with just a sort of my or skipping ahead of him to become the sort of liberal lion of the Senate, and so he, maybe even in that role worries teed up to be vocal. He just just Briar does way through it. I can. I can I just say one thing: about because we are constantly scolded by these supposed party of governance. The Democrats,
at norms, nor invoking baby decay of norms. The way that his exit was dealt with in the last thirty six hours is kind of shameful in terms of norms. This guy had to handle that many decades of service on the board and, whatever you think of his record, he deserved to announces retirement when he was ready to announce it and the idea that which seems more more plausible than it was leaked. I haven't you know: he'd decided that he would likely as most justices you announce retirement, do it in the spring, because the Germans in the summer you so he could complete his job without the b, instructions and has a love of the nominee. In the background, the fact that he wasn't allowed to do that that the clear pressure the Democrats feel and deep. Political motivation of that league is sorted distressing to me in the same way that I think it's been distressing over the last twenty thirty years to see how politicized the whole nomination and confirmation process has become in both. Both sides have participated that obviously, but this is kind of new
This is new altogether retirees were able to announce on their own timeline for their own reasons, and I feel like this is. This is a small thing, but it that its notable it is. It is, and, of course it doesnt out, but this is something that will only be remembered by me now, buyer by by fanboys and people who remember what happened when Quinn nominated Ginsburg and bring you met. The question like this is this: is it our stuff for a massive trivia like how did seamen briar retire? He got you know there was a leak about it than that that seemed,
Klein seem present to serve attempt to change the subject from the unbelievable constant spade a bad news. Abiden got and there is now. Finally, Joe Biden gets another good piece of good news. It's not just the briar retirement which allows them to nominate someone and get a whole new says avenue stories. There is a block bustard gdp number. Fourth quarter: GDP at almost seven percent, six point: nine percent, which I think they were expecting somewhere in the five, which already would have been like an amazing number, but seven percent as them is pretty staggering and the answer will be its not that surprising, when you think about everything that was going on before near before sort of Alma Kron scared, everybody I mean there was just explosive job growth. It was a wage growth and, of course, to all that money that had flown in other than that had been poured down. The national gullet, by
I Washington, you know, habits, intend to the fact that you know it's a b, a b, a sugar high, it's not going to last, but it you know it's. It's still pretty impressive in this is going to be a real test of whether by he can do something to shake the national mood out of its torpor and belief that everything is terrible and going wrong. This is a communications issue for him now, because he has a just incredibly solid piece of news that he can. He can reset everything, but you know he can certainly do something with it. I don't think it's a communications issue at all. Gdp growth is completely abstract. It's an academic concept for average voters. What tangible, what they feel is the reduced purchasing power that
as a result, inflationary pressures in the economy- that's very real. That's a policy problem is not a communications issue. He can talk up the GDP all they want, but that's not gonna matter to Americans who are feeling it in their pockets. I think it matters in this sense. I think it matters because it gives some ballast to the idea that we have been saying that he needs to say we have come through a dark tunnel and we are heading towards a positive future, a message that he keeps stepping on himself by saying the next election may not be
the gentleman and you know and then look at what's going on with all these evil Republicans and day keep wearing your mask everything like in that sense, you're right that people have their own personal experience of the economy and its it's important. To note that, and that you know, inflation is a serious problem but tied to a message of optimism and forward looking hope based on solid data, its. It is a communications matter, because it is something
it can't be like left to float out on its own. Look, our gdp number, so great GDP Gdp Unknown, even those you know, I'm sure fifty percent of the public or sixty or seventy percent couldn't define the term GDP. It's funny cause. When I was a kid it was GNP. I don't know when it when it turned to GDP, that's like when they change Peking to Beijing. I you know, I never understood that happened exactly suddenly. It's like you know, you know. Now we are all for my entire lifetime. Kiev was pronounced. Kiev amounts pronounce Keith, so that happens, but GDP were becoming lemme. Gnp was an interest moment, I'm sorry I'm being very dilatory here, but I do think that there is something to the notion that this is one of those moments that you could use to do some kind of an emotional we sat say we are come. We have come through a dark tunnel We have the highest growth number that we ve seen in time
IE seven years. I think I'm probably since Clinton in the first quarter of ninety mandate. This is also much part. I'm sorry, I'm interrupting you, but I see this is far too much more risky as to view this is solely a communications problem, because the corollary to that is that Americans are just too damn stupid to know how great everything is right now That is the bit the logical basis and that with underlie an approach that says, ok what Americans, who are sour on the economy, just don't understand that the economy is great and lay just need to be talked into an expert. into an empty, don't understand, you need to grab them by lapels and yell at them
You see what I'm saying, I'm I'm not saying. I see the restoration and building on the raft that these people just can't be led the water. No, I understand, but I'm not saying that he should make the message about the economy. I'm saying he should say almost promise burning through alma crime is burning through take your maths off I mean I'm saying you couldn't just use that and do nothing else, but as a as an as up as a possibility for them. down in open in in the Roosevelt Room and closed the door and say what are we gonna? Do here were on the downward slide, I'm at thirty five percent in Georgia, which I one in twenty twenty, my approval. Raining is thirty five percent Georgia. We have good news, we have news on the on the on the virus were not peddling it. We have good news. economy. All we do is wine about voting. Let's say something to the american people that might connect to them about how
The future is gonna be better than the most recent past. I think it's, it's extremely good news for him and indian and could be used quite effectively particularly be caused. Its stance in such stark contrast to all the other news, so it sticks out and it wouldn't be thought of as purely abstract by the way were bad right. If were bad everyone be taking, it is all make a here's another sign of of of the myth of the misery she gets worse, so I think it can be capitalized on to some extent it can be. I think there is every reason to be incredibly skeptical the they will or that they will know how to do it or that they won't do it. The way that no, it says they'll, do it and make it worse by saying you're bunch of idiots
Oh don't you know how wonderful everything I've done for you is, which is exactly right. If we talk about it before, there's no vocabulary for optimism, because the progressive basis not optimistic right, there may easily heroin. about the future, and there is a parallel here too. How what they're doing this, opportunity with the nominee right now to the Supreme Court, which is they literally don't understand that thing, and now we can now we can nominated black woman to the court's rings differently. Sorry, that's my the background? I apologize. It basically reminds a lot of moderate and republican voters, the identity, politics that so entrench the Democratic Party right now. So this This is a big opportunity, but their squandering it already with the way they have chosen to approach the nominee which, by the way, I just have to say, I'm. There are so many qualified african american female jurists who would be great to put on the court at everything about how their approaching this underlines that those qualifications in their ability and addressed me absolutely bat. So there I've got that office, I mean
I am I mean I think it was interesting to Adam is that Biden has no choice. This was a campaign, but behind the in the smoke filled room agreement with Jim Clyburn, when Biden was on yet look seemingly sort of on the ropes during the primaries, and he wanted this very you know Hartefeld endorsement from Clybourn and South Carolina, then Clyburn said promise that you'll make up at african american woman your first Supreme Court invite and sat down and he did it, and so that's where he is. Can we talk about the unbelievable irony that he is basically said very specifically that he is making it token choice to the Supreme Court, and I think that it is more likely than not that's.
time in July June July and August we're gonna hear from the Supreme Court that affirmative action is no longer. What way. Isn't that the Harvard case aware that that that affirmative action will be deemed unconstitutional Spring Court. Have, I expect us to bring portal, will say that affirmative action is for the states go on constitutional for the private school. You know contrary civil rights act. And the other Israel irony that bag hastily I well know that This is gonna, be argued and father, so that it is our sorry well so that new justice will may or may not be on the court by them, but yeah. But yet you know her party last night was asking about the pledge and and I think the mercy of the court is a good thing and, like Christine said, there's plenty of qualified judges of every you know: race, ethnicity, in America. Does that's not a problem pre committing
So strangely you identify John, but also, as I said, to the reporter when president, when Kennedy Bide announces that the next candidate will definitely be a black woman. Also announcing the next candidate, will definitely not be an asian woman or nation man and it just so strange how how a lot of people don't hear that message, because they're so focused an on wanting the black woman on the core. They don't realize how how ailing it uses to other Americans will see out how plays out, but yet the irony that it came out just as the court announced the affirmative action cases is pretty palpable. You know I did back into. You know a trip. a trivial history yet again, but we, of course, do have the
so show you how not everything is equal in the eyes of of the elites. We of course have the counter example from the ninety nineties of Miguel Estrada appointed who circuit court yeah, he's gonna Dc Circuit and by the Dc Circuit Miguel, Estrada, brilliant young republican lawyer, appointed and denied fell by effectively fell stood for a year until he withdrew his nomination on the almost exe
listen grounds, and I can remember who said this, but on the explicit grounds that if he got on the circuit, he would end up on the Supreme Court. That would mean that Republicans would be able to nominate the first latino to the Supreme Court. He had to be denied his run up. You know his sort of what you call on deck circle, appointment to the D c circuit end, otherwise he would be Clarence Thomas to point out cause. That's how Thomas ended up on the port righty went to the disease are good for what a year less than a year, some before he was nominated to the highest court, an end they they filibustered. They wouldn't allow a vote on Unmake Ella, Strada tragedy than ensued.
wife committed suicide. I mean, I don't think you can blame her suicide on I'm sure it wasn't helps whatever, but but in here we are like thirty years later and it's perfectly okay, that the people who are being bad, whose name being bandied about our being bandied about solely and exclusively because they check off two boxes. That Biden promised he would check off minutes. It's condescending. It's it's! It's cringe inducing and it is a very bad sign about. You know where the LE, where the liberal elite is that they have basically now descended into absolute open, unapologetic, an undeniable tokenism as their strategy or balkanization or whatever you want to call it an exit strategy.
It's a it's an honest view, their acting in good faith. They believe it's a moral imperative of their constantly shocked, to discover that conservatives don't appreciate or like racial quotas, and I think that their being dishonest, when they fain some part of and shock over over Republicans finding that distasteful, but they it's not a strategy in there. In that sense, there they are I believe this is historically right. It's red wreck, fires, historical injustices, that they believe it. Sir, it's repetitive, it's only learned their efficacy. To add to that is also why distressingly popular view among younger Americans new pulling data out of and one of the questions that was ass. This is the sort of free speech pulling. They said many younger Americans said they were willing to have to censor their own speech or not say certain things at a puzzle,
even you don't lose jobs as a that was worth it if it protected historically marginalized groups and the idea that you know it so it not just that it's it's! It's part there right now among the liberal elite, it's actually becoming a popular view among younger Americans that it's ok to sacrifice some of the things that I think even modern liberals have taken for granted like free speech and and being able to say, controversial things. If it protects minority groups and historically marginalized groups, it doesn't even apply to people who today might be quite successful but have a certain skin color than that links them to a historically oppressed. Pass. That's disturbing to meet you, but this is actually an expression of that, and it is quite is quite popular among a growing group of younger Americans. Adam last time, I believe was the last time that the Supreme Court took a major reform of action. Case m decide
that it literally featured a kind of theoretical end date for affirmative action right, yeah yeah. This was out, you doesn't three just o Connor and went to the court said you know what that were not used. Time to end affirmative action. Yet surely, twenty years from now, you know will be at that point, which the way twenty years from now is next year, which is when this these are primitive, actually came out of a total, be thy it'll, be nineteen years, and you know therefore, obviously within reach. You know that if you're really gonna be tumbling about it, we did we should case women brought next year, so that would be twenty years according to the, pessimists does it remains we got there sooner. This is wonderful when nobody need it the point and bring up. The reason I bring it up is that
The idea was that a firm it of action was a was a potential remedy for past discrimination and that it therefore there was a reason to privilege into in whatever limited way you could, without totally stepping on the rights of others, a privilege african Americans, because of the legacy of slavery, but that you know and that, because we only really got started on that in nineteen. Fifty four, not in eighteen, sixty three, you know couple of generations and trying to see how things worked. You know in the larger spread of higher education. All that was was very important.
but it was always understood that it was not to be a permanent feature, at least in this context, that could not be a permanent feature of american life because it was a remedy and it was not. It was not to become enshrined as a kind of right that you as a as as a person with black skim, would get some kind of a vague since you couldn't do it couldn't enumerated. You can do this in good it then it could be used as a positive. Actor for you that it was not for people who did not have your skin color and that that remedy was limited and was time limited simply by dint of the fact that we would be eighty is after after Brown, after Brown, we board at after due school desegregation after all of the civil rights and the Civil Rights ACT in the Voting Rights ACT and all that it gets back to the point a moment ago about the account,
I mean I dishes the this tendency on the left, who never be able to declare victory right, never said a crisis asked so just as the economic problems are forever and am against is forever the problems. from an actual created to solve we'll, never, please be solved because that would then put an end to the crisis so What was the book from years when I blame ugly, never enough writer honour on progressive, four programmes it's it's like that with affirmative action, just as it is with with the economy, what's worse, and Christine it's worse right of that's the build up of the logic of the sixteen nineteen project is if this is american original sin from which we have not emerge there there there can never be an end, because the because the M handicap is is is rooted
the very you know, did dna of american history and therefore you correct for it forever It also overlooks periods in the Americas more recent past, where minority groups have actually excelled. So you know, for example, on on the: u I'm obviously focus on these data on schooling. When you look at this sort of competitive, high schools and tested the kids had to take it into those it. Twenty years ago there were more kids, you were getting into those schools from minority groups and now that's drop than there are lots of explanations that the main one being that you know that private schools are actively recruiting some, those kids that used to go to these emit admission only public icicles. So there's lots of reason for it, but to argue that it spend this. Just steady, constant oppression and inability of minority groups to achieve is just wrong. It's run. The same thing is true: with crime rates with wood. If you look at all the things
constantly cited by folks who want that consistent, oppressive oppression narrative to be true where, even though its not they overlook all those moments of success. In this, Small business success among minority groups have been all that. There are plenty of really good, optimistic stories to Tell- and I will say it's the fault of conservatives the Republican Party general that they don't tell those stories often enough either, because there is a real opportunity now practically among hispanic, an asian Americans who are looking for a political home in their not seeing it entirely in the Democratic Party anymore. There is opportunity there
I'm on the right. They don't always sees it. So I just think that there's a severe the narrative of oppression, unfortunately, is, like I said, very popular among the young and it's something that needs constant combating because it won't, and it will see it more and more often in China, policy and loss. It isn't so Adam. Let's, let's move on to the question of who will replace briar, and let me just put it this way. Doesn't matter doesn't matter we're getting a trade will liberal for a liberal court is basically five hundred and thirty one. If you think RON Roberts is kind of now less of a pinot conservative or whatever, so it's sixty three or its fifty two it'll be
Three after after Biden gets his nominee assuming he gets his nominee. Doesn't matter I mean it could be, could be, could be Jackson, they could be. Krugerrand could be somebody we could be Cheryl and I feel it could be. Whoever doesn't that doesn't individual justice matter in this kind of atmosphere. I think so. An individual justice has opened a platform to really rally both a legal community and the the political community. We saw this with with Justice Ginsburg. We see it sort of my are, and so sure of president by the point. Somebody who turns out to be much much more outspoken on the bench off the bench eyes able to phrase her point sinner her things
much more succinctly than Briar sort of me and ring caviar, ridden opinions and all your questions? I think it can have a galvanizing effect in some way, there's not going to change the balance of the court, obviously, and in the short term minutes It's a trader, one democratic appointed justice for another, so you don't get the sort of the car being of a seat away from conservatives. But I think that person could have a real impact on the political dynamic round the court and then got out of the next Domini, isn't a core and actually endorse as core packing right arm. In a way the briar a sort of my or didn't network that would have an effective so that the individual not there seems to be a kind of interesting. I would call it term Wonka verses. Non, want fight already, starting to break out. Little bet that the young that the kind of Want Washington, you might call the service
drinking wine in a plastic cop at the Brookings institution. Crowd has already decided that what who they lie, is the Harvard Yale Deputy Solicitor, Jim role, as I can remember her by her first name of a crook, Who is the outer greater lily under Krueger? Who is who is a justice on the California States Supreme Court? has one of those you know: glittering Reza maize, three clerk ships we know their blah blah blah. You know just oh just amazing and what'd. You I'm sure, did everybody's friend ever
but he went to law school with her and she wanted to retreats with them and all that in, and that does not appear to be the case in the same way with them with the other bleeding candidate who was on the DC circuit, whose name is attending a tax on financial transactions? you weren't Jackson, so I am. I am. I perceiving this correctly that that that that you now Brookings wants the weed out. Brookings wants the black female version of the person whom liberally it's always as the person that the daily were an alien house with that that sounds about write to me. I think it's interesting the stories that have come out but that we also Krueger turned down You know a job, a solicitor general said she wanted to stay on the Supreme Court and sort of barking up her credit body is being almost too good for business in a position to say no to being solicitor general.
Couldn't you Brown Jackson, it's been interest she's, been framed as the safe choice ride. She was confirmed for this DC circuit seat. I beg the bone from having the city fat. Fifty three to forty four Republicans voted. First, she was on the district court for you her. She was on the sentencing commission. For years she was a briar clerk. It's almost like picking Cavanaugh again right. The sort of the well credential old Dc Circuit judge, who court for the one who's whose giving. So that's that's a possibility, the other one by the waves in the mix in addition to Show- and I had abandoned, lay CP legal defence fund, its Shell Childs, whose Kleiber protege it was a district judge. Ah down a federal judge ass. I found it for a long time she was just appointed on Christmas Eve Eve for that. These are nominated for the Dc Circuit so that its pending their it'll be interesting to see what kind of a hearing she gets because she's Kleiber earns person, but nine by the bed. I bet it.
To its capacity, Brown Jackson, but you're right. It's interesting that she's already been treated as a sort of the settling choice, because she's conformable, Adam Krueger, has sided with conservatives on occasion as you not Yeah, I'm not sure anybody who says they know her record inside and out is totally lying at this going to, because that ninety nine percent of Amerika of even lawyers. Don't know anything about her until yesterday afternoon, yet well, listen I certainly don't know everything. It is certainly no record inside and out, but I have read that she has sided with conservatism under on big decisions before which would lead me to believe that, given the climate were talking about, that's an absolute non starter I see that as the interesting question here is when you go with it with a specifically racial engendered choice, how much.
Can you criticise the choice if you are on on the progressive left. I mean you ve, already kind of law, did, your options does have already said that the most important thing that matters is, you know what a what chromosomes you have and what color your skin is. I think if there's a hint of of conservatism anywhere you can criticise endlessly I'm sick if that's his days better offence right. If Biden worded names but he who cited will end by the way, there's also grounds on which you could say yeah. Maybe I don't know who worry Berman work. You know or Ellie Miss Stall, orbed, some! You know some psychopathic lunatic, you know, and on and on the left you know, Mark Joseph Stern or someone could pluck this out and say Biden is but having somebody who has
of whom a conservative or two might have mildly nice things to say, and who can I go to the Senate meetings and charm people in some way? I'm an Elinor Kagan did that that was very, very central to Ellen occasions, acceptable. As a candidate that she was somebody who had been known to treat services on the Harvard LAW School faculty with respect, and that there was almost no organised opposition to her on the part of the right, because she had very consciously kept her powder dry and been you know and been sociable with everybody right and so Biden is in a worse position. Certainly, then, in our bhamo was in and out in when when he named was Abominate Kagan random, lumping stupid here
I mean you know, Obama had away more sensitive than Biden has, and so that's my that that would be my I question whether it really bad if he chose somebody who was more acceptable to their if he played a study by Parson in twenty twenty two. I know I know who would like it, but I mean Republicans already signalled that this isn't a done deal, that this is a very low stakes. Fight elections have consequences. Lindsey Gram in our project whereupon others that judiciary is not going to put up a struggle unless this is a really problem, economically and the two women were discussed. already on the bench our conformable, because they ve been confirmed. It's not gonna be a big. The big struggle, a big fight. Everybody can posturing and take the way take the easy lost, because it's not going to change the illogical make up of the court if progressives worth a bridge
amount of fight about this and there's no dear rewrite. I hadn't thought about this. That is entirely possible that they could frustrate your minds agenda yet again in pursuit of some on realisable, perfect outcome: it would. It would really throw a wrench in the works, because republicans are signaling that this is not a fight they want to have well, you'll have to be there two different kinds of republican, but a real financial. Sad sorry, you haven't, you have sent you a letter in which you have set a Republicans who will probably not put up much of a fight, but there is an entire republican fund, raising, probably no private public apparatus that you now wants to raise a hundred million. Always off this right at me. Yes, surely surely, and are members of the Senate Judiciary Committee who will use this as a state.
Each for possible presidential run in the future, but I want to keep in mind as Republicans weren't, even hard on sort of my or right or Ginsburg, or actually brought em in solemn, our Kagan, Ginsburg or Briar. The only really judicial sprinkler nominee. republicans have really created, was Harriet Myers they just haven't picked fights the same Democrats, Heaven has been interesting watching them the first eighteen hours narrative, spin out about what the Senate Vital we look like, will look like and worries that Republicans will pay. Hardball, they ve been pretty easy going on the Democratic Supreme Court nominations. and we could see all out war over this one, but I I dont see Senate Republicans putting up a huge bite on. This will make some noise, but at the end of the day, binds nominees surely can be confirmed and will probably get a couple of republican boats, including Susan Collins, and that was before that when the sixty vote threshold was in.
Its again without the lower threshold. Again, the stakes are far lower. Am I Miss Remit, bring or speaking of soda mire. Wasn't the main criticism of soda. My didn't had come from Jack Turban. Am I in the new Yorker am I am. I missed remembering it was before after her nomination that there was at that there was a really quite that quite the eye, opener jaw dropping piece and how she was intellectually unfit for the court I cannot propose before or after, but the other. The other attack on that wasn't would know right. Winger go after her for being stupid. That was that was you know that was zooms best friend yet will- and I think, if I remember correctly, there was the lead from Larry Tribe to President Obama lobby before Alina Kagan, and if undivided spell yours and I'm gonna, look at that letter, but remember correctly tribe,
and so to my or down in that letter to he also ran down Stephen Briar by way in that letter again, once again, Briar has no friends on the left. Nothing I tried Ben Ali. that is true time and time again. These attacks due primarily come from the left. I mean that were that that's funny Gazette that reminds me there. I beg complaining about Briar, reminds me of a moment on the on the right. Of course, this is where you get into interesting dynamics of these it out I little world where, when Bob Bob Work was up for the Supreme Court, my old professor, the university cargo Phil Carlin, who is who is a conservative, opposed his nomination and why sheer envy choking rageful envy like there was no. It made no sense. His opposition made no sense. It will serve like. Why is that? Guy
getting it and I'm not getting at what the hell is going on, and you have another somebody I will not name, but somebody up. Legal scholar on the right who, many years after school it was was on the court. But someone who had taught with him said now Nina. Wasn't it with third rate third rate and television second rate Emmi, who just he was just such a could really right you, nobody such a good politician, such a good politician to suck up everybody. I went and got the job this guy who, as you know, maybe the one of the two or three best writers ever to ever, to sit on the Supreme Court. again, choking rageful envy, and they can never underestimate the possibility that somebody who went to law school with one or the other people could just do whatever they are good to destroy the because it's like what you know why you heard not me
What about the way? I did look up that that tribe letter just now and the end better than I remember it. He says to this letter President Obama was again sort of my are lonely she's, not nearly ass, smart ass, she seems to think she is, and a reputation for being something of a bully could make her liberal impulses, backfire and simply add fire to add to the fire power of the Roberts. Alito Scalia Thomas Wing of the Court I'm sorry. That was a very interesting way of putting That's the only intelligent signatory drivers ever set. As far as I can tell you, there's the unequal there might have been the anything there too, and not just that arrive himself was passed over, but here you had tried lobbying for his colleague only from a colleague ANA Kagan to get the job.
This is part of what makes a supreme court fights so fine as they can be fought at the national level and also at the faculty meeting level. Sir, it's a good time so that, but in that sense, that's why I say does of course, banners and always matters who, who is you know and important? Unelected fictional hook serve until they die if they so choose. Of course of matters, but in terms of of the solemn on decisions that are gonna have to be made, and obviously least one of them, the the abortion the abortion ruling comes this year, so it the ito it will not play. A role here. But of course it it matters, but in in strict idiot, logical, compositional terms, unless Liberals suddenly has some reason to be the Kennedy, suitor type or me
maybe what Roberts is becoming now serve like to grow in office toward the right they seem. That does not seem to be an issue with them. Ever I mean when we had. The hope it hearing in other serve the ocean emergency willing stuff. Why Why was it totally axiomatic and turned out to be the case that the liberals or give a side with the ocean rules and the conservatives were not why I mean that does that is at an idiot, logical kid that is all about over the question of whether or not boundaries were being overstepped in terms of in terms of the use of regular You know a regulatory framework, and yet here they weren't like just lining up perfectly tuned, because that's what they're supposed to do
Yet this is another way that I think unintentionally really demeans members, the cord anytime. You have a major case: everybody, the press, every just takes for granted. The predominant democratic justice so, although in a certain direction- and the only interesting question is which are the conservatives will disagree with one another fear The girl before she died. Justice Ginsburg gave an interview where she she said We just amazing. She said you know with we. The progressive justices have learned that it's more effective too often speak in a single voice, not fracture amongst ourselves, but really offer a solid form the sand together as an amazing thing for adjusting to say, but she said, a pretty proudly the interesting. I don't expect any big shifts from left to right amongst and injustices. What will be interesting, I think, is the extent to which democratic appointed justices try to speak.
textual ism as a first language. I this is something that will really distinguishes Kagan. Some sort of my or she really does try to meet serve. It is at least rhetorically on their own ground and ends of argue up within the bounds Textual is not exclusively but significantly. Suitor. Did this a little bit but Kagan really is the first democratic appointed justice in the modern era to speak textual ISM as a first language and its forest of justices, to think a little bit harder. I thank or more precisely about what exactly they're doing and saying it's cree. I think it helps to create interesting fractures, among the conservative say in the Bostock, sexual orientation, gender identity case, and so that's one place where bite and pick could really make a difference if he picks up justice who is more of the tagging style and info.
Meeting conservatives on the ground, a textual ism, orbits more the sort of my or style that that could happen the impact on the way that the court's decisions come out, even when the that justice is still dissenting in the end will mean that obviously something we will simply not know until someone is on the court for a couple of years. There is no way to discern it from the hearings. There's no way to tell it from prep for past passed acts or in our Obviously we note no longer no longer legal and actual, almost never get appointed to anything any more after the Bob Work fiasco, because barks views were on paper in books and in a magazine articles and things like that and columns, and you could pluck out one sentence and do not go go to town, and so that's another reason like attend. You Jackson, maybe the maybe the leading candidate
hasn't. She hasn't even written opinion on that on that on the diesel circuits are. This is perfect. That's, like David suitor said that he had never not only had he never had a conversation about abortion not only had he never ruled on abortion, he had never thought about. He had never had a thought about aboard. The man literally testified tat. He had never had a thought about abortion. I just want people to remember that that actually happened in America in nineteen, mainly IE or whatever one another, another great legacy of these supposedly great George W Bush presidency just to be so, he didn't even think about thinking about abortion, give very careful it. It was. It was one of the the only a staggering moment, I remember, was when it Treasury official name, Josh Steiner, caught
He had his diary subpoenaed a camera. What the specific element was, but his diary had been subpoenaed added featured some statement about something that he had. He had country did in his. You know in his testimony and then he said that he had lied to his diary, which at which we They got him off the hook, because he said look I wide and my diary. You can't prove vital and then what They knew who lies in their die like my diary, what do you think I'm why my virus that with that was that and a suitor? So you never never having thought about abortion in his entire life. No fair enough, he lived was mother. There's no indication. We ever had a relation with anybody, so you never had me practical reason to think about abortion, but nonetheless, gaping read. I think it's very sweet that you think it sir shocking, but to get a position on the Supreme Court nowadays it actually later taken was one of the few to debt. Is this area
the ten year old who, when they want to be a Supreme court justice here, she right now is lying to his or her diary. Like that's happening, because that's all I get this that the strategic and professional negotiating it goes on for a lot of these votes is now pretty obvious. She was extremely strategic in her in her her entire life, yet honey She lived a very, very strategic life as by the way, did Brett Cabinet I think never really expected that his his his behaviour as a fifteen year old would somehow figure prominently in his. You know in his in his hearing in Africa's now. Yet now you really do have the pre plan, obviously back to your third fourth brave man, I've Instagram, kids, get off Instagram Human rights and justice
an article about talking now you, those read article twenty years ago in the late Great New York observer, called the little supreme where they actually interview these up and coming lawyers who desperately wanted to be Supreme Court justices, and I try to go back to that article about once a year just to teach my. a little humility. The ability to shut up every once in a while is is any of them on the shore is any of them short listed. No, no. Probably because they were not article Adam. What way, given There is a sense by someone you been hearing her talking about about what what what happens. Now, I'm an eye evident, I mean, I would say, ten tended to think that you couldn't really for we nominated someone or have hearings for someone until until a resignation was in fact, but I gather that not real
the case, and obviously we have had cases where there was a hearing for Colin Powell to be confirmed. The secretary of state in two thousand, even in a just after the court, ruled out. Laura them before before Madeleine Albright was out of office. So are we gonna get here and sooner rather than later, do you think yeah that there'll be hearings at in, but I Briar said: he'll retire effective upon the v, the confirmation of his successor, which has been done with, which is, I think, common. Actually, so it's not apply. The hearings before the retirement. It would be strange, do the hearings before Briar announces his retirement, but I, but who knows maybe democratically we're told you he's gonna announces retirement today, but here's an interesting things Oki would he would retire upon the appointment of his successor right right where the confederate well, what
that mean for the decisions and Joan if they have hearings to so I mean that there were talking. I like the abortion hearing that, like does, he has happened, done its work. percent. If you were tyres, they already voted on the on those cases, The opinions been assigned, or does that happened later? Can can- and it can opinion be showed with his decision on it. If he's already retired not know, and that's one of the reasons why I think Democrats all realise what
stepped into when they raised to pronounce his retirement right there creating a scenario that they're talking on the first day that they want to confirm his successor just as quickly as Republicans confirmed, Amy Coney bear it just really stick to them. It's crazy! It's crazy to do that, because you you dont, want Briar to retire in the middle. The term you want this to play out. You want democratic, surely want to make. Will. First of all, I believe that the nominee and not step in any problems too, they will want to actually when political points with this process play it out over time. give something, give Biden something happy to talk about over the next few months and then vote to confirm her when the term and by the way, use though the decisions we'll be coming out in in the summer to put more wind in the sales of this nomination? So if they have any sense, they would play this out into the summer
they might have to walk back what they were saying in their boat, that exuberant first twelve hours were. They said they were going to confirm his, not his successor by March, which is just crazy, as I have just I'm confused like you know the most important Supreme Court case since Windsor probably is coming down the Pike In July, if he were tyres in the middle of the term is his vote on that? Still doesn't
stand. They already voted on, I mean now. He we he's out and his successor would not be in in time. Rights will be an eight. It would be a vote of eight. Under those circumstances, maybe they assume is facing those cases are all lost, causes anyway, write them, I suppose not losing anything. But no, it doesn't make any sense to push briar out through to push him out before the end of the term. Maybe he'll recalibrate the way he specifically phrases the timing of his retirement. My guess is that the bullet, I guess he had seen enough. I've heard that he was gonna, retire, effective upon the completion of the terms of the sorrow upon the CUP confirmation of a successor, but now given evidence transparent last twelve hours. I suppose you could rephrase
read his letter to say upon completion of this term and the confirmation of my successor right, well, Adam White. Thank you so much for joining us. I know you have to go because you're about to be appointed a fellow by yet another institution somewhere other is my gas cuz. It is a Thursday and that's what happens to you on a Thursday to us. We just soldier along our own boring way. Only one title really sad fact shot how, but it like this again, Adam White. Thank you very much for aid. No one could Stephen job what hordes keep the camel? Borrowing.
Transcript generated on 2022-02-04.