Podcast Transcript: The Kavanaugh Confirmation Hearings

Nina Totenberg and Neal Katyal join Jeffrey Rosen to unpack Judge Kavanaugh’s confirmation hearings.

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Jeffrey Rosen: [00:00:02] I'm Jeffrey Rosen, president and CEO of the National Constitution Center, and welcome to We the People, a weekly show of constitutional debate. The National Constitution Center is a nonpartisan nonprofit chartered by Congress to increase awareness and understanding of the Constitution among the American people. Judge Brett Kavanaugh's confirmation hearings have come to a close and to discuss what we've learned from them and what we've learned about the judicial philosophy of the nominee, I'm so honored and excited to be joined by two of America's leading commentators about the Court and the Constitution. The great Nina Totenberg and my dear brother in law near Neal Katyal. Neal is here in studio with me. I convinced him to come to Philly because he wanted so much to have this conversation with all of you and with Nina. He is a partner at Hogan Lovells, acting solicitor general under President Obama, he's argued 37 cases before the Supreme Court and he and I hope to do a video series in the future called “Brothers in Law.” Neal, welcome to the Constitution Center.

Neal Katyal: [00:01:08] Thanks, great to be here.

Rosen: [00:01:10] And Nina Totenberg is the legal affairs correspondent for NPR, one of the nation's most legendary and prominent and prolific legal commentators. You've all heard her reports on NPR's All Things Considered, Morning Edition, and she anchored NPR's Peabody Award winning coverage of Justice Thomas's confirmation hearings and has covered over 20 Supreme Court confirmation hearings over the past decades. Nina we're so honored that you are here.

Nina Totenberg: [00:01:40] Thank you Jeff.

Rosen: [00:01:40] Let us jump in. Nina you've had this extraordinary record of covering, my goodness, 20 Supreme Court confirmation hearings. What is your performance review of Judge Brett Kavanaugh and how does he compare to the previous nominees that you've seen?

Totenberg: [00:01:57] Well I think that Chief Justice John Roberts probably retired the trophy for performance in terms of saying really as little as possible but doing it incredibly charmingly and with great wit. He was actually quite funny and they were not lines that he could have planned in advance because they often came in response to things that he was asked by- often by Democrats. The second might be Elena Kagan who was similarly witty and said very little. Justice David Souter was a terrific witness, very dry but also fascinating and at one point where he talked about his own conversations about Roe vs. Wade and abortion when he was in law school was pretty riveting. Again you couldn't really tell anything from what he said. This nominee falls somewhere in the middle. Of course the nominees in the- since about 2000 have said less and less. I would say before then certainly nominees declined to talk about many subjects but they also engaged with the senators about many subjects. That seemed to end in the early 2000s and has persisted ever since.

Rosen: [00:03:26] Fascinating. Thank you so much for that. Neal you haven't quite covered 20 but you've seen a lot of Supreme Court confirmation hearings. What is your performance review of Judge Brett Kavanaugh?

Katyal: [00:03:34] Well I certainly agree with Nina that the kind of gold standard was set by the Chief Justice as well as by Elena Kagan. I did sit through both of those hearings and they were extraordinary in their sense of humour, wit and ability to evade virtually any question. And I guess the opposite of that, the polar opposite, is the Bork hearings on the other side in 1987 where you had a nominee who is undoubtedly brilliant but at the same time someone who didn't come off quite as charming and did endeavor to answer every question which ultimately led to his demise.

[00:04:12] For Judge Kavanaugh, I think that probably the thing that came off the most is something that I've seen - I've argued in front of Judge Kavanaugh - is this is one of the most hardworking judges in America. He just knows everything about your case when you're arguing. He knows every footnote, everything in the record and so on and I felt like that really came through with the hearings. I mean he just had absolute mastery of every Supreme Court precedent. No notes, nothing like that. So in that sense I think he came off incredibly well, incredibly competent and polished. But I think Nina is right. He said very little at the hearings and, you know, he kept on referring to how Justice Ginsburg didn't answer very much at her hearings. But actually Justice Ginsburg answered quite a lot at her hearings. You know, she approved of Roe in the hearings, approved of Griswold and Eisenstadt with the birth control cases. She condemned certain cases like Dred Scott and Korematsu. She said the Lemon test for religious- for establishment clause cases was correct and, you know, a whole bunch of other things. So I think measured by that standard, you know, I think Judge Kavanaugh didn't say all that much. Now in Judge Cavanaugh's I guess partial defense, you know, the whole notion of these hearings is historically at least unusual. I mean we didn't have a confirmation hearing for Supreme Court Justice until 1916, and that was of course Louis Brandeis and the only reason that that hearing took place I think was a lot of anti-Semitism at the time. And Brandeis didn't even attend his hearings and in 1925 we had the first nominee, Harlan Fiske Stone, attend his confirmation hearing.

Totenberg: [00:05:52] But not answer questions.

Katyal: [00:05:55] Correct. And then Felix Frankfurter, you know, refuses to answer questions but goes to his hearing and really the modern practice starts in 1955 with John Marshall Harlan who has the distinction of being named probably the most Supreme Court Justicey name in history with John Marshall and Harlan all in his name. But, you know, he does answer questions and of course that's because Brown vs. Board of Education was decided the year before. And that really does set the mark for how this Court, you know, for the last 75 years has been a big player in our American lives. You know, not just in schools but in religion and in all sorts of other areas. And so it is a little unusual to think that we're having this huge decision over this Justice and it's going to definitely change the Court as we're going to talk about in massive ways maybe more so than any nomination in our lifetimes. But yet you have a nominee who doesn't answer some of the basic questions.

Rosen: [00:06:53] OK so you've both said that the Judge didn't say a lot but let's parse what he did say, and I want to ask you Nina, what did we learn about his judicial philosophy? In his opening statement he said, “My judicial philosophy is straightforward. A judge must be independent and must interpret the law, not make the law, interpret statutes as written, interpret the Constitution as written, informed by history and tradition and precedent.” My question is, is it fair to conclude that he is not an originalist in the line of Justices Scalia and Thomas and Gorsuch and is more of a structuralist like Chief Justice Roberts or would you parse it some other way? What is his judicial philosophy?

Totenberg: [00:07:31] Well I'm not going to put a label on it but I do think you know from his opinions and there are a great many more of his opinions that are of consequence, both majority opinions and dissenting opinions, than there were, for example, for Justice Gorsuch, and his opinions show a person who is I think pretty much in the camp of the Court's most conservative Justices, whether they want to call themselves originalist textualists or natural lawists, I don't really care. But he is definitely in that group of Justices, and I would say not in the perhaps slightly more establishment John Roberts even Sam Alito camp.

Rosen: [00:08:25] Very interesting. Neal, I've been urging the people listeners to identify the philosophy of the nominees. Do you think that Justice Kavanaugh if he's confirmed would be a structuralist rather than an originalist? Does it matter, and do you agree with Nina that he's likely to be more conservative than Chief Justice Roberts? Or not?

Katyal: [00:08:45] I think that Judge Kavanaugh's philosophy is conservative. It's not originalist or structuralist even, Jeff, the quote you read from his opening statement had such a grab bag of different methodologies in it. And I think the best way to understand the philosophy is to go back and look at the decisions he has written and the decisions he's written, I don't think, are fairly characterized as originalist or structuralist. Sometimes they borrow from those principles, but they generally do reach a quite conservative result. And, you know, I was surprised. I really think that the Democrats spent so much time trying to attack this man's character and his, you know, reputation and honesty and so on and didn't actually ask the questions about the 300 opinions which, you know, after all is kind of a good measure of what kind of Justice we're going to get. And in particular, for example, Judge Kavanaugh has basically invented a whole new legal philosophy which, you know, you could call the Anti-novelty Doctrine. This idea that if the government is doing something now that it hasn't done in the first 200 years it's presumptively unconstitutional. Now, Jeff, you read in the- from his confirmation hearing statement, his opening statement, that he would quote interpret the Constitution as written. There is no part of the Constitution which says anything like, oh the government can't do something if it hasn't done it before. And indeed if it did have such a doctrine it would paralyze the federal government from the get go and mean that things like NASA couldn't happen because after all space wasn't around at the founding, and things like that. But that is Judge Kavanaugh's view. He's written it in several different opinions and it is a very restrictive view of federal power and yet you heard zero about that at the hearings, and I don't blame Judge Kavanaugh for that but I sure blame the Senate because, you know, these are important questions that should be asked and answered.

Rosen: [00:10:41] Interesting.

Totenberg: [00:10:43] Don't you think-

Rosen: [00:10:43] I was going to just ask you whether you also thought there were questions that Democrats should have asked but didn't, in the same spirit.

Totenberg: [00:10:50] Well the only subject that I heard not discussed at all, of course, was extreme partisan gerrymandering which is out there in the ether somewhere and I don't think- I think that those of us who cover the Court do not expect it ever to be recognized, at least in our lifetimes, as an unconstitutional practice now that Justice Kennedy has left the Court. However, I think I disagree a bit with Neal. I think the Democrats did ask some of those questions. They asked very specifically about guns and that is probably the most specific case in which Kavanaugh as a dissenting judge took the position that if guns were of a type that didn't exist back at the founding and were not regulated at the time of the founding or thereabouts, they couldn't be similarly regulated today. And he said that really pretty explicitly in his dissenting opinion. Dianne Feinstein, the senator from California, asked him about that. Others asked him about it actually at the very end of the hearing when probably lots of people had tuned out, but it was in those last hours of the second day when guns came back up. So I think it's not quite a fair rap to say that the Democrats didn't ask him about some of these views. They asked him about questions of agency structure. They asked him about interpreting statutes and whether a statute could be ruled out of order if it hadn't- and his view is that unless it specifically gives the agency the power to regulate, for example, climate change, which didn't exist at the time that the Clean Air Act was adopted, that then it can't cover climate change. And that is at least a controversial viewpoint. I'm not taking a position that it's correct or incorrect. It's a very controversial viewpoint in the modern era.

Katyal: [00:13:03] So, Nina, I absolutely agree with you that the Senate did ask questions about specific cases, things like guns as you point out. I think my point was a more general one. Jeff had asked about judicial philosophy. And to me, Judge Kavanaugh has a judicial philosophy that is based on this Anti-Novelty idea, and it cuts across not just guns but all sorts of opinions like his opinion striking down parts of the Consumer Finance Protection Board because it's too novel and hadn't been done before. But it's in all sorts of areas and I would have liked to have seen a little more about that and not about a specific case which you know he's going to bob and weave about but about a more general philosophical temperament and view of the Constitution.

Rosen: [00:13:46] Well let's talk about that Consumer Financial privacy case because it says so much about his views on executive power. Nina, remember that was in the exchange with Senator Klobuchar where she asked him about his dissent from the D.C. Circuit's decision upholding the Consumer Financial Protection Bureau and Kavanaugh suggested in the exchange that he would overturn the Humphrey's Executor case, which was decided by Justice Brandeis to uphold the constitutionality of an independent Federal Trade Commission during the New Deal. What did you make about that exchange and his generally questioning the constitutionality of independent executive agencies?

Totenberg: [00:14:28] Well I thought, maybe I misunderstood, but I thought he said that he recognized Humphrey's Executor as binding precedent. Now we all know that that doesn't mean the Supreme Court can't reverse it, but that's a pretty old case and it has governed the structure of American government since the 1930s. So I don't have quite the recollection that you do.

Rosen: [00:14:53] You're absolutely right. Your recollection is perfect that Klobuchar said, “Do you think Humphreys, that was 80 years ago, was correctly decided?” I just happen- I have the transcript in front of me because of the great prep team which is sitting here. And Kavanaugh said, as you suggested Nina, it's a precedent of the Supreme Court and it's been reaffirmed many times, but I thought, he said, that the board could operate without a single member head but have made the person removable at will. And it was, not to get too wonky, but in his dissent itself where he said he reserved the question of whether Humphrey's was correctly decided and indicated that perhaps he might be open to an argument that it was not. So I guess the broader question is, whether or not he would formally overturn Humphreys, do you have the sense based on the exchange with Senator Klobuchar, that his view of the ability of the Congress to set up independent agencies is narrower than Justice Kennedy's?

Totenberg: [00:15:47] Oh I definitely think it does. But whether there are four other votes for that is not entirely clear to me. I don't know whether there are other members- four other members of the Court who are willing to go that far and say that the president can fire agency members at will in an exact contradiction of a case that has governed American government for 80 years or so and, as I recall, I think that- and I'm squinting here because I really can't remember exactly- that Chief Justice Roberts had some things to say about that, about recognizing Humphrey's Executor as at least a limiting principle in terms of what the president could do. Now, the Consumer Financial Protection Board involved a one person creation of the Congress who- a person appointed by the president for a limited term who can only be fired for cause not at the will of the president. And what, my recollection again is, that Kavanaugh said you could have a multimember commission or you can fire the single member person at will. I'm not sure whether he said you could do both together.

Rosen: [00:17:13] Interesting and you make a very interesting point that he might not find four votes for either reconsidering Humphreys or-.

Totenberg: [00:17:22] Also, also I just want to point out that he can't sit on that case.

Rosen: [00:17:25] Absolutely.

Totenberg: [00:17:26] When that case goes to the Supreme Court, he's already sat on it as a lower Court judge. In anybody's ethical list of things you can't do, he has to recuse.

Rosen: [00:17:39] Absolutely right. But Neal, broaden this out to his views of executive power. Our great We the People listeners are wonks and aficionados both of Justice Brandeis who wrote the Humphrey's Executor case and of Chief Justice Taft who wrote the Myers case which gave the president broader power to fire executive branch officials than Brandeis would have done, and Kavanaugh was questioned about Morrison v. Olson, the independent counsel case. Senator Coons said, just two years ago you were asked at a public event to name a case that deserved to be overturned and he said, well I can think of one and that was Morrison v. Olson. So what do we learn about Kavanaugh's views about the president's power to fire executive branch officials and what are the implications of that for the Mueller investigation?

Katyal: [00:18:25] So let me say a couple of things about this, one, starting with the general and then getting more specific to your questions. First you know as Nina was talking about, Judge Kavanaugh, repeatedly in this area and others, said, well, that's settled precedent. You know, whether it's Myers or whatever, that's settled precedent, Humphrey's Executor. Now I think your listeners, you know, might want to know how little that actually means in practice. You know, it's true our legal system is based on something called stari decisis, the rule of precedent, but that's really a rule for lower courts where Judge Kavanaugh's currently sitting. And so you can't overrule a Supreme Court decision obviously if you're a lower court judge or a trial judge. But when you're on the Supreme Court, it's a totally different deal. You can overrule prior precedent and indeed the Court does, you know, routinely, particularly the modern Court. And so, you know, that's why we effectively almost have two different professions. Like when I argue a Supreme Court case it's very different than when I'm arguing a Court of Appeals case, because in the Court of Appeals, I'm just saying, here's what the law has been. But in Supreme Court, it's here's what the law should be, and it's a very different skill set. And Justices, who when they get on the Court, may have been very restrained as lower court judges and applying precedent, you know, take a very different role, a very different interpretation of their job when they get to the Supreme Court. And so even some of these settled precedents that, you know, we've grown up with for 80 years are now vulnerable and certainly Judge Kavanaugh has indicated as much and called these independent agencies headless fourth branches of government and things and suggested that the president should have more power in this area. And I think that this whole question of agencies and, you know, the role of the president is one in which, again, I don't think we got that much coverage in the hearings, but this is a big, big deal. And let me just make it very concrete for all your listeners. You know, net neutrality, the idea that the Federal Communications Commission can regulate and say, you know, that Internet carriers can't discriminate on the basis of content, that's something that the FCC regulated, the Court in D.C., the D.C. Circuit, our nation's second highest court upheld those rules. Judge Kavanaugh dissented and said, nope, those kinds of major decisions can't be made by agencies. They've got to be made by the Congress or perhaps a president in certain circumstances. So these are pretty, you know, radical views. These are not, you know, these are not the views that the Supreme Court has had. And it does suggest that Judge Kavanaugh could really change the law if, as Nina said, he gets the votes and certainly he would be recused from any individual case that he's sat before. But these questions about Myers and Humphrey's Executor and net neutrality will come up in other cases too and so he's going to have many bites at the apple. I mean he's 53 years old and these cases are going to come before.

Rosen: [00:21:33] Nina, you've written an article about what Justice Kavanaugh could mean for the Mueller investigation. So I'll ask you what you took from his views on executive power and then we can have Neal's thoughts after that.

Totenberg: [00:21:44] Well I think that he's portrayed his views of executive power in the most limited way that he could with any intellectual curiosity, but anybody who has watched, for example, that interview where he said that- he was asked, is there any is there any case that you think should be overruled by the Supreme Court? And he says I could name one. And then he names the case in which the Supreme Court by a 7 to 1 vote upheld the post-Watergate independent counsel law, the law that was eventually not renewed by Congress after the Ken Starr investigation. And the Democrats and the Republican- presidents of both parties by that time had been harassed and burned enough by these special prosecutors that they got rid of the law, which is sort of the best way for something like this to happen, but he clearly thought the Court was wrong and endorsed with, in other places, with great admiration Justice Scalia's dissent which is a brilliantly written dissent, whether or not you agree with it. I wish I could write like that. But I think that his view of executive power, particularly in light of his experience in the Bush administration after 9/11, is one of great deference to keeping the president's eye on the ball and not letting him be bothered by all these gnats that are coming around to investigate him. Now as luck would have it, we face a situation with the current administration in which I suspect that personally Brett Kavanaugh does not consider these gnats. He considers them serious questions. So he clearly changed his mind somewhat once. He was a star prosecutor for Kenneth Starr and a very avid one at one point and changed his mind by his own admission, rethought the proposition after that- after his experience in the Bush White House. But I think that the evidence is that he has long harbored great doubts about even the Nixon investigation. If you listen to his answers very carefully, he always lists the Nixon case, the Supreme Court's Nixon decision, as a great example of judicial independence. It doesn't say they were right.

Rosen: [00:24:26] Fascinating. Neal, what do you make of Judge Kavanaugh's testimony about Nixon? As Nina said he had once criticized it, saying, heresy as it may be to suggest it, it's possible Nixon was wrongly decided. But in the hearings, he praised it as a great example of judicial independence. Do you think he was endorsing the case? And do you think he's changed his views about executive power? And then you can get to the question of what all this means for the Mueller investigation.

Katyal: [00:24:52] Well I think the first and most important thing to note is just how extraordinary all of these questions at the hearing were. I mean, things about the special counsel regulations where Nixon- can you indict a sitting president? Can you subpoena a sitting president? Which is a Nixon question- Nixon tapes question. You know, can a president pardon himself? I mean, that underscores how unusual this Supreme Court hearing is at this particular moment in time. You've got a president who is nominating Judge Kavanaugh to our nation's highest Court. The president himself is under some criminal suspicion even by his own former personal lawyer. You've had his national security adviser pleading guilty. You've had all sorts of surrounding information around him and the in the confirmation hearing takes place against that backdrop. And so Judge Kavanaugh was under a lot of pressure to try and suggest that his prior criticisms of Nixon weren't right. I don't think they were particularly convincing. I think, you know, he said what he said about Nixon and that of course is the important case because it does establish the idea that you can subpoena a president, at least for his tapes and records, and that of course may be incredibly important in the weeks and months to come. And so, you know, look, I don't think that the president tried to have- well, who knows whether the president tried to have a conversation with Judge Kavanaugh about his views on these issues. It wouldn't surprise me frankly given his attitude towards the norms of the law and the way he treats his Justice Department. But I of course expect Judge Kavanaugh not to have answered any such questions privately with President Trump. But I do think it's fair to say, look, of the 25 people on the list of names that the president had selected as Supreme Court finalists, Judge Kavanaugh tends to be the most suspicious when it comes to criminal investigations of a president of anyone on that list. And, you know, I suspect that that's one important reason why he was picked.

Rosen: [00:26:55] Nina, some of these Democratic senators suggested explicitly that President Trump picked Judge Kavanaugh in order to protect himself. It was an extremely explosive ascription of motive. Do you think it's fair or not?

Totenberg: [00:27:12] Well I think it may have overcome his hesitation about anybody who is from the D.C. circuit and sort of Washington life. I think he liked picking people from a list that didn't have anybody on it from Washington, D.C., from the Court of Appeals here in Washington, D.C. I think it appealed to President Trump's notion of who he is and who his supporters are to have people from other parts of the country who sort of of necessity have not actually ruled on issues like this and are less likely to have pondered them. And so therefore I think the- I don't know whether he picked him for that reason. I just think that Kavanaugh is probably the- of everybody on that list, now I don't pretend to know the others and have read everything that the others have done. I just think he is so much smarter, so much more experienced, so much more, as a human being, deft, that he will be a far more influential member of the Court very quickly than certainly Justice Gorsuch has been so far or that any of the others were likely to be.

Katyal: [00:28:33] I agree with what Nina is saying about his ability, his hardworking, his brilliance and his deafness. It's just my point is that's never someone who Donald Trump ever picks. It just happened to be in this one instance that he did so. And it does, in my mind, raise some suspicions and I frankly feel bad for Judge Kavanaugh because you know he is someone who deserves by all accounts to be on the list for exactly the right reasons. It's just that this president doesn't tend to follow the right reasons.

Rosen: [00:29:02] Let us talk about the crucial question of precedent. It's asked at every confirmation hearings and there is bobbing and weaving. Nina at a recent Federalist Society conference there was a vote. Will Roe v. Wade be overturned? And a overwhelming majority voted no. They don't think it will be overturned although it might be narrowed. When push came to shove based on what you heard at the hearings under the assumption that Chief Justice Roberts might vote not to overturn Roe because of his concern with the institutional legitimacy of the Court, do you think Judge Kavanaugh would vote with Roberts or with the Conservatives who would vote to overturn it?

Totenberg: [00:29:45] Gee, I really don't know. My guess is if you- if they don't have five votes they're not going to overturn Roe. You know, if they don't know when they take such a case they are- if there isn't an easier way to do it, you knowm for example I could easily see that they would uphold a lid of 20 weeks instead of the second two trimesters. I could easily see essentially overruling what the Court just did in the Whole Women's Health case from Texas where half the clinics in the state were shut down because they couldn't meet the very stiff and what the Court said were unreasonable regulations for these clinics. I could easily see many ways for the Court to gut Roe without explicitly overturning it and therefore preserve the facade at least, and I would have to say that I would imagine if that were to happen, this has nothing to do with law, that science would respond. We already know- that right now there are states that are barring medication abortions which are now much easier than they used to be. And I wouldn't be surprised if in a Democratic administration there would be regulations passed that would allow the medication to be sent via the U.S. mails interstate. You know these things- you can't- there are some things you just you can't ban. It becomes- it's too late. And so I would be surprised if Roe versus Wade were completely reversed but not totally surprised and I don't think it matters that much. I do think that there are the votes there to circumscribe the ability to have an abortion in many many states and that it'll make two Americas in terms of the availability of abortion.

Rosen: [00:31:52] So interesting. Neal, same question to you: would Kavanaugh vote to overturn Roe based on his statements in the hearings or not?

[00:32:00] Well I don't think he said enough one way or the other to tell us at the hearings. But I 100 percent agree with Nina. You know you don't need to overturn Roe formally in order for it to be cut back to the point of being practically not that important. And we do have actually again, you know, I keep on harping on his prior decisions because I do think that tells us something, we do have a pretty good sense of where he stands on these questions from his opinion in a case called Garza versus Haagen and that was a case in which a immigrant minor wanted to receive an abortion. Judge Kavanaugh wrote the initial panel decision- the decision by two judges on the Court ruling that the Office of Refugee Resettlement could prevent her from terminating her pregnancy for two more weeks while the agency was looking for a sponsor. And Judge Kavanaugh's opinion there was actually reversed by his colleagues sitting en banc, the full court. In the course of that- his two different opinions, his dissent from en banc and his initial panel decision, I think you really did get a sense of how narrowly or broadly he would view a right to having an abortion and you know when something would be an undue burden and his colleagues profoundly disagreed with him. I suspect we'll see a lot of things like that from a Justice Kavanaugh with respect to reproductive rights.

Totenberg: [00:33:26] That case was one in which I thought the questioning actually was pretty good and it was for Mazie Hirono.

Katyal: [00:33:32] Agree.

Totenberg: [00:33:32] Because Judge Kavanaugh said repeatedly, look, this was a 17 year old young woman, a minor. She should get counseling from a family member or a friend if they can find a suitable one or a foster family if they can find a suitable one to give her counseling before she makes this kind of a decision. And Mazie Hirono said, what you want her to talk to her family? They were the ones who beat her up. That's why she was there. And then he said, well there are other mechanisms. And she said there's a provision for a judicial bypass in Texas and she went through that. The judge agreed that she was mature enough to make this decision and had good reasons to make this decision. And I thought that that was one of the rare points where his answers really looked flabby.

Katyal: [00:34:24] I completely agree and you know what's interesting about that is you know Senator Durbin had asked about that before and so he was ready. He knew that this question had to be coming about judicial bypass and yet he didn't give, I thought, a pretty convincing answer even the second time at bat.

Rosen: [00:34:41] Why don't we run through some of the other large areas of law and try to imagine how the Constitution might be different if Justice Kavanaugh is confirmed. You know the list that liberal critics of Judge Kavanaugh give of cases that might be overturned include affirmative action, environmental protections, deference to administrative agencies more generally, possibly marriage equality although there's some disagreement about that. Among that list, which of the big cases that Justice Kennedy was with the liberals do you think will be overturned and which won't?

Totenberg: [00:35:22] Well I can't give you chapter and verse. The one that won't I think is gay marriage. I think the horses are out of the barn on that one and you can't close the barn door anymore it's just too difficult. But whether, moving on, whether you say that gay couples can't be discriminated against, that's a different question and I'm not at all sure that there are five votes on the Court with Kavanaugh to protect any sort of anti discrimination laws. We'll just have to wait and see. Everything else you mentioned, if there are four other votes and that's always a big if, I think the Kavanaugh position is you know not to regulate beyond what the statute said at the time it was passed and then we could go through all the other ones you mentioned. I think that those are all reasonable possibilities that the Court will go back to a very different Court, as far back as 60 or 70 years ago in terms of its conservatism. But I don't know for sure that there are four other votes. You know when I talk to lay groups and I try to describe two different types of conservative and two different types of liberal. And one says, look, I might not have drawn the basketball court lines this way but they've played the game this way for 50 years or more, a hundred years or more, and people have come to expect that this is the way you play basketball and I'm going to defer to that. And then there are those who say this was a crazy way to lay out the basketball court and I'm going to change it. And there are five people on the Court now who are very close to being- closer to the group who say let's change the lines than they are to let's preserve them the way they've always been. And in the 60s and 50s that group was liberals who changed the way elections are conducted, who got rid of- who gave us one person one vote which most people, Americans, I suspect think was there forever and wasn't. It's relatively new because the districts- the state legislative districts and congressional districts were so uneven in population. There are all kinds of decisions that the liberal Court made to change the lines of the way that the Court is drawn. Both the basketball court and the United States Supreme Court, and now the Conservatives are on the verge of doing the same thing.

Rosen: [00:38:10] Very provocative and interesting analogy. Neal, usually on We the People we have a conservative and a liberal voice so I'll channel the conservative response which would be to say you know will the Court under Kavanaugh and Chief Justice Roberts be returning to the original Constitution as written? Or do you agree with Nina that they'll be making up new rules and what do you make of her notion that although marriage equality may survive, affirmative action, environmental regulations, and the administrative state more generally may be on the chopping block?

Katyal: [00:38:43] Well I think that it's hard to know whether the original Constitution at written will be upheld by Judge- a Justice Kavanaugh or which view of the basketball court, to use Niños analogy, he's going to ultimately adopt. But I do think we know one important thing which is what we are losing by losing Justice Kennedy. You know I've argued in front of him 37 times and each time I would say Jeff he really merited the appellation you gave him maybe a couple decades ago as the agonizer in a piece you wrote. It was very clear to me every single time he was sitting there listening without his mind made up, you always had a shot with Justice Kennedy. It's not clear to me that's true about Judge Kavanaugh. And again you know that's not necessarily a bad thing. I think that's true about some of the other Justices as well. But it is a real change in that by losing Justice Kennedy, that swing vote, I do expect the composition of the Court to change. You know we have a very good empirical study by Lee Epstein at Washington University studying Justice Kennedy's tenure on the Court and finding that he sided with the so-called left of the Court, the four appointees by Democratic presidents, 51 times and that includes really important things like affirmative action and race, stuff on Guantanamo, terrorism, consumer regulation, greenhouse gases, and the death penalty. In each of those areas, I suspect we will see some changes in a conservative direction as we lose Justice Kennedy. And I also agree with Nina. I think marriage equality is the one place in which we're not going to see a change. I mean to pronounce these marriages which have now taken place for several years without the sky falling or you know us turning into you know the kind of laundry list of parade of horribles that the Conservatives use, I think empirically you know those arguments have been proven false and it'd be a really odd thing for the Court to kind of somehow reverse marriages that have now been the law of the land.

Totenberg: [00:40:46] The other part of this that is unknowable is what happens in the body politic and how the Court reacts to that. The one thing we do know is that Justice Kennedy, his absence will make a- not just a numerical difference, voting in certain cases, but you can see his hand as a moderating influence in terms of how far the Liberals were willing to go and how far the conservatives were willing to go even when he sided with them. So the last time we saw that was at the very end of the term where the Court upheld the third version of the travel ban and Kennedy wrote a concurrence and the concurrence, some people saw as a sort of a last- a swan song. But I saw it as classic Kennedy, saying, look, you have to treat people as human beings. Can't we try to accommodate each other better? And I think that he was always a force for that in the majority or the minority but especially when he was in the majority so that even when he was in the majority with conservatives, he was a somewhat moderating influence. And the same thing was true when he was in the majority with the liberals.

Katyal: [00:42:10] And I think Nina's point about the body politic brings up an important corollary point which is again how anomalous this nomination is, not because the president's under investigation but because of the mandate that he has. I mean he only barely won the election and lost the popular vote. He might have had some help from his friends too. But you know Judge Kavanaugh is en route to being confirmed by what looks like 51 to 55 votes at the outset, at the maximum, and historically that's a you know virtually an all time low. I mean Justice Kagan got 63. Justice Sotomayor got 68. Traditionally there has been a filibuster rule. And so you have the prospect of the Court moving in a extremely profound direction differently than it had been. And by a president who doesn't quite have that same popular mandate that you know say Reagan had or something like that.

Rosen: [00:43:02] Nina, given the 20 confirmations that you've covered, does it feel to you like-

Totenberg: [00:43:07] I think it's 20, I'm not sure.

Rosen: [00:43:08] It's really impressive. It's a remarkable achievement. Does it feel to you like something has changed about the process and as a result something will change about the Court?

Totenberg: [00:43:19] Yeah I think so. I mean obviously the Supreme Court has become much more of a political issue, a polarizing issue and for the first time in this election it actually made, I think, the issue made a difference in the election. I think after years of attention by conservative activists and a lot of money being poured in and very strong feelings by social conservatives, those folks voted, even when they didn't really like Donald Trump, thought he was a boor, wouldn't want him really in the same room with his kids, all kinds of things, they still voted for him because of what he promised in terms of the Supreme Court. And the Democrats, the liberals, have never had this as their priority issue. And Democratic presidents have frittered away opportunities to populate the lower courts that Donald Trump has capitalized on. And without the filibuster now, even for the Supreme Court, there is no need for any kind of super majority to put somebody on the Court. All you need is 51 votes. And that is very different.

Katyal: [00:44:34] I 100 percent agree with what Nina is saying there. The Democrats have never considered this a priority particularly in the lower courts. The one asterisk I'd say, an exception, is Justice Obama's two nominees to the Supreme Court-

Totenberg: [00:44:46] President.

Katyal: [00:44:47] Excuse me, President Obama's Nominees to the Supreme Court Sonia Sotomayor and Elena Kagan. I think both in their own way will prove to be maybe President Obama's greatest legacy.

Rosen: [00:45:00] Well it is time for closing arguments in this wonderfully illuminating conversation. The question is a simple but important one: Nina, if you were to project forward 10 or 20 years, how will the confirmation of Judge Kavanaugh, if he is confirmed, change the Supreme Court and the Constitution?

Totenberg: [00:45:21] Well I think it will dramatically change the Court. An already conservative Court into a very very very conservative Court, a Court that may greatly disappoint even conservatives by constricting what Congress can do and even at times what the president can do on the economy. And I think it may lead to some real battle royals. I have never thought that there was any chance of limiting the terms of Supreme Court Justices but if there is a real contretemps and a feeling in the public that the Court is striking down their will, the public will, that could happen. I'm not projecting that because I think these folks are all very smart. They do have a sense of history. They do care about their legacy. And I have no sense of how determined they are to prevail over public sentiment if it comes to that. In the end you know in President Roosevelt's Court packing plan, the famous one Justice switched his vote and became much more amenable to the New Deal's legislation. And as a result, for a couple of generations, every generation after that, Justices said and candidates for the Court said that they were simply deferring to what Congress had legislated. If there's ever a feeling that that's not happening I think the whole system could get a bit of a rattle. Whether we're really there or not I have no idea at all.

Rosen: [00:47:27] Thank you so much for that. Neal, last word to you. How will the confirmation of Judge Kavanaugh if he is confirmed change the Supreme Court and the Constitution?

Katyal: [00:47:37] Well I agree with Nina that there's a risk that if Judge Kavanaugh's confirmed that the Constitution and the Supreme Court moves in a seriously conservative direction, constitutional interpretation moves in a seriously conservative direction. I do think that will call for you know real radical reform at the Court. I don't think that reform takes the form that Nina is talking about, about term limits for Justices who after all under Article 3 have life tenure so you could only do it going forward for new Justices absent a constitutional amendment. But I do think that there will be a radical call for change and I think that call for change will be to expand the size of the Supreme Court more than nine, which historically you know we've not always had nine, we've had nine since 1867, but we've had five and six Justices in the past and different numbers. And you know I think two important facts which we haven't talked about at all yet or one name, Merrick Garland, which we haven't mentioned but you know the treatment of him which was unforgivable, and then all of this stuff surrounding the Kavanaugh documents and how the Republicans broke with every precedent and every rule including the ones that they insisted on to rush this hearing through, and if the Court moves in the type of conservative direction that Nina was suggesting might happen, I think all three of those things together coupled with the fact that the president didn't have a very strong mandate and Judge Kavanaugh may not get that many votes in his confirmation, altogether may undermine the legitimacy of the Court a bit unfortunately and call- and lead to these calls for expanding the size of the Court to 13 or 15 or whatever.

Totenberg: [00:49:19] I think- I want to be on the record as saying I think Neal is crazy.

Katyal: [00:49:24] You've been on that record many times.

Totenberg: [00:49:27] I don't think we're ever going to hear about these documents again. I think that as precedent shattering as the Garland nomination was, I don't think that will have a lasting impact. I think that packing the Court with- by expanding it has such a bad name in history that's never going to happen. And I'm not predicting that even limiting the Justices' terms will happen, but I am saying that if the Court gets as conservative as it could and if we were to have for example unpleasant economic times and have Congress somehow limited in dealing with it, I think that could have real reverberations and I don't know quite how it will play out. I think it's coocoo to think that it's going to expand the Court. The only proposition I've heard that I still don't think has legs but maybe could is limiting the terms of the Justices.

Rosen: [00:50:25] Thank you so much Nina Totenberg and Neal Katyal for a vigorous illuminating and at the end nicely contentious discussion of the future of the Supreme Court and the Kavanaugh nomination. Nina it's wonderful that you joined and it's such an honor always to have you. Neal thank you so much for coming to Philly and Nina and Neal, look forward to seeing you both again soon in Washington, D.C., which I gather is now being called crazy town. Neal, Nina thank you so much for joining.

Katyal: [00:50:56] Thank you.

Totenberg: [00:50:57] Thank you for having us.

Rosen: [00:51:00] Today's show was engineered by Greg Sheckler and produced by Jackie McDermott and Scott Bomboy. Research was provided by Lana Ulrich and Jackie McDermott. 

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