Guest Host: Indira Lakshmanan

The Supreme Court Justices arrive before the State of the Union address to a joint session of Congress on Capitol Hill January 12 in Washington, D.C.

The Supreme Court Justices arrive before the State of the Union address to a joint session of Congress on Capitol Hill January 12 in Washington, D.C.

No sooner than the news broke of the death of Supreme Court Justice Antonin Scalia than Republicans in Congress made clear they’d reject any Obama nominee to replace him. Then this week Senate Republicans made a vow they wouldn’t even meet with any prospective nominee, much less hold confirmation hearings. The President plans to name a candidate anyways but prospects are slim for a new justice to be seated this year. That means an eight-member bench will decide major cases on abortion, voting rights, immigration and affirmative action. Guest host Indira Lakshmanan and her guests discuss Supreme Court politics and what a vacancy means for key cases on the docket of the nation’s highest court.


  • Jeffrey Rosen President and CEO, The National Constitution Center; author of the forthcoming book, "Louis D. Brandeis: American Prophet" (June 2016)
  • James Thurber Professor and director, Center for Congressional and Presidential Studies at American University; author of "Obama in Office: The First Two Years"; co-editor with Antoine Yoshinaka of "American Gridlock: The Sources, Character and Impact of Political Polarization"
  • Nina Totenberg Legal affairs correspondent, NPR.


  • 10:06:54

    MS. INDIRA LAKSHMANANThanks for joining us. I'm Indira Lakshmanan sitting in for Diane Rehm. Diane's on a book tour. This week, Senate Republicans signed a letter pledging not to hold confirmation hearings or even meet with anyone President Obama may nominate to the Supreme Court. The president insists he must fulfill his constitutional duty to vet and put forth a candidate, but chances are slim that Republicans won't stand in the way.

  • 10:07:20

    MS. INDIRA LAKSHMANANTo discuss the latest Supreme Court politics and what an eight-person bench may mean for key cases this term and maybe even the next one, I'm joined in our studio by Nina Totenberg of NPR and James Thurber of American University. And joining us from Philadelphia, Jeffrey Rosen of the National Constitution Center. If you want to join the conversation, we'll be taking your comments and your questions throughout the hour.

  • 10:07:44

    MS. INDIRA LAKSHMANANYou can call us on 1-800-433-8850. You can send us an email to or send us a message on Facebook or a tweet. Welcome to all of you and thanks so much for being here today.

  • 10:07:59

    MR. JAMES THURBERGood morning. Good morning.

  • 10:08:00

    MS. NINA TOTENBERGMy pleasure. Good morning.

  • 10:08:01

    MR. JEFFREY ROSENThank you.

  • 10:08:02

    LAKSHMANANSo Nina, I want to start with you. The political wrestling match over the Supreme Court began within hours after Justice Scalia's death was announced.

  • 10:08:11

    TOTENBERGActually, minutes.

  • 10:08:13

    LAKSHMANANMinutes, okay. I was trying to be polite, but I think you're right. Within minutes. And it's escalated this week. So bring us up to speed. Where are we now?

  • 10:08:21

    TOTENBERGWell, in less than an hour after the Scalia death was announced, the Senate Majority Leader, Republican Mitch McConnell said the president shouldn't nominate somebody and we won't consider anybody. For a few days, it looked like there was a little wiggle room there. Some senators on the Republican side seemed to be saying, well, we shouldn't look like obstructionists. We should perhaps have a hearing, even Senator Grassley didn't shut the door to the idea of having a hearing.

  • 10:08:54

    TOTENBERGBut after the Republican caucus this week on Tuesday, the clear consensus and announced consensus and everything consensus was we're not doing squat for this president. They send somebody up here. He won't get a hearing or she won't get a hearing. The individual won't get a vote. In fact, why would we meet with them at all in the usual courtesy visits. We wouldn't do that. So it was a pretty stonewall performance.

  • 10:09:22

    TOTENBERGAnd then, the Democrats went into deep drama mode saying -- to make hay out of this, saying, you know, do your job and millions of petitions were delivered already to the Senate. A sort of fake hearing was organized by Democratic senators. Republicans then pointed to a speech that Senator Biden -- then Senator Biden, now Vice President Biden -- had given, suggesting in 1992 that if there were a vacancy, perhaps the Democrats should not consider -- this was in June of '92.

  • 10:09:55

    TOTENBERGIf there were a vacancy, perhaps the president should not nominate somebody and wait for the next president. Of course, there wasn't a vacancy, but the tone of the speech, which went on for a very long time in typical Biden fashion, has plenty of fodder for Republicans to use and, of course, there's lots of fodder for Democrats to use from the other side. In fact, I have a file now that I've created called "Reversing Falls," which is all the things that senators say when they want it to go one way that are then used against them when it goes the other way.

  • 10:10:27

    LAKSHMANANThat’s a pretty useful folder. You could be doing opposition research for either of the parties, it sounds like. All right. Well, Jim Thurber, what happens now? The president repeated yesterday that he will put forth a nominee, despite this letter and this pledge from the Senate judiciary Republicans. Does he have any chance at all of filling this vacancy?

  • 10:10:47

    THURBERWell, that's unknown. He is going to go forward with someone and he's -- there was a trial balloon, so to speak, with Sandoval from -- a governor from Nevada, a Republican moderate, that he might nominate him. Reid is supporting him. The Republicans said no, we won't even consider somebody from our own party. But he will nominate someone. There'll be a background check, you know, before that's done in the White House.

  • 10:11:16

    THURBERWhat the Senate does, what the Republicans in the Senate do is unknown, although they firmly said that they will not have a hearing, which is incredible. That's unprecedented. We should emphasize that. Their statement was "not since 1932 has the Senate confirmed any presidential election year Supreme Court nominee to a vacancy arising in that year." Actually, there have been six. People have done a lot of research on this since they made that statement and so there have been six.

  • 10:11:47

    THURBERAnd to reinforce what Nina said, there's a whole list of flip-flops. She has a folder where they have changed. I have a flip-flop folder and both the Democrats and Republicans have taken either stand on this. This is part of the polarized Capitol, polarized Congress and I think the American people are very angry about that. I think there will be consequences for this if this continues.

  • 10:12:12

    LAKSHMANANWell, you made a reference to Senator Harry Reid, the Democratic Senate minority leader, a very canny politician supporting this Republican whose name came out, who's from his home state of Nevada. We'll get back to that, but I want to pick up on something else you said, which you used the word, unprecedented. Jeff, President Obama says he has a constitutional duty to appoint a justice and that it is unprecedented that he should not be allowed to. Remind us what the Constitution says and how unprecedented is this?

  • 10:12:46

    ROSENWonderful. Well, I have my handy pocket Constitution here published by the National Constitution Center, which people can get online and let's look what Article 1, Section 2 says. It says, "he shall have the power with the advice and consent of the Senate, shall appoint ambassadors and other public ministers and counsels, judges of the Supreme Court and all other officers of the United States." So he has the power to nominate and then, with the advice and consent of the Senate, he can appoint.

  • 10:13:21

    ROSENSo he said yesterday, on SCOTUS blog -- and as a blog publisher, I was very jealous that he broke his scoop on SCOTUS blog.

  • 10:13:29

    LAKSHMANANGuest blogger, President Barack Obama. Guest blogger.

  • 10:13:32

    ROSENIt's so exciting. President Obama, Constitution Daily at the NCC is available to you as well. But he said that "the Constitution vests in the president the power to appoint judges to the Supreme Court. It's a duty I take seriously and one I will fulfill in the weeks ahead." And after he makes his nomination, he will argue that, indeed, a refusal to hold a hearing or an up or down vote is unprecedented so lots of history back and forth here, but some basic numbers are helpful.

  • 10:13:59

    ROSENI want to begin, of course, Louis Brandeis, my hero, whose -- riveting biography of whom I'll be publishing on June 1. That's the hundredth anniversary of Brandeis' confirmation. Brandeis was nominated on January 8, confirmed on June 1, 125 days between nomination and confirmation. That's the longest waiting period in American history. It's the most contentious nomination. Part of the opposition is to Brandeis' Judaism, but more to his opposition to the curse of bigness and business in government.

  • 10:14:28

    ROSENBut in the end, Brandeis is handily confirmed 'cause it's a Democratic president and a Democratic Senate and it turns out...

  • 10:14:33

    LAKSHMANANAnd in that case, we're talking about four months, a four-month delay.

  • 10:14:36

    ROSENYes. Far less than a year or more. There was a good op-ed piece in the New York Times a few days ago that summarized a bunch of salient bits of history. On 13 occasions, according to Timothy Hughner (sp?) , there's been a vacancy during an election year. In 11 of those instances the Senate took action. All five cases in which a vacancy occurred during the first quarter of the year, the president successfully nominated a replacement.

  • 10:15:04

    ROSENThe salient thing, though, is that it's -- you have to go back to 1888 to find a time when there was a Democratic -- a split government, basically, and the Republicans are making a lot of hay about the fact that presidents don’t get through nominees from the opposite party during election years or at least they haven't since 1888. But simply descriptively, without, you know, taking a position on whether the Constitution compels or doesn't compel a hearing, it is true that there has never been a waiting period more than four months in American history and that there have been several successful nomination 11 times during elections years that the Senate did take action on the president's nomination during an election year.

  • 10:15:46

    LAKSHMANANEleven times in an election year within the past 100 plus years or within...

  • 10:15:51

    ROSENWithin the past 200 plus years.

  • 10:15:52

    LAKSHMANANWithin 200 plus years, okay.

  • 10:15:52

    ROSENFrom the beginning.

  • 10:15:53

    LAKSHMANANOkay. Because...

  • 10:15:53

    ROSENAbsolutely, from the beginning.

  • 10:15:54

    LAKSHMANAN...White House press secretary, Josh Earnest, tweeted that every Supreme Court nominee since 1875 has gotten either a hearing or a vote. If we try to fact check him on this, is that correct?

  • 10:16:06

    ROSENI, unless my colleagues disagree, don't know anything to the contrary. Now, it's important to note...

  • 10:16:10

    TOTENBERGActually, Jeff...

  • 10:16:12

    ROSENGo ahead, Nina.

  • 10:16:12

    TOTENBERG...there was a -- Senator Coons had a pen and pad and we have to get the congressional research service to tell us the true answer to this. He quoted Grassley as having told him that since the judiciary committee was created in 1816, every nominee, who didn't withdraw, obviously, but every nominee got either a hearing or a vote or both 'cause some of them went directly to the floor without going through a hearing in the earlier days.

  • 10:16:40

    TOTENBERGYou know, we're going to have check all that out, but it's been, look, suffice to say it's been an enormously long time. And it's worth exploring why Republicans have done this and it really is, I think, because anything can happen in a ballgame and if there were a confirmation hearing and a nominee were appealing and charming and seemed reasonable, it only takes four Republican votes, if the Democrats stick together, to get confirmation.

  • 10:17:13

    TOTENBERGSo then, it becomes even hairier to oppose somebody if you don't find some skeleton in the closet. And I would use as my model of the charming nominee, Chief Justice Roberts who got 22 Democratic votes. He got half the Democratic votes in the Senate when he was confirmed, in part, because he seemed very reasonable, lovely, charming. He was the perfect nominee and...

  • 10:17:41

    LAKSHMANANNominated by President George W. Bush, of course.

  • 10:17:43

    TOTENBERGYes, and nominated by President George W. Bush. And it's an example of what they're worried about.

  • 10:17:50

    LAKSHMANANSo just quickly, before we go to a break, we don't know of any case where a president has blocked from putting in a nominee in an election year.

  • 10:17:57


  • 10:17:58

    LAKSHMANANAll right. We are going to take a short break, but please stay with us. We'll take your comments and your questions. When we come back, more on the Supreme Court vacancy and what it means. Stay with us.

  • 10:20:02

    LAKSHMANANWelcome back. I'm Indira Lakshmanan sitting in for Diane Rehm. This hour we're talking about the vacancy on the Supreme Court and what it will mean not only for American politics but also for decisions that are on the court's docket this term. Joining me here in the studio, James Thurber, director of the Center for Congressional and Presidential Studies at American University. He's the author of "Obama in Office: The First Two Years." Nina Totenberg, legal affairs correspondent for NPR. And Jeffrey Rosen, president and CEO of The National Constitution Center and author of the forthcoming book, "Louis D. Brandeis: American Prophet."

  • 10:20:38

    LAKSHMANANOf course, we were just talking about him. He's the Supreme Court justice who previously had to wait the longest, 125 days, before going into his seat. So, Nina, I want you to tell us more about the man whose name was reported yesterday by The Washington Post as a candidate under consideration, this Republican governor of Nevada.

  • 10:20:58

    TOTENBERGBefore I do that, you asked me if anybody had ever blocked the president from making an nomination. Nobody can prevent him from making a nomination. They just can, in the Senate, prevent it from being considered. And I don't know of any case where it was -- it went this far. But to Brian Sandoval, the governor of Nevada, considered something of a moderate among the Republican -- the 31 Republican governors. He was a federal district court judge for four years, I think, four or five years. Apparently didn't love that job enormously because then got back into -- left and got back into politics.

  • 10:21:37

    TOTENBERGHe's a very popular governor. He -- some people characterize his views on abortion as pro-choice. The Planned Parenthood, I noticed, called it a checkered record. Labor is not hugely fond of him. But he doesn't have a record like Scott Walker, they don't loathe him. He has a number of other positions, at least political positions, which doesn't necessarily mean that that's the same thing as a legal position, that are sort of Republican -- more Republican centrist than, let's say, the leadership of the House and Senate at the moment. What I don't know about this suggestion -- it clearly comes from Reid -- is whether this…

  • 10:22:21

    LAKSHMANANHarry Reid.

  • 10:22:21

    TOTENBERG...Harry Reid, the Democratic leader -- whether this is a sock to Harry or whether it's really serious and the White House is looking for somebody who might actually with it pry open the doors. Or whether it's a way to make the Senate -- the Republicans in the Senate look even more obstructionist. You know, there are a variety of storylines here, narratives. And I'm not sure which of these this fits. And, of course, different people in the White House could have different approaches to it. But it was a clear leak. And the purpose of the leak is, fill in the blank. What do you think, Jeff?

  • 10:23:00

    LAKSHMANANWell, I...

  • 10:23:01

    ROSENYou know, I think it's all of those things. He was selected unanimously as a judge before this in the Senate so, you know, there was no controversy there. There's some question about whether he was going to run for the Senate and Harry Reid's seat. He said that he didn't want to but there was a great deal of pressure for him to do that. So there's...

  • 10:23:21

    LAKSHMANANHarry Reid is, of course, retiring. And funnily enough, Sandoval beat Harry Reid's son in the race for the governor of Nevada. So that's an interesting sideline.

  • 10:23:28

    ROSENThat's right. With Harry Reid not supporting his son very much.

  • 10:23:31

    LAKSHMANANThat's right.

  • 10:23:31

    ROSENIt's -- it was controversial. But really the only tossup seat among the Democrats is Harry Reid's seat. And so, you know, there's -- that's part of the narrative also. But it's an interesting selection for the Republicans. The reaction by Cornyn was, this is not about personality. This is about process and we want to wait for the people to tell us what to do. Now, the people don't select Supreme Court judges, presidents and the Senate do.

  • 10:24:02

    LAKSHMANANYeah. Although, Jim Thurber, I have to ask you, is the White House in a way trolling or taunting the GOP leaders here by leaking the name of a Republican. Because the Senate Majority Leader, Mitch McConnell, and the judiciary committee have said, no. They're going to block any Obama pick. But can they really refuse to even meet with one of their own, who happens to be one of the most popular Republican governors in the country and a Hispanic to boot?

  • 10:24:26

    THURBERWell, I think it's going to be very difficult, if indeed he is nominated. And it goes for is -- there are several Republicans that are in competitive seats. Kirk in Illinois, others that have said that they would meet with the nominee. But they've broken with McConnell on this. McConnell really persuaded Grassley, in my opinion, because there was an early comment -- Grassley, chairman of the judiciary committee -- early comment by Grassley that he would have a hearing. I'm not sure where that came from. It was out in the news for about one hour and then it was squashed.

  • 10:25:00

    THURBERSo I think that McConnell's putting a great deal of pressure on these Republicans to take this position. But if there's a moderate Republican or any kind of Republican comes forward, it's going to be very difficult for them not to meet with him.

  • 10:25:15

    LAKSHMANANThat's right. So in a way it is kind of dangling it in front of their face. Well, Jeff, tell us what the president is looking for in a nominee. You mentioned that blog post he wrote yesterday.

  • 10:25:25

    ROSENWell, we know it. Because in that blog post he said very specifically what he's looking for. And everyone should obviously check it out at SCOTUS blog, and then go to the National Constitution Center website for commentary. But it says that, first of all, the person I appoint will be eminently qualified, an independent mind, rigorous intellect, impeccable credentials. Second -- this is interesting -- someone who recognizes the limits of the judiciary's role, who understands that a judge's job is to interpret the law, not make the law. That's a phrase you often hear from Republican presidents.

  • 10:25:52

    ROSENPresident Obama has been a defender of progressive judicial restraint. In his book, "The Audacity of Hope," he criticizes the Warren Court for short-circuiting political debates. So he says here, I seek judges who approach decisions without any particular ideology or agenda but rather a commitment to impartial justice.

  • 10:26:09

    ROSENBut here's the most interesting part. He says, I'm mindful, there are cases that will reach the court in which the law is not clear. The third quality I seek is a keen understanding that justice is not about abstract legal theory, nor some footnote in a dusty casebook. It's the kind of life experience earned outside the classroom, in a courtroom, experience that suggests he or she views the law not only as an intellectual exercise but also grasps the way it affects the daily reality of people's lives in a big, complicated democracy and rapidly changing times. How interesting.

  • 10:26:36

    ROSENYou know, he -- President Obama seems frustrated with the fact that all of the current justices are former appellate judges, with the exception of Justice Kagan, former dean of Harvard Law School. In choosing Justice Sotomayor, he talked about her appreciation for the effect of decisions on the real world. Several commentators have called on him to appoint a politician, noting that the court that decided Brown versus Board of Education had a majority of politicians and not former appellate judges. So, in that sense, the -- that might suggest that the Sandoval trial balloon, as my colleagues have so well described it, isn't purely hypothetical, that he really is looking for politicians who might plausibly have a sense of getting confirmed.

  • 10:27:18

    ROSENAll that said, given the huge stakes on him to get a reliable liberal and the fact that he may bet that in the end his nominee is not going to get a hearing, that may be an incentive not to compromise on a Republican, but to really pick someone he thinks would be the best voice of liberal judicial...

  • 10:27:35

    TOTENBERGYou know, that description in Obama's post at SCOTUS blog is very consistent with what he said at every turn about his nominees to the Supreme Court, with one distinct difference. He didn't use the word empathy, which has been, I think, banned from the White House lexicon forever. So this was -- is a way to seek to describe empathy without using the word empathy.

  • 10:28:05

    LAKSHMANANWell, you know, the interesting thing about Sandoval, which, you know, Jeff was sort of touching at, is this notion of diversity. The idea of a politician would be something different on the court. But I want to ask you, Nina, the president has been walking around with this thick binder, supposedly full of information on possible candidates. Is this a binder full of women and minority and judges? And how important is diversity for this point? I mean, there are many different kinds of diversity. There's also diversity, not just East Coast, you know, ivy league law schools. There are different kinds of diversity.

  • 10:28:37

    TOTENBERGThere are all kinds of diversity. And, you know, politically, the smart thing to do is to -- I suppose, if you're looking at this in cold, political terms and not in -- having anything to do with the Supreme Court, per se, you would say, okay, these people are going to block me. I want to galvanize my base for the presidential election. I want to name a minority, somebody who's eminently qualified, who they can't attack too much as being soft on law and order, somebody with some real experience in the legal system, but who's black, Hispanic, female, who will really galvanize my base for the next person running in November on the Democratic side.

  • 10:29:25

    TOTENBERGAnd these are all judgments that he's going to have to make, whether he wants to roll the dice for that, use it for political purposes, as well as somebody who really represents what he thinks. Or if he's willing to compromise with Republicans who, at the moment at least, don't seem like their interested in compromise.

  • 10:29:44

    LAKSHMANANAnd the Brian Sandoval trial balloon has been also compared to naming Jon Huntsman as the Ambassador to China. You know, taking a popular Republican governor, taking him sort of out of the field and putting him out there, someone who's hard for Republicans to say no to. But, Jim, I want to know, you know, Republicans have vowed to block the president on a number of things. They want to block his plan to close Guantanamo. They want to stop a vote on the authorization for use of force against ISIS. They've even said they're not going to have the annual meeting to hear about the president's budget.

  • 10:30:18

    LAKSHMANANBut yet not every Republican in the Senate, you referred to earlier, agrees with this decision. So tell us about who's leaving the door open and what might happen.

  • 10:30:27

    THURBERWell, let's talk about the Senate generally and the polarization that's going on. There are very few people in the middle anymore that vote together. In the 1970s, there were about a third of the Senate Republicans and Democrats voted together. Now it's 4 percent. It's so polarized they can't get anything done. That's behind this gridlock that's going on. It's surprising that they allow -- they've allowed the gridlock to go into this judicial appointment though. On these other elements, I think the American people are pretty upset. Some are upset that it's doing too much. Many people are upset that they're doing nothing. Congress is at the 12 to 14 percent level in terms of people thinking it's doing a good or outstanding job. That's...

  • 10:31:13

    LAKSHMANANNot so high.

  • 10:31:14

    THURBERNo. That's the background of all of this. I think there will be consequences for the Republicans, negative consequences for the Republicans if they continue to not consider a nominee. To do it even before they even hear who the nominee is, again, unprecedented. And I think there's going to be political consequences for it. There are moderates. There have been several pieces of legislation in the last Congress -- last session. About 15 where they came together on a variety of issues, like education and other things. But I think on this it's going to show the American public that they're unwilling to compromise. And that's a comment on whether they can govern or not in the future.

  • 10:32:00

    LAKSHMANANSo Susan Collins, a moderate Republican of Maine, Mark Kirk, a Republican, not so many would call him moderate, of Illinois, but in a tough possible reelection battle, among those who've said that they're not necessarily going to be definitely against hearing from anyone the president has to talk about. I'm Indira Lakshmanan and you're listening to "The Diane Rehm Show." Jeff, of course, this isn't the first time that Congress has used the court as a political football. Many of us are old enough to remember the fight over Justice Robert Bork, nominated by President Ronald Reagan. What's the history of this?

  • 10:32:35

    ROSENWell, I sure remember it. I had the incredible job of being an intern for Senator Biden back during the Bork hearings.

  • 10:32:45

    LAKSHMANANThat's an inside story.

  • 10:32:45

    ROSENThat's what turned me on to the whole Constitution. It was the most exciting time imaginable.

  • 10:32:49


  • 10:32:50

    ROSENAnd many people date the Bork hearings to the mobilization of interest groups on both sides of the aisle and the existence of a permanent campaign over the court that's just gotten more and more polarized and led to this state of affairs. But there is a longer history of rejected nominees. Here I've got the Congressional Research Service stats. The Congressional Research Service reports that opposition to the nominating president played a role in 16 of the 34 nominations that were not confirmed. There have been 34 failed nominations over the course of American history. Many of the 16 were put forward by the presidents in the last year of their presidency, 7 after the successor president had been elected, making them true lame ducks.

  • 10:33:33

    ROSENThe lame-duck nominations were 19th century presidencies. That was a longer period, from early November until early March. But some of them were incredible. You know, we -- law students all know the story of Marbury versus Madison, where President Adams literally stays up all night signing commissions for judges before Jefferson can take office the next day. One of the commissions isn't delivered and that gives rise to the most famous case in American history. So the idea of presidents not only after the election, but literally in the final days of their presidency making nominations has been the case. Generally they've not been successful -- or the unsuccessful ones have tended to be these lame-duck nominees.

  • 10:34:16

    ROSENBut as Nina said earlier, that there is no precedent of not having a hearing at all. But I -- the bottom line, now just thinking back to those remarkable days -- well, you know, here's one thing I can share from those times. Senator Biden is justly proud of the speech he made during the Bork hearings where he argued that the Senate had the authority to consider the political philosophy, the constitutional philosophy, the ideology of nominees in considering a nomination. And at the time, that was an unusual view. Previously, the view was you just looked at qualifications and looked at what the American Bar Association said.

  • 10:34:52

    ROSENBut Senator Biden looked in to the history of the Advice and Consent Clause. He made a very scholarly case that throughout American history, the ideology of nominees has been taken in to account. And this history that -- from the Congressional Research Service vindicates that. So all that is to say that, starting with Bork, it became acceptable for senators openly to consider ideology in casting their votes. It's become more and more extreme. And now we're at the state of (unintelligible)

  • 10:35:17

    LAKSHMANANBut it was always something that was taken into consideration, even if it wasn't so public.

  • 10:35:20

    TOTENBERGWell, there was a period...

  • 10:35:21

    ROSENExactly right.

  • 10:35:22

    TOTENBERGThere was a period after Roosevelt tried to pack the court and got shot down by the Senate. There was a period after that...

  • 10:35:28


  • 10:35:29

    TOTENBERGFDR. There was a period after that, from I guess the mid-'30s up through the '70s, where -- with the exception of opposition to Thurgood Marshall, because he was the first African-American nominee and we had Dixiecrats in those days -- what people -- what Senators considered really was just qualifications. We had recess appointments of Chief Justice Warren and Justice Brennan. That would be unthinkable today. It would cause a war.

  • 10:36:03

    LAKSHMANANTwo of the justices who went on to become two of the most famous justices of the last century.

  • 10:36:07

    TOTENBERGLiberal justices named by President Eisenhower. And in neither case did he think, I think, that he was naming a liberal justice. But it turned out to be, you know, that -- if you've made a recess appointment today, it would cause a war on Capitol Hill. There's be blood on the floor. And it's not just today. It would have been that way 15, 20 years ago too. So times are very different today than they were for I'd say maybe 40 years.

  • 10:36:33

    LAKSHMANANJim, you wanted to jump in really quick.

  • 10:36:34

    THURBERYeah. Just a small point. The Republicans are calling Barack Obama a lame-duck president. He is not technically a lame-duck president. It is after an election. And we're a long ways away from that election.

  • 10:36:45

    LAKSHMANANThat's right. Lame duck means after November.

  • 10:36:47

    THURBERYeah, after. And so he's not a lame-duck president, although they're trying to reframe this in a way to make him seem like one.

  • 10:36:54

    LAKSHMANANQuickly, before we go to our break, there's an email from Jake asking, why are the Republicans afraid of simply voting on a nominee? They can always say no in a formal Senate setting.

  • 10:37:05

    TOTENBERGWell, it's for some of the reasons I explained. It can be difficult. And I have to say that Leader McConnell has always been a hardliner on the subject of judges. He's always slow-walked them. He's felt, you know, he, you know, even the NRA didn't used to take a position on judicial nominees very often. He got them into the process. He pressured them to get into the process. They've been in it now for a while. But he was the one who brought them in. And so that's the status quo.

  • 10:37:34

    LAKSHMANANAll right. We're going to take a short break. When we come back, we're going to go to your calls and your questions on the Supreme Court vacancy. Stay with us.

  • 10:40:01

    LAKSHMANANWelcome back. I'm Indira Lakshmanan, sitting in for Diane Rehm. This hour, we're talking about the vacancy on the Supreme Court and its implications, both political and judicial. If you want to reach out to us, you can call us on 1-800-433-8850. Send us an email at You can send us a tweet to @drshow or reach us on Facebook. And in fact, I think we will go to an email from Clara now, who is asking the same questions some others are.

  • 10:40:31

    LAKSHMANANShe's saying, would Sandra Day O'Connor be a possibility for this vacancy? Is there a precedent for re-appointing a justice? Does anyone know?

  • 10:40:40

    TOTENBERGNo. Well, there is, but Taft came in and out, right?

  • 10:40:46


  • 10:40:48

    TOTENBERGAnd Hughes.

  • 10:40:48

    ROSEN...was on the court as an Associate Justice, resigned and was reappointed as Chief.

  • 10:40:50

    TOTENBERGBut he wasn't in his mid-80s or late 80s.

  • 10:40:52

    ROSENNo, that's right.

  • 10:40:53

    TOTENBERGHe wasn't in his mid to late 80s.

  • 10:40:53

    ROSENThat's very true.

  • 10:40:55

    TOTENBERGAnd, and, and, you know, that's not going to happen.

  • 10:40:58

    LAKSHMANANAll right, all right, well I think...

  • 10:40:59

    ROSENOf course, she'd be great.

  • 10:41:00

    LAKSHMANANWell, I think she was looking for someone, I guess, who would be acceptable to Republicans and Democrats alike. All right Nina, let's talk about what happens at the Supreme Court. What's on its docket for the remainder of this term? If you only have eight justices, does this favor the liberals or the conservatives? Or are we going to end up with some sort of deadlock?

  • 10:41:18

    TOTENBERGThis is a little bit of a long answer, but let me start with Justice Alito, who appeared at Georgetown yesterday or the day before. And, you know, I've often said that the Supreme Court is a little bit like a dysfunctional marriage where there's no divorce possible.

  • 10:41:37


  • 10:41:37

    TOTENBERGBut, but it is a family analogy. And Scalia was such an enormous part of the chemistry of the court. And Scalia said, you know, people asked him, what about the docket? And he said, well, you know, we'll manage. And I don't think he was thinking in long term, because here we're talking about a potential vacancy of a term and a half. If you assume that nobody gets confirmed by the time of the election, then the next President would have to name somebody after January, would have to pick somebody, get that person vetted.

  • 10:42:13

    TOTENBERGThat person would not be confirmed in all likelihood until the Court has finished hearing cases in that term. The next term.

  • 10:42:20

    LAKSHMANANSo, we're talking about a term and a half with possibly no ninth Justice.

  • 10:42:23

    TOTENBERGYep. Right.

  • 10:42:24

    LAKSHMANANPossibly until March or April of next year. Is that right?

  • 10:42:26

    TOTENBERGWell, probably June, for all practical purposes, because the person might be sworn in, but the cases would already have been heard, so that person wouldn't vote on those cases. So, there are, this is what I call a gonzo term, or did call a gonzo term. It has a lot of very big cases, some of them may be decided by five to three or even more lopsided votes. Others will be deadlocked, and they will either be, technically, they will be affirmed by an equally divided court. Meaning that the lower court decision stands for now, until the Court takes up the issue again.

  • 10:43:05

    TOTENBERGBut only in that region of the country. Or, perhaps they'll put it over for re-argument. But I don't know how you put something over for re-argument if you really think there's not going to be another Justice to fill that seat. You're talking about re-argument two terms from now, not one term from now. It's complicated. There are some cases that, perhaps, they could get out of on technical grounds. But there's a big immigration case, there's a big abortion case, there's a case about whether religious affiliated institutions that are not themselves churches have to provide -- have to sign a one page form.

  • 10:43:51

    TOTENBERGThat says it would violate our religious beliefs to provide birth control under our insurance for employees who are not of our faith. And there are challengers who say that is -- that violates our faith to even sign the form. Now, I think there are eight lower courts, appeals courts that have ruled on this issue. Seven of them have gone the way of the administration, so in seven, those seven areas, if it were affirmed by an equally divided court, this is an example.

  • 10:44:25

    TOTENBERGIn seven areas of the country, those institutions would have to sign the form. In one area of the country, they would not have to sign the form. But it's entirely possible that the court could come to a conclusion on that case. It's not a 4-4 tie. So, the one case that I think really, very clearly, is stuck, is a case about union dues. And it was so -- there were five Justices so clearly hostile to unions when that case was argued. Now there are only four, and there were four Justices who said, look, we've been doing it this way for 40 years.

  • 10:45:05

    TOTENBERGWhy do you want to change it? That could be a 4-4 tie and have to be decided sometime down the line.

  • 10:45:11

    LAKSHMANANSo, if there are 4-4 ties, it means that the lower court decision will stand, but only in that region of the country. Of course, there could be cases being set aside, but as you say, if they set them aside for re-argument, that could be not just one term down the line, but two terms down the line. Jeff, tell us what about Justice Roberts? What is he going to be doing to try to avoid an impasse at the Court? Isn't he going to try to be the deal maker, the man who makes sure that, you know, lobbies people over to make sure there are narrow decisions?

  • 10:45:41

    ROSENWell, this is where Chief Justice Roberts' leadership skills will really come to the fore. When he took office, he pledged to try to persuade his colleagues to converge around narrow, technical unanimous decisions to avoid contentious, Constitutional splits. He feels very concerned about the polarization of the Court and the perception that it's being seen as a political football. He no doubt noted the recent gallop poll saying that the Court's disapproval rating had reached 50 percent for the first time in decades.

  • 10:46:10

    ROSENSo, he will be looking for a way to avoid the kind of 4-4 splits that Nina well described, that would affirm the divided court. Now, he may be moved by a very interesting law review article that Adam Liptak, the New York Times, is superb, Supreme Court reporter just called our attention to. And it's called appropriately enough, tie votes in the Supreme Court. So, listeners who want the best history of this can Google Tie Votes in the Supreme Court. It's by Professor Justin Pidot at the University of Denver.

  • 10:46:38

    ROSENAnd basically, Pidot studies all of the 4-4 ties from 1925 to 2015, and he says that in almost all of these cases, when a case ends in a tie, the issue involved is either presented to the Supreme Court again in relatively short order or turns out to be of little significance. So in other words, historically, when those 4-4 ties happens, the case has come back. Pidot suggests that the right solution is the third one that Nina pointed to and that's that the court should dismiss cases as improvidently granted.

  • 10:47:09

    ROSENIn other words, it should just get rid of the case. They'll say, we're not going to decide it now or until we have a full complement of Justices. Because that would avoid these tie votes.

  • 10:47:18

    LAKSHMANANSo that's kicking the can down the road a little bit.

  • 10:47:20

    ROSENAnd -- kicking the can down the road. It can only do that one of 164 cases that were tied in American history where ones that the Supreme Court would have to hear under, what's called mandatory jurisdiction. So it has the discretion to do that. And you think of Chief Justice Roberts with that extraordinarily statesman like vote in the Affordable Care Act case, concerned more about the legitimacy of the court than the ideology. Particularly Justices. He may well be moved by the desire to avoid a totally partisan appearance.

  • 10:47:48

    ROSENPlenty of Justices have endorsed this vision. Louis Brandeis my hero, said better that a case be decided than it be decided right. So I would -- dismissing these cases is definitely an option for Roberts.

  • 10:47:58

    TOTENBERGBut you know what you call that? You call that digging a case, dismissed as improvidently granted. And you can certainly do it a couple of times. I don't think you can keep doing that for almost two years.

  • 10:48:07

    LAKSHMANANYeah. Okay, all right, well, let's turn to our listeners. Ginny in Indiana says, the Republicans are not representing the American people. They are usurping democracy. Their vitriol to the President is unprecedented. I think there's a racial element. And Keith in Washington, D.C., on the other hand, says if the shoe were on the other foot, Democrats would be doing the same thing. There's no point in getting all spun up about what's happened in the past.

  • 10:48:33

    LAKSHMANANAll right, let's go to the phones. Anne in Seiling, Oklahoma. Anne, you're on the line.

  • 10:48:38

    ANNEThank you. Very good program.

  • 10:48:42

    LAKSHMANANThank you.

  • 10:48:42

    ANNEJust last night, I wrote to my Oklahoma Senators and also Senator Grassley, Senator McConnell, and Senator Leahy to voice my opinion that it's irresponsible not to consider a Presidential nominee to the Supreme Court. The President has an 11 month term left. As you all just said, there are basically two court cycles are affected by this vacancy. And I also told them while I don't expect Republicans to represent my exact viewpoints, and here in Oklahoma, I'm in the minority, I do depend on them to do their Constitutional duty.

  • 10:49:24

    LAKSHMANANAll right, well thank you very much, Anne. Jim, you know, the caller brings up a point that actually makes me wonder. With very slim chances for a ninth Justice in the next year, are we headed for some sort of Constitutional crisis?

  • 10:49:39

    THURBERWell, let's comment on her position and point out that there have been four surveys that have been reported so far. And there's a slight, just a slight majority that feel that the President should go forward with a nomination. Now, as this battle goes forward, that that may shift in political attitudes. But again, I think this is going to have a consequence for the election. It's going to look like they're not doing their job. I know that's the narrative of the Democrats, but it's pretty effective.

  • 10:50:10

    THURBERWill there be a crisis? I don't think there will be a Constitutional crisis, but I think it will be serious politically. The -- remember that the Senate has about five, six Republicans that are in competitive races right now. They're tossups. Only one for the Democrats. If they switch five seats in this election, the Democrats take over the majority. Some of these people are from very moderate places like Kirk in Illinois and Portman in Ohio. And Johnson in Wisconsin. Places where I think the public will be like Anne in Oklahoma and be concerned about this.

  • 10:50:49

    LAKSHMANANAll right. Nina, I want to go back to what's actually on the docket. Tell us about the abortion case that is going to be heard next week and the possible outcome.

  • 10:51:00

    TOTENBERGWell, the Supreme Court has said repeatedly in the last several decades, it's modified Roe v. Wade, to say that states do have an interest in fetal life. But it has said that the states may not impose an undue burden on a woman's right to terminate a pregnancy. Texas has a law that's duplicated in many respects in, I think, 13 other states already. And it -- under that law, it makes it, it makes all abortions be done in clinics that are built like mini-hospitals. It's very expensive. It means that the vast majority of clinics would have to close.

  • 10:51:41

    TOTENBERGIt would cost each one of them millions of dollars to change their whole structure. And it also requires doctors to have privileges at a hospital within 30 miles of the clinic. These days, many doctors don't have hospital privileges. And getting them is a difficult, if not politically difficult, sometimes, thing. But you have to have a certain number of patients that are in the hospital and they don't have that in the clinics. So, the question is, are these provisions, which were enacted to, ostensibly, to protect the safety of women. Are they an undue burden on a woman's right to choose? In Texas, it would probably close a total of three quarters of the clinics.

  • 10:52:22

    LAKSHMANANAnd the likely outcome at the Court?

  • 10:52:24

    TOTENBERGWe don't know. Justice Kennedy, as is often the case, is the swing vote. If he thinks it's an undue burden, it would be a 5-3 decision. If he doesn’t think it's an undue burden, it would be a 4-4 tie.

  • 10:52:34

    LAKSHMANANAnd then that means those clinics would have to close down in Texas because that's what the lower court has said.

  • 10:52:38

    TOTENBERGThat's right.

  • 10:52:39

    LAKSHMANANI'm Indira Lakshmanan and you're listening to The Diane Rehm Show. All right, let's go back to the calls quickly. Derrick, in Manassas, you're on the line. Go ahead.

  • 10:52:47

    DERRICKHi, yeah. Thanks. I think people have to look at why this has become such a big issue. And it really is a couple of things. One is just amazingly increasing court activism since, really, the 1930s. Number two is Congress really adjudicating its role in writing clear legislation. And I've been a lawyer for 30 years and it just saddens me to hear your panel. It's almost all talk about politics and nothing talking about legal theory, interpreting the law, and your one guest indicated that Roberts gave a very statesman like decision.

  • 10:53:27

    DERRICKI mean, give me a break. When you have all of the people passing the legislation saying it's a penalty, not a tax, and on the day after the law is passed, in briefs, the Obama administration switches it and saying, oh, it's a tax, not a penalty. I mean, what's happened here is the public needs to be educated about what the real role of the Court is. And I'm always amazed when I tell my friends, do you know how desegregation -- do you know how the Court rules on desegregation? It was because the wheat in the buns, served in hot dog stand, traveled through interstate commerce.

  • 10:54:09

    LAKSHMANANOkay. All right, thank you very much. Derrick, from Manassas, Virginia. Any comment?

  • 10:54:14

    ROSENYes, indeed. When Chief Justice Roberts cast his tie breaking vote in the Affordable Care Act case, he wasn't voting on the basis of politics. He was understanding, as the greatest Chief Justices have, that there are plausible Constitutional arguments on all sides of most contested questions. He embraced a theory that he believed in, that was consistent with his previous thoughts and the idea that you should, that there's a difference between statutory interpretation where Roberts says you should look at the intention of the people who passed the law.

  • 10:54:42

    ROSENAnd Constitutional interpretation where congressional statements make -- have less of a bearing on a Constitutional conclusion, is a plausible legal theory. But what I like so much about the caller's request is, people need to educate themselves not only about the politics, and it's important to note, the confirmation process is where politics and the Constitution converge. We shouldn't be embarrassed by the fact that we're talking about politics. Because that's the framers intended that this was the time for the political branches, really, to have their say.

  • 10:55:09

    ROSENAt the same time, it's important to consider the Constitutional arguments in these cases, and the best place to do that, plug alert, is in the National Constitution Center's phenomenal bipartisan podcast, which (unintelligible) every week to discuss the Constitution.

  • 10:55:21

    LAKSHMANANAll right, Jeff, before we run out of time, very quickly, give us just a 30 second summary of the Affirmative Action case before the Court and how it might get settled.

  • 10:55:31

    ROSENThis is Fisher versus University of Texas. The Court is deciding whether this program that admits students to Texas of Austin using race as a factor violates the Equal Protection Clause. It could be narrow, because this is an unusual plan, or it could be broad. Justice Caden was already recused, so without Justice Scalia, the case is decided by seven members of the Court. And it could tie or it could narrowly be decided for Texas or it could be dismissed.

  • 10:55:56

    LAKSHMANANOkay. Jim, assuming that he gets blocked in the Senate, if he even puts a name forward, can Obama make a recess appointment? We've gotten this question on Twitter.

  • 10:56:06

    THURBERYes, he can. That's the answer. The problem with this situation is the contagion of polarization from the Senate is spreading into this, but there's polarization in lower courts also. I'll plug my book, "American Gridlock," Cambridge University Press just came out and we look at this polarization of the courts, the state legislatures, the voters, but especially in the Senate and it's spreading now into this process.

  • 10:56:34

    LAKSHMANANSo he could make a recess appointment, as long as the Senate doesn't keep, starting sessions to prevent him...

  • 10:56:38


  • 10:56:38

    LAKSHMANAN...from having a recess.

  • 10:56:40


  • 10:56:40

    LAKSHMANANAll right, Nina, with the short time we have left, what is the timeline for Obama naming a nominee, and if you were a bookmaker, who would you put your odds on?

  • 10:56:47

    TOTENBERGI don't do that. It's only a way to make myself look stupid. I would say in the next few weeks, he will name somebody, because he doesn't want to make it go too long. On the other hand, he wants to make sure that all the Is are dotted and the Ts crossed. But if there's no confirmation hearing, you don't have to worry about that quite as much. But, he has to keep in mind that if he picks a really distinguished person who looks great, the next President, if he or she is a Democrat, might want to re-nominate that individual.

  • 10:57:17

    LAKSHMANANSo that person can be re-nominated? You've answered a question we got from Twitter. Thank you. We will be listening to your reports and staying tuned to find out the answers. Nina Totenberg, Legal Affairs Correspondent from NPR. Also joining me, James Thurber, Director of the Center for Congressional Studies at American University. And Jeff Rosen of the National Constitution Center. Thanks to all three of you for joining me. Thank you to all the listeners for tuning in. And I'm Indira Lakshmanan. You're listening to the Diane Rehm Show.

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