Constitution . First of all, i think that its improper to even be considering a nominee right now when we are in the middle of an election. Not just an election year, the election is happening right now with half a million ballots already cast in early voting states. Not to mention that we are in the middle of the pandemic and the senate is taking away an important time that should be devoted to dealing with those virgin, crucial issues in these next five weeks. Aside, i thinkt theres a real legitimacy question when you have the public voting right now for the president and the senate, the folks thatof the deal with nomination and confirmation of a Supreme Court justice, and if there is a lack of public space in the way that process works, there is going to be a crisis of legitimacy for ae Supreme Court it relies on really public believe in its legitimacy in order for its ruling to be voluntarily and sometimes for grudgingly, but still happily followed. Guest it gives me great concern ,ow she would be on the court these judges and justices on the bench will follow the including the majestic promises of equality and justice put into the constitution particularly in the amendments after the civil war. A justice who would follow those regardless of her political preferences and we have seen rulings has questioned from the Supreme Court, repeatedly upholding the of portable care act, which is more important to americans than ever with so many getting sick. Also on the question of quality and reproductive freedom, she has called roe v. Wade an erroneous decision and that is incredibly concerning to the millions of us who need to make sure that we have control over the destinies of our lives and over our own bodies. Adding to that all the other concerning aspects of record regarding life for immigrants, lgbtq plus americans, putting the interests of big business over those of Everyday Americans, im extremely concerned about her record, not to mention being extraordinarily concerned as a citizen, as a constitutional lawyer about the legitimacy of putting her on the bench right now. Host her record has usually come from her writings in law school and an educator. As a judge, has she done anything that would suggest she would indeed up and these things upend these things . Guest so she has been on the court for about three years, i think that is why you see a look to her public statements and writing from before she was on the bench. Hastime on the bench, she been mostly defense or issues sesated to hearings of ca signaled a willingness to let abortion restrictions going to place. Issues related to notification of parents even after a court has determined that a minor is sufficiently able to make those decisions for themselves. And there are also issues immigrants, the idea that you would send someone back to a country where they are going to face clear persecution, issues related to what is known as the public charge rule, the idea that we shouldnt grant relief to immigrants who are here trying to find a better life, trying to find safety for themselves and their families if there is a chance he might need public assistance. There are definitely things that are concerning about her rulings in addition to the statements she has made and i would just say that one thing that i think applies incredibly strongly here is the concern for President Trumps litmus test recent he would only nominate some of the Supreme Court if they would be willing to come in his words, automatically overturn roe v. Wade, someone who would be willing to strike down the portable care act, and he would only vote for someone who would only strike down roe v. Wade, and he said that he will support judge amy coney barrett. So putting all those things together, people who care about the Affordable Care act and the protections for those of us with preexisting conditions, people who care about ensuring that roe v. Wade remains law, that people are able to make decisions for themselves and their bodies along with their families, their god, their doctor, and not have them decide that for them, in addition to a whole host of other concerns about the constitutional guarantees for equality and justice, absolutely there is cause to be concerned both based on her record on the before, andshe said what trump has made absolutely clear that he would do when it comes to nominating someone to the Supreme Court. Host you can talk to our guest and ask her questions by calling the line 202 7488000 for democrats, 202 7488001 for republicans, and 202 7488002 for independents. To that last point, before we go to calls, do you think there is an appetite for the court to actually engage in cases that would consider those previous cases undecided . Guest absolutely. Are beginning to look at the president s Campaign Rhetoric on these issues. He has repeatedly talked about the need to also, i didnt even mention the gun issue. The Supreme Court even with Justice Scalia have, while recognizing that there is an individual right to have a gun in the home for selfdefense, have made clear that there is not necessarily a constitutional right to have a gun anywhere you want at any time you want and have that gun be obtained by anyone who wants one. And yet, weve seen the president say over and over about how even that sensible gun rights regulation is something that he does not want to see upheld by the Supreme Court, in fact, he would expand the Second Amendment rights from where they are even now with Justice Scalia. Certainly, over and over again, as i said that test on roe v. Wade, and so i think trump is saying to his voters, he must certainly think there is an appetite. I must say that the majority of americans support maintaining roe v. Wade, they certainly support and embrace the important protections of the Affordable Care act that we use so much right now during these troubling and uncertain times. Host we will start with chuck in georgia, republican line, you are on with our guest, go ahead. Caller good morning. Guest good morning. If the roles were reversed, and dont lie, if the roles were reversed, if democrats had the presidency and the senate, they would put a judge on the court in two days. And another thing, if biden wasnt so scared about who he would nominate, he would tell us who he would nominate to put on the court. Why is he afraid to do that . Guest yes, thank you for those questions. Ill start with your last question first. Former Vice President biden before he was Vice President , was on the Senate Judiciary committee and i think kind of an bodies, in some ways, antibodies in some ways embodies, in some ways, the old days of senate Supreme Court nominations. There is some hesitancy by some folks and i can see both sides of this, that putting out a list improperly politicizes the Supreme Court and a lot of people believe that politicizing the Supreme Court is a very bad thing for the legitimacy of the Supreme Court which is supposed to be a nonpartisan institution of our government, something that is not just a group of republicans and democrats, but folks who are, we hope, impartial jurists. Is whyrstanding is that biden might be reluctant to put out a list, because it is seen in this election time as unduly politicizing the court. Of course, on the other side, that was a boon to President Trump to put out that list by putting itg it, before the voters for something useful to him. But i think that is why biden has been reluctant to put out a list. Reversed, i amre not a political strategist, on a constitutional lawyer. I think certainly what weve a concerndemocrats is about the legitimacy of the Supreme Court, there is voting going on right now. While the roles were not currently reversed in 2016 when president obama nominated Merrick Garland after the passing of Justice Scalia in february of an election year, for several months, many months before the beginning of the election as opposed to now where we are in the middle of the election early voting, just a few weeks away from the culmination of that election, mitch mcconnell, who ran the senate then and runs the senate now certainly did not even give Merrick Garland a hearing, much less a vote, much less confirm him to the Supreme Court. One thing that we do want regardless of party is to see that consistent standards are applied when it comes to the Supreme Court, even in an admittedly political aspect of the Supreme Court, which is the confirmation. The nomination and confirmation of a Supreme Court justice are done by political actors under the constitution, but the court itself and justices themselves are supposed to be above politics. And so when you have Something Like the difference in 2016 with Merrick Garland compared to now, i really feel that we risk the public seeing the court as subject to political power grabs in a way that i think does undermine the legitimacy of the court. Pine bluff arkansas, independent line, dorothy, up next. Caller yes, i will be voting for joe biden but im disappointed that they did not wait till after the election to choose a nominee for the court because it is only fair that they follow the same president they followed last time. My concern is the Affordable Care act and how the voting be on this court . Wondering, since this judge is just coming on, she should recuse herself from the voting, because she is just coming on the bench. Those are interesting questions. One thing that i think not enough of the public knows is that while there are rules about recusal, explicit rules that apply to lower court judges, there actually are not rules that bind Supreme Court justices. We kind of rely on them to selfpolice. Matt is one reform of many that has been talked about, that is one that i dont think its enough attention. I actually think if she were to be confirmed, i think it would be highly unlikely that she would recuse herself based on statements she has made about the Affordable Care act. Usually, justices only recuse if they have been explicitly involved in a case or have a financial interest or a strong personal interest in the case. But youre absolutely right to be concerned about that. The repeatedioned rulings by the Supreme Court that have upheld the constitutionality of the Affordable Care act, and statedPresident Trumps desires to have the affordable seeking toerturned, have the law invalidated, i think youre actually right to be concerned. Host pennsylvania, republican line, hi. Sorry about that, go ahead with your question or comment. Caller ok. I question is, as far as the justice, itthe seems that, would you want somebody who goes by the constitution, or just Party Politics . What they want . I absolutely want someone to follow the constitution. What i want is someone followed before constitution. Not just the way it was as it existed in 1789 when we still had a wonderful constitutional democracy established by our constitution, but still a constitution that was deeply flawed because it allowed the original senate slavery to continue in this country, it allowed for women and people of color and so many more to be excluded from our Democratic Society and excluded from equal citizenship. I really want a justice who will follow the whole constitution, the constitution as it has been amended over time. To make it more equal, to make it more inclusive, to make our society truly freer. The thing that i can concerned about with socalled conservative originalists is that they often overlook these amended guarantees of the quality and justice that came through i say amended because they came through in the amendments to the constitution, the 14th, the 13th, the 19th which we celebrated the centennial of which gave women more meaningful equal citizenship in this country. The poll tax amendment which ensure that no one will be denied the right to vote because they cant pay a fee or a fine before going to the ballot box. What i am concerned about with cody barrett becoming justice is that im not sure that she embraces that constitution regardless of where it leads, even when it might support outcomes that are different from her policy agenda. We certainly have not seen President Trump, who has nominated her, respect those guarantees of equality and justice for all, and perhaps most on my mind right now, in the election season, does not willing to respect the constitutional guarantees of free and open Democratic Society and rule of law. Given all of that, i am deeply concerned that she would not theythe constitution when lead to outcomes that for making sure that the interest of Everyday Americans are respected over those of the powerful, that when it comes to equality and truly having meaningful equality, they can make decisions about their own bodies. I am deeply concerned about that. Host max is in california, democrat line. Morning, longtime listener, 67yearold democrat, been voting for years. What this is is highstakes politics. If my Democratic Party was in power, even though mitch blocked s would garland, the dem do exactly the same thing. We were banking probably on hillary winning last time, so they werent worried about it, and trump won. I wasnt happy, but he won, i think he is bully in chief. On this issue, the dems rolled the dice and they lost. Ruth, may she rest in peace, tried to make it to the finish got her before the next president was elected. Dems took a gamble, they could have replaced her. I think she was getting sick, probably did not know how sick when obama was in. Circumstances were different, but we rolled the dice for the party, we would do the same thing and i would love to have coffee with that republican n who called first on this issue because the Supreme Court and about the list, i agree with that gentleman. About the list, it is great to see a list as a dem, we want to see who they are going to elect. God bless america and get out and vote. Host ok, thanks. Guest amen on the getting out and voting for everybody. I think that a lot of people do share your sentiments about wanting to see a list. Is some legitimate concern about politicizing the court but at the same time, i do think there are people who would like to see a potential list of biden andcandidate there have been Many Organizations that have been, or i should say, there have been some organizations that have put out lists for Vice President biden to consider and he has said that he would name an africanamerican woman to the Supreme Court. Some of the list that has put out by organizations show there is an extraordinary wealth of talent coming up through the pipeline of both academia, the judiciary civil rights work of those who work in the criminal justice, trying to make sure that criminal justice is more just. You might want to look at some if therelists and see is anyone you would like your candidate to support. I think that Justice Ruth Bader ginsburg was so wise on the wishesnd one of her last was told by her granddaughter that she not be replaced on the Supreme Court until the conclusion of the election and that a replacement be named by whoever is elected, whether it is President Trump or Vice President biden. She served that court so long and so well that she knew, and i agree with her, that putting someone on the bench right now, as the people are having their say about who should be in the white house and who should serve in the senate, would undermine the credibility and legitimacy of the court and make it seem like it is just another political power grab and i totally hear you that it seems like you are saying it is a political power grab. Maybe because im a Supreme Court lawyer and someone who cares deeply about the constitution here im not quite willing to give up the legitimacy of the Supreme Court and the idea that it should be something that once you are on that bench and you put on that your fidelity is to the constitution and it is not just another partisan institution. Host the idea of a polymerization politicalization, is that something you would like to see, or not . Guest i dont like the idea when it is put forth, that kind of political vengeance. But i do think it is something that perhaps should be considered if it would enhance the legitimacy of the Supreme Court. We are not just talking about seat, but i this think a lot of people were deeply bothered by the way president obamas nominee Merrick Garland was treated. They considered just as gorsuch who replaced him as perhaps sitting in an illegitimate see. Of course, a lot of people were concerned by the process of Justice Kavanaughs nomination. I think when you put that together, if there is this crisis of confidence in the Supreme Court, perhaps expanding it to enhance the legitimacy in the publics eyes is something to think about. The constitution does not specify a certain number of justices so if it would enhance the public, that is something ive look at. A lotd just caution that of people dont know which party they are going to help in the long run, maybe in the immediate nomineesight put more supported by the left on the court, but we dont know. I think these reforms should really be done when they are in the Public Interest and not just as a political football. Host new york, democrats line, khalid, hello. Caller hello, thank you for taking my call. Something that has not been addressed is the term limit for the justices. Is thereon is, something that can be supported like a constitutional amendment, or can Congress Make a statute to make the terms of the justices . Guest thank you, sir. Guest thank you. That is another reform that has been talked about in addition to expanding the core and while expanding the court through congressional action is something that clearly is constitutional, there has been debate about term limits. List astitution does not term limit specifically but it does talk about justices serving up on good behavior. The idea that they have their and could remove them for not good behavior. Some people talk about getting around that without needing to amend the constitution by having service,go into senior something that we see on the lower courts. Andes will become senior they dont sit as regularly as full members of the court, but they are still judges in an important way. Way to get possible around the potential need to amend the constitution. Host this is our guest, and our next call for her, out in texas, independent line. Caller hello, how are you . Two issues i would like to, i would appreciate from ms. Wydra. Momentarily, if you might define for us or for in the viewing audience right now, if you might define conservative versus liberal in the sense of politics versus in the sense of the judiciary. In a moment, i would like to get thatnd i would like to say with a little bit of honesty a president that just put a Supreme Court nominee at the behest and request of winning the 2016 election to , who also tookt over the senate, and that wasnt good enough for the electors. We added a couple more people to the roles for the conservative side. Host we will let our guest respond to that. We are in the middle of an election right now and there are a lot of people, particularly after the way that the pandemic has been handled by the white house and senate, who might feel very differently about the occupants of those bodies right now. I think that is really the problem. Not that there was an election in 2016 that had certain results, it is that people are voting right now, people are having their say right now, the election will culminate in just a few weeks. That is really the problem with that argument, i think, in this moment right now. Host one more call from diana. Diana in connecticut, republican line. Just about time for the next segment, but go ahead. Caller i just have two things. The president did do a good job on. Number one, i want to know why it is that whenever there is a vote, republicans are the only party to switch with the democrats that the democrats have never switched with republicans and also, ginsburg two years ago said i do not vote my political beliefs, i do not vote by the constitution, i put my political beliefs. Again, i vote by my political beliefs. Two years ago at the end of the session. She said that along with sotomayor when they were asked why they did not vote like everyone else did. Again, she said i put my political beliefs, i do not vote the constitution. I cannot imagine Justice Ruth Bader ginsburg or Justice Sotomayor your ever saying those anytime come in the privacy of their own home, in the public, i cannot imagine them saying that, i have never heard that before. They are people who follow the constitution. To protect the equality and justice that it guarantees. I would strongly disagree with you on that particular point and certainly there have been instances over time where democrats and republicans have switched to vote for nominees, so i think i disagree with you on pretty much all of the fact that you just put out in your call and i would encourage people to really Pay Attention to the actual fax of what is going on right now with this nomination, because the stakes could not be higher when it comes to things that Americans Care deeply about like health care, like making decisions, like having a court that works for everyone including those of us who are working hard and struggling everyday to make ends the. To make ends meet. Please do watch what was happening with the court in the senate, because it is incredibly important for the future of our country, and honestly, to all of us everyday. Host the u. S. Constitution
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