I had been general counsel to the American Civil Liberties union for several years. Favor. E was 963 in my my biggest supporter on the Judiciary Committee was not senator biden, although he was certainly in my favor, but it was orrin hatch. I think today he would not touch me with a 10 foot pole. [laughter] friends, but if it came to a vote on me, i dont think he would be the supporter he was in 1993. With stephenr breyer when he was nominated the next year. This was well into the 90s, a vote in his favor. Theas not been that way for four most recent members of the court. On both sides of the aisle. I wish there was a way i could wave a magic wand and put it back to when people were andectful of each other congress was working for the good of the country and not just along party lines. Someday there will be great elected representatives who say enough of this nonsense, lets be the kind of legislature the United States should have, and i hope that day will come while i am still alive. Susan ilya, you just published a book on the Supreme Court. We just heard the late Justice Ginsburg, hoping for a day when congress would return to less partisan times. The sameit, under toxic cloud that affects all of our public discourse. How did we get to this point . Wish yeah, i share her that we could wave a magic wand and unwind it. It turns out this is what i wanted to find out in writing a to writeer i set out about the kavanaugh process. George washington had a nominee rejected, the president had to balance regional concerns, then you become a matter of slavery and on and on. What is new is that first of all you have big centralized government in washington over the course of decades. Power has been amassed in the Supreme Court has played a part washington, within a skew away from congress that doesnt resolve controversy so much anymore but hunt it to the administered of agencies and executive branch, which are sued, and it goes to the court as well. Thatportant important decisionmaking process. Differente time, interpretive theories map onto partisan preferences when the parties are more ideologically sorted than at least the civil war, if not ever. Of course theres gonna be a fight every time there is a vacancy for one of these powerful seeds. Seats. Susan one of the downsides is the public increasingly sees the court as a political institution. Is that the right way to look at it . I think it is definitely unfortunately that people see the court as liberals and conservatives, let alone democrats and republicans in the partisan vein. That is the natural result of this dynamic, where if you are an originalist or textual list, view the law as the meaning of the words when they were enacted, you will probably be need by a republican president. , youu are more pragmatic think the meaning of the text changes over time, chances are you have been appointed by a democratic president. Divergenceultimate in different views and methodologies that is causing that. There are no more liberal republicans or conservative democrats. Even though i make it clear, try to make it clear in my book i am not saying the court is a political actor and that is different from saying the process of nominations and confirmation has been and has to be political because of the nature of the dynamic, i think it is unfortunate indeed that people see the court as another political actor i can to congress or race for the white house. Susan before we get into the history you have written about, you are the lead constitutional scholar at the Cato Institute. For viewers and listeners, would you tell people who are the Cato Institute and tell me specifically about your center and what you do there. The countrys largest libertarian think tank. Independent,cally we are generally for limited. Overnment, liberty my center was established over 20 years ago now, over 30 years afterw, about a decade cato itself. It is now 43 years old. We published papers, file amicus briefs from the Supreme Court with the Supreme Court and other courts. We tweet, blog, published papers. My job is a lot of fun, academicg the legal, and media world. Susan i wanted to start with a set of statistics you offered about scotus nominations in general. There have been 164 nominations to the court, including the current one. Of those, 126 were confirmed. Rejected, three postponed and tenant no action. And then the one currently in play with judge Amy Coney Barrett. Let me ask you on the 10 with no action, that is a flashpoint for the current nomination because of no action. Leaderssten to the talking about the process. The American People do not need any more revisionist history lectures, anymore threats, or any more performance outrage from the side that launch and escalated this fight time after time after time. There is one course. It does right by the judiciary, the senate, the yet unnamed nominee, and the American People. It is a fair hearing, a failed part fair process, and a fair vote. Heres how the republican eater described the role in some and confirming Supreme Court justices. He said we have an obligation under the constitution to consider Supreme Court justice should we choose to take advantage of it. Did you catch that . Did you catch that, madam president . It is an obligation but only if the republican leader chooses to take advantage of it. I see when a democrat is president , it is an obligation you dont have to take advantage of. Susan you study the history of nominations. Who has a history right on Election Year nominations . Ilya you can argue it lots of different ways, and politicians being hypocrites on both sides is nothing new either. You talk about a little bit of the statistics. To go more broadly, which Party Controls the senate and white house is the whole ballgame here. That might be obvious but it is a real difference historically. I will get to Election Year and a second, but overall, counting all of those 100 623 nominations we had before judge merrick judge barrett. Confirmation rate is about 90 if they are the same party, and if they are different parties, it dips below 60 . , 19 have been during a United Government and 17 of the 19 have resulted in confirmations. One of the ones that didnt was a technicality with George Washington withdrawing and resubmitting nomination. That got confirmed. With divided government, only one in 10 have gotten confirmed, the last time that happened was 1888. That is thegue major principle and Mitch Mcconnell has been making that point. At the end of the day, these are political arguments. Theres nothing in the law about it, its just making your case to voters that this is kind of judge we want and the people elected us and we will pass it, or let the people have their say. At the end of the day, these are political arguments the voters have to ultimately weigh in on. Susan during the upcoming nomination hearings, people will hear from phrasings regarding the nominee. Tradition and and originalist, are they the same thing . Ilya textualist is statutory. There are several beyond that, except the constitutional interpretation often takes part in a greater historical time and it is harder to get at what the original Public Meeting meaning of what the text might mean. We look at contemporary dictionaries, how the language is used to understand what something might mean. Textualism, it is more modern statutes, the language is very similar to what we use, if not the same. You kind of parse it together in context. Susan they may also hear questions about the phrase natural law. What does that concept mean . Ilya this came up a fair bit with Clarence Thomass confirmation nearly 30 years ago, and it is the idea that there is an underlying principle or substance to the law, natural rights sometimes is invoked as well the rights we have in nature before any human government is formed, inalienable rights given by our creator in the words of the declaration of independence. The natural law is kind of the background on which we legislate , around which the constitution exists. A kind of filling in the gaps, if you will, of the text. Confirmed, judge Amy Coney Barrett would be the fifth female to serve on the court, but the six nominated, Harriet Miers failed. What was the reason for the failure . Ilya she was considered not up to the job at the end of the day. She had trouble in meetings with senators and in the socalled mortar murder board, thats when the nominees practice with white house and Justice Department officials for confirmation hearings and never having in an academic or judge or constitutional lawyer, she was in private practice and close to yours w bush, his personal george w. Bush, his personal lawyer and then white house counsel. She did not have the same kind of background as most modern Supreme Court nominees do. At a certain point, the Bush White House felt she was not up to the job and they pulled her. Susan as we are talking this morning, bear is beginning oneonone meetings with interested senators. In your book, you tell a number of stories about how important to personal introduction senators was for certain nominations. With such a divided congress, do they matter as much . Ilya probably less, especially since the republicans seem to have the votes to from unless something comes out of left field between now and the eventual vote. Maybe with a more moderate democrat, if she can charm them, and she is very graceful and charming, so maybe that might give some bipartisan cover perhaps. At the end of the day, this close to the election with tensions heightened, these meetings are probably less important than they have ever been. Susan she is 48. How does that age put her in the spectrum of appointees . Ilya right around the sweet spot. A little younger than the average. Was 49,gorsuch kavanaugh 52. Thomas was 42, 43 when he joined the court. We have had younger people. She is not exceedingly young. Right around the middle. It means she could serve for 30 years or more. Thats been a big change in the modern era. Before about 1970, the average tenure was under 20 years. Since 1970, is more than 25. Susan her law degree is from notre dame, every other sitting justice is from harvard or yale. When did that trend take place . Ilya very recently. John paul stevens was northwestern and rehnquist was stanford. This kind of professionalization or goldplated credentialing in the Legal Profession, and this is the pinnacle of the Legal Profession, is a fairly recent development. You did notecades, necessarily travel fall, especially to law school, if you wanted to practice in chicago, you went to law school in chicago. Now the law is becoming nationalized and elites in all professions becoming nationalized, there is the skew. Having gone to the university of chicago bosco myself, i think its a breath of a to have some of midwestern experience. Coursethe hearings of will be televised live, streamed live on the internet, followed by social media, blog about and covered in every way. When was the first public confirmation hearing in our history . They were not always. Ilya for most of our history, we did not have them. The first was 1916. We dont have cspan footage, unfortunately, but i would contend it is the most controversial one we have had. People ask me which was the worst weve had, expecting me to choose among kavanaugh, thomas in 1916, the first jewish nominee, and even more controversially, was a social progressive, wanting to reform all sorts of industries, civil rights, a host of areas that made him politically very controversial when he was appointed in that president ial Election Year of 1916 by woodrow wilson. At the time, it was so controversial that they had for the first time a public hearing, but it was seen as unseemly for the nominee to appear. So he did not and the process lasted five months. The longest confirmation weve ever had. The voting margin was broader than some of the more contentious ones recently, but it was very heated. Even more, once he got on the bench, very soon after, Charles Evans hughes, one of his colleagues on the bench resigned, to run against president wilson and the election. If you thought 2020 or 2016 was politically contentious in the terms of the interplay of the presidency and the court, 1916 gives it a run for its money. Susan the first time a nominee appear before a committee and testified, the first time was 1938. What were the circumstances . Ilya felix frankfurter, also happened to be jewish, but i dont think it was that. He was a harvard professor and they wanted to question him more broadly. It did not last very long, and indeed, what we are used to did not really start up until the 1960s and it did not last the four days, either. Another, a hearing was an hour and a half, wherein he testified 15 minutes, largely about his football playing career. Definitely the last justice to have played in the nfl while being a gail law student yale law student. Susan the first televised hearing was Sandra Day Oconnor in 1981. In your final section on reforms to the process, one of the things you suggest is no longer televising the hearings. Why do you suggest that . Ilya that is perhaps an awkward thing to touch upon when talking to cspan, but i think the hearings were a Good Development and broadcasting them was a Good Development, but at this point when everyone knows what will go on, it is at best kabuki and at worst harmful to public discourse. The nominee is coached and trained to talk a lot and not say anything. Justice ginsburg perhaps pioneered that method at her hearings in 1993. The senators, those are of the same party of the president trying to law softballs and making the nominee look good, in the opposing party is either trying to have harsh gotcha questions or just speechifying to have a clip for their advertisements. We dont learn very much about the nominee and we dont learn very much about the law, and all of their paper trails, there judicial opinions and academic writings are Available Online at the end of the day. You could still have a close hearing to discuss the fbi background report, sensitive financial records, those sorts of things they already do in closed session, but the public hearing i think gets us all much and harmsthe muck the process in public more than it benefits. Susan while were talking about access to the court, the Court Announced when they open sessions, october hearings will be made available by telephone as they happen. It is an innovation for the court. Are you a fan of realtime streaming of Court Arguments . Ilya i like the audio and i like the audio when they ask questions one after another rather than the freeforall when the lawyer barely has a chance to say a few words in response to a question before another one is asked. That is also a covid innovation because they are using i guess a telephone conference call. It is not a zoom. They made it into the 20th century, not quite the 21st. They get to have about three minutes at a time, each justice, asking a question and the advocat responds. It has worked out. Weve had some sittings that way in the spring. The longer this goes, the more the norm is established we will have live audio, and i think it will be hard to put the genie back in the bottle. Susan you probably know what our positions are on that question. During the president ial campaign, there are suggestions and a barrettency confirmation might lead to the expansion of the number of seats on the court. The number nine, as you tell in your history, is not set in stone. The court has been various sizes through history. How was the number nine decided on and whwn . When . Ilya we started with sex, and then there wasd a decision that gave johnson more magistrates to appoint an cut the seats on the courts to five to prevent jefferson from getting a chance to appoint the court. In the lameduck session, again, after adams lost, thats when he thenated and confirmed federalist controlled senate, marshall was a lameduck appointee of a losing president ial election. After that, Thomas Jefferson expanded the court back to six. Then we had the seventh seat later added, jeffersons attempt marshallsct john federalist sway on the court, and then eighth and ninth seeds were added under andrew jackson. ,hey led to dred scott solidified a jacksonian view of state and federal relations on the slavery question and that was not a good thing longterm. It went up to 10 briefly under nixon and congress tried to cut that back under andrew johnson, who was impeached but not removed, but it is an active law. It is not something constitutional, it would just take a simple act of congress signed by the president. The senate would have to get rid of the filibuster first, there ule that says you need 60 senate votes to proceeded to a final vote on legislation. There is no more filibuster or judicial nominees, that was gotten rid of by the democrats. The senatecrats win by enough of margin and joe biden wins the white house, it becomes a possibility they could remove the filibuster and add however many seats they want. Although they should be cautious. All of those 19thcentury occasions i noted did not really benefit the country longterm and the last time something was tried was by fdr when the Supreme Court, the nine old men as they were called, were rejecting new deal programs and roosevelt proposed to add an assistant justice, how helpful, for the oldest men, over 70. That was usually unpopular and his Vice President campaigned against it, the chief justice, and progress