From the chief Legal Correspondent for cbs news covering the Supreme Court and the confirmation battle. I am delighted to be moderating this incredibly timely conversation about a terrific book written by teethree about our history going to the most recent with kavanaugh and then outlined the possible path forward and when i read the book for the first time so professor Randy Barnett scooped me on those words thats how he described it as the indispensable guide and then also waiting the judicial confirmation and network book about the recent fight of Justice Kavanaugh. So that conversation about the news of the day or the week or the month and Justice Ginsburg and on the upcoming part of the nomination with incredible experts so i will start with teethree who is head of the center for constitutional all studies because in june we stood in front of the Supreme Court waiting for the interns to the opinions in our hands and then we go for those before we break the news to be quick and a student sometimes even get the signature dry wet in their that he has written a terrific book is it is supreme disorder. And is something i think now more than ever so take us through what made you decide to write this book and the world has changed. The publisher had to pay it was in the back of my mind that Something Like this could happen and there is something a little odd and not too healthy of the morbid healthwatch of those vacancies when they appear if there is a better way is there a better way is why wrote the book in the wake of the kavanaugh hearings has always been like this and as i began to do my research it has been a part of the nomination and confirmation process and these controversies and the concerns are different and the imaginations are different with regional balance with the role of the court our slavery or Railroad Regulation and vote their own self corruption and allowing the Roosevelt Administration fdr to implicitly amend the constitution and so you have this divergence of constitutional theories. On whats different now than 1962 when kennedy nominated byron white question for 15 minutes about his football career the last time a Supreme Court justice had played in the nfl while a student at yale law school. But things have changed and the combination of these trends diversion interpretive theories at a time when the parties are more ideologically sorted and that will not change back overnight. And potential Reform Efforts and term limits and restructuring the court and expanding the court and to change on the hearings or how that confirmation process itself works and since the core is so important the only way to reduce the tension and then to repel the Constitutional Order and the people within washington that is debating and deciding the remaining policy value clashes with the administrative it is agencies. So now in the long term i dont have any previously undiscovered bullets and with that toxic cloud that envelops as the rest of our Public Discourse. And that will take decades to come out of it. And where we are bitterly divided. And how much uglier can it get in the dish is like rearranging the deck chairs on the titanic the court has injected itself so this is just the inevitable outlook of that. And with that statutory interpretation is so different in that is important and there will be fighting over that. And so those viewers that are interested whats going on in the Supreme Court right now but as we were saying the social issues with the confirmation process and now in the middle of now it will be a confirmation inside the court over 25 years and then to say and then to go back to the founders. But you wrote a book about the last confirmation with Justice Kavanaugh so looking at this book and now see the backdrop and Justice Ginsburg and the president has a nominee one a nominee is anything the country would see and in the months to come . His book is the wine i wished i had had when i was writing my own book because it does give a scope from George Washington on and then to really look at that confirmation. So just following through that historical frame. So why not . Start taking notes. So one thing that ilya shapiro alluded to it has always been here but another the way he brought out the confirmation process is contingent on the stakes of the confirmation process and i agree if we need to get the court out of deciding these issues at that level and i down the politics and with Justice Ginsburg to be replaced and two, from another potential because things have already been heating up and the temperature is getting higher politically right now and then we have to stop aoc and im not sure what that will mean. I dont think it will work exactly the same launched against Justice Kavanaugh people will want for whatever it takes to get in the way of this confirmation process. So i love the last two chapters of ideas of what can we do to take the temperature down . Now i feel like im right in the middle of another process. There is not time for a constitutional amendment, but at the end of the day the only option for trying to limit the fallout to have an approach looking at the text of the original understanding that do naturally bring in those political influencers. And then will happen or who may be nominated or how its going to go down. Were also taking questions from the audience. The battle is pitched on the stakes you have a republican in the white house and the controlled senate and a leading liberal stepping down from the Supreme Court. That doesnt happen often but we have the election in six weeks. So take us through what you see where we are right now and what we can learn from looking at those past items ilya shapiro has written about. Thank you. Its a pleasure to be here i will do something having a book for myself i want to start off with the first message, by this back. Everybody was on the line, watching the show needs to buy this book. The way for the show to be over place your amazon order now. The reason is there is no book published that is like this book. It is a comprehensive account of every judicial nominee from George Washington until today how they were nominated in the process when it looked and did not look like. It is an irreplaceable resource and a fascinating read. Im now in the process of revising my case before the fourth edition and facebook is taught on the narrative way but a change the narrative ive been rich to the narrative by relying on this book inciting it in my cases go to buy the book. This is something that carrie has alluded to in one for the history of Supreme Court nominations if they nominated that process has always been political. And if you think about it for two seconds because the up president always chooses a Supreme Court nominee and then they are confirmed by a politically elected senate so politics is baked in to the Supreme Court election process so because its political it is ideological that depends there is a consensus that exist among the political elites because those are the people who are doing the nominating of how the constitution should be interpreted so there has been that consensus whatever there is how it should be interpreted with a Constitutional Republic that the only thing the confirmation will focus on sometimes we call qualifications and how smart are you. Those sorts of things if there is a disagreement calling the judicial philosophy then becomes relevant and ever since 1980 when reagan was elected president to be a disagreement reflected in that Political Parties system as to how it should be interpreted in that only intensified in the developed to the point where they originally talking about the original is him the weather a judge just recently committed to the text of the constitution when the two parties have sorted themselves out to those ideological lines , you will then have a battle over every nominee because the nominee of the other party may be qualified they were not sure the judicial philosophy of the opposing party. And the presidency is held in the same hands as the senate you will see what reflects that convergence but when it is held in the president of one party in the senate in the hands of the other then you see he compromise candidates put forward they will try to get pass the confirmation hurdle this will reflect judicial philosophy and how it should be interpreted. The nation is divided now we have unified government so therefore we can expect a nominee to reflect that philosophy that is now promoted by the republican part and there will be opposition by the democrats on the same ground. I will pick up there with questions from the panel and then go to the audience questio question. It raises a point where we are at this moment in time to control the senate and the white house we are seeing senator mcconnell say when obama nominated merrick garland. On the republican in the white house, so lets get your thoughts and historically. As i detail in the book there have been 25 times we had vacancies in president ial Election Years. He has made the nomination every one of those 29 times whether that nominee is confirmed depends on whether we have united or divided government. Overall, not just the Election Year confirmation for United Government is about 90 percent divided government is just short of 60 percent so hardly ever with divided government and hardly ever was there is United Government if it is not confirmed and in 1968 back before scalia was the most recent Election Year vacancy with the bipartisan opposition and to be chief justice but historically we had confirmation with periods of government even during the lameduck and John Marshall all the great chief nominated by adams after he lost the bid for reelection against jefferson and the Senate Confirmed him then so there is nothing new under the sun in the long part of american history. And many are along those lines and with the replacement for Justice Ginsburg. Sloan. But were not on the same panel. If anybody wants to fact check the numerous claims you will hear through the next few weeks and then to say chief justice John Marshall one of the highly regarded chief justices and those doing the Fact Checking. And i sure that if you go to supreme disorder. Com not only can you buy the book there but there is a statistical and historical appendix so see tables of all the confirmation sliced and diced including those record georges supreme disorder. Com hopefully that is a resource during this debate going forward. And trying to read the questions if i miss but not your name we have a question from robert and with Court Packing how do we stop the legislature from destroying the third branch check and balance . And when biden wins we just add two or three more . Anyone . There is a really important distinction the Court Packing is also the nomination question the distinction between constitutional and what is normal as a normal practice and with respect to constitutionality and then has the power to nominate and to confirm. There is no constitutional crisis which is another term that is widely used in using the power to nominate and its imperfectly on perfectly constitutional and then to change the composition of the Supreme Court those justices set of the Supreme Court not separate the constitution by congress but they did pass a law as long as the house and the senate agree and the president signed into law to override the president ial Veto Congress is free to expand the number of justices even if motivated to do so to given the politically elected president power to tip that balance of the ideological balance of the court. We just have to distinguish what is clearly a matter of tradition and norms because they get run together. 350 law professors and 2016 signed a letter that said the constitution required the senate to give the nominee the constitutional duty to give a hearing and a vote it creates no such constitutional duty the power of the senate to advise and consent the not having any vote and ilya shapiro book demonstrates there is a lot of history of no votes. So to shift the conversation then you need a Historical Context thats the point that there is no constitutional problem with the president nominating the senate and those two pack the court. What are some of the lessons with that Court Packing proposal . And in the proposals to even asked that. Of how that may unfold in real time. So there is no magic to the number nine we had 150 years with the Justice Court and then it was accompanied by that mischief and when the new circuits were added there were some convenient political reasons of talk about the nomination of John Marshall that john adams had to a point because incoming president Thomas Jefferson and then to restore the courts which one of the justices opposed in the seventh seat was added 18 oh seven and then to resist the chief Justice Marshall federalist. These and to be under the story of John Marshall and underage jackson and with dred scott and then to be appointed by jackson and then to be facilitated or forestall the civil war. And during the civil war to give Abraham Lincoln more power and then andrew john john on jackson 62 lincoln and then they kept the call from Seven Members so the next three will not be replaced and then that was stabilized at nine in 1869. And in 1938 midterms even though two years later he was overruled overwhelmingly so the history of playing around with the numbers shows there are definite negative consequences if it is successful but a longterm loss doesnt and for the country as a whole. So we see that he is not in favor of that. Is that enough to rein in the efforts or is that a push for democrats if President Trump can get someone confirmed to replace Justice Ginsburg . I will just be quick. So having President Trumps nominee be confirmed is a provocation by the democrats even though joe biden and Bernie Sanders for that matter the only thing i agree with him on against Court Packing even though they are the finalist your payments the only two that are against it in the primary and without further publication if they stop white house and the senate to prevent them from doing so who knows and then acting on a differently based on these questions that are coming in. I think because most democrat activist have been calling for the expansion of the courts ever since the kavanaugh nominatio nomination, if not before that the fact they will now threaten it is possible to think there is more political momentum to doing it even amongst their own base that would unify the Democratic Base and this was something that was an offer anyway i really do think if joe biden wins and they take control of the senate, we will see a Court Packing no matter what and now i think we will see the Court Packing scheme of fashion happen no matter what. And that does not provide any reason whatsoever to refrain from whatever nominee we hear about this week spirit they said they would do and promised they would do with you he will tell them up is a have had the opportunity they need the white house and the senate if they get that its clear they will move forward on a Court Packing scheme. And then in addition to Bernie Sanders and then and so i hope it doesnt come to that and that idea with each party has two more seats in that is damaging as a whole and we need to pull back from that if there is an opportunity i dont see the democrats doing that singlehandedly. We have heard a lot about norms that the norm of nine is a very well entrenched norm. That norm of nine meech in each party vies for control within the nine justice setting. So it will destroy the norm of nine and by doing that it will turn the number into political football it from now to indefinitely so that will have a serious cost for the judicial stability. Going back to your comments earlier so how would that be undone . Nine to 11 or 13 down to 11 so every four or eight years ago nine, 13, 15 that is a concerted how does i get undone . Exactly. So to have that require the house and senate must be in the hands of the same party as the senate and now they would have to vote to eliminate the legislative filibuster so they could do it on appear majority vote and sensei have abolished the filibuster with respect to the Supreme Court i dont think there will be much hesitation and that they to abolish that filibuster anyway and regardless of this happen