Needs to increase its population by 1 billion in order to compete in the global marketplace. Find more information on your Program Guide or apple tv. Org. Good morning everyone, good afternoon, wherever you are in this great nation and welcome, who could have imagined what a timely conversation this would be. Im jan crawford, chief Legal Correspondent for cbs news covering the Supreme Court and upcoming confirmation battle and im delighted to be moderating what is going to be, and incredibly timely conversation about our terrific book written by kato as elia schapiro supreme disorder honored to get a sneak peek of it i thought, this is just really an indispensable guide i have to keep on my desk for the next upcoming confirmation battle, professor Randy Barnett of Georgetown Law SchoolSupreme Court expert scooped me on those words, thats how he described it an indispensable guide and Carrie Severino has also written a guide herself with judicial confirmation a book about the recent fight over Justice Kavanaughs nomination. We are going to have a conversation today about what is the news of the day, week, month, year Justice Ginsburg passing and now the upcoming fight over nomination and confirmation of her successor with the backdrop of three incredible experts wellversed in history and Current Affairs and analytical skills about what we can expect. To start with elia, but robert e leavy center for constitutional studies we go over those before we break the news of what those opinions and its always quick, astute, and sometimes even get some of the signature in their hes written a terrific book. It is supreme supreme disorder. It is something that i think now more than ever when you wrote this book ilya shapiro, you certainly didnt think this would be breaking at this moment obviously with aging justices anything can happen but i wouldve turned it over to you, take us through what made you decide to write this book and where are we right now . The world has changed since friday, probably kind of also knew this could be coming. Thank you january the publisher had to pay extra to get the timing as it is now, certainly was in the back of my mind, i think a lot of peoples minds that Something Like this could happen and indeed something a little and not too healthy about the morbid health watches of justices and the arbitrary nature of vacancies when they appear, is there a better way. Thats why i wrote the book in the wake of the kavanaugh hearings devcon 12 i thought to myself, has it always been this way . When did it start the role of politics . As i began to do my research i realized politics has been a part of the nomination and confirmation process from the very beginning. George washington had one of his nominees rejected. These sorts of controversies play out in different ways. The political machinations are different he had to have regional balance or concern over somebodys perceptions on the role of the court on slavery or Railroad Regulation what have you. In the modern day theres really a couple turning points. I wouldnt put it at kavanaugh or garland or abbut the courts own self corruption allowing the Roosevelt Administration fdr to implicitly amend the constitution expand federal power, change the way that rights are understood so you have this divergence of constitutional theories. What we have now, whats different now then 1962 when president kennedy nominated byron white who had an hour to have hearing, he was question for 15 minutes about his football career, probably the last time that a Supreme Court justice had played in the nfl while a student at yell law school but things have changed and the reason is we have the culmination of these trends where divergent interpretive theories map onto partisan preferences at a time when the parties are more ideologically sorted since at least the civil war if not ever. I talked about in my book supreme disorder, potential reform efforts, term limits, restructuring the port, expanding the court, procedures to change on the hearings or how the confirmation process itself works. At the end of the day this is rearranging deck chairs from titanic because the titanic since the court is so important deciding so Many Political controversies every year the only way to reduce the tensions to detoxify these fights is to rebalance our constitutional orders, send power back to the states and the people and within washington, its congress thats debating and deciding the remaining policy and values clashes rather than pushing everything into the administrative agencies, the executive branch, which can only be sued they cant be elected. Im afraid weather forabi cant dissipate the toxic cloud that envelops judicial nominations as much as the rest of our Public Discourse. It took decades to get where we are and its going to take decades to come out of it. It sounds like where we are, bitterly divided that weve seen most recent confirmation battle, which Carrie Severino had written her book about that how much uglier can it get . So your point, ilya, i think the process she said rearranging deck chairs on the titanic the court has injected itself into aband said its just inevitable outgrowth of that. Right. [multiple speakers] those seats are important. There is going to be fighting over that, thats the politicians response. Sorry about that. [multiple speakers] i actually thought that because the response to this since friday has skyrocketed. Thank you guys for getting us back on air. Let me recap where we were. Ilya just read a short part of his book supreme disorder talking about the nature of the Supreme Court and its involvement in these social issues by extension may the confirmation process what it is today. We of course are in the middle of now whats going to be a confirmation fight i think unlike any of us have ever seen, ive covered the court over 25 years, we can think back to Thurgood Marshall, ilya also said that politics and confirmation battles go way back even back to the days of the founders. Im going to kick it over to Carrie Severino, judicial confirmation network, you wrote a book about our last confirmation fight that doesnt seem that long ago, looking at ilyas book and seeing the backdrop of Justice Ginsburg passing and the president saying hes gonna have a nominee friday or saturday to replace her and what we know is going to be a battle ahead, have you looking at ilios book and think about your knowledge, is this unlike anything our country will have ever seen what we are going to see in the months to come . Yes, his book is the one i wish i had had when i was writing my own book because it does such a great job of giving a scope of history from George Washington on. Your book, what you didnt mention the supreme conflict was a book i was so grateful to have it looks at the alito and robert confirmation. It will be your turn next. [laughter] right. Lineup, start taking notes. One thing that ilya alluded to his politics unfortunately has always been there but another theme that he brought out and the type of confirmation process you get in many ways is contingent on mistakes of the confirmation process, thats unfortunate because so many gets decided at the court. If we could get the court out of deciding so many of these National Issues at that high level maybe we could dial down the politics. Of course the stakes of this confirmation are huge with Justice Ginsburg being more placed. Looks like likely by a woman. In some ways somewhat following in your footsteps but coming at it from a very different jurisprudential perspective. Its going to i think its interesting to see what happens because we are seeing things heating up, its hard to imagine the temperature getting any higher politically right now. People like Alexandra Ocasio cortez im not sure what that will mean, i dont think its gonna look exactly the same as the type of Smear Campaign launched against Justice Kavanaugh but you can see theres a lot of people who are going to want to do whatever it takes to get in the way of this confirmation process and block it. For all of the great i love the last few chapters of ilyas book of ideas of what we can do to change the temperature down on these things. Unfortunately now i feel like we are right in the middle of whats gonna be another very heated process. There is not time for constitutional amendment to try to involve term limits, i think at the end of the day the only option for trying to limit the political fallout in these things is trying to as a nation agree on an approach to the law and the constitution that takes the politics out and that is to look at the text in the original understanding of the documents rather than have interpretable lost that naturally bring in all the political influences. We can talk about some of those prescriptions and then maybe whats gonna happen who might be nominated and how its going to go down. Let me also remind everyone, we are also taking questions from the audience. Trying to develop most of the time to have a conversation with all of you. You can do the hashtag which i think you can see at the bottom of the screen. We are taking questions on twitter and facebook, all forms of social media. Submit your questions and we will get to those shortly. Obviously the battle as carrie just said is pitched based on mistakes. The stakes are pretty high right now that Republicancontrolled Senate and leading liberal stepping down from the Supreme Court, those are moments in history that dont happen often, weve also got an election in six weeks. Take us through what you see where we are right now and whats ahead and what we can learn from looking at some of those past battles that ilya has written about. Thank you jan, pleasure to be here. Im gonna do something i think is really important having had a book and having a cato book form for myself, i want to start with the first message, by this book. Everybody who is on the line here, everybody watching the show needs to buy this book, dont wait for the show to be over disco place your amazon order now, the reason why is that there is no book thats been published that is like this book. This is a comprehensive account of every judicial nominee from George Washington until today, who nominated, when they were nominated, how they were nominated, what the process look like, what it didnt look like. It is an irreplaceable resource and its a fascinating read. Im now in the process of revising my casebook my constitutional law casebook for the fourth edition and the casebook has taught in a narrative way, ive changed narrative ive added, ive enriched the narrative by relying on this book and deciding this book one of the lessons revealed by this is something that kerry has already alluded to and that is you learn from this history of Supreme Court nominations is that the Supreme Court nominating and confirmation process has always been political. Its always been political. If you think about it for two seconds you realize why it has to be political. That is because a politically elected president always chooses the Supreme Court nominee and they are then confirmed by a politically elected senate. Because its always political doesnt mean its always ideological. Whether its ideological or not depends on whether there is a consensus that exists amongst the political elites because thats the people doing nominating and confirmation about how the constitution should be interpreted. For a great periods of history there has been that consensus, whenever there is a what the proper role of the judiciary is in a Constitutional Republic then the only thing that judicial confirmation hearings are going to focus on is what we sometimes call qualifications, whats your judicial experience . Where did you go to law school . How smart are you . Those sorts of things. As soon as there is disagreement about how the constitution should be interpreted, then what we call judicial philosophy then becomes relevant. Ever since 1980 when Ronald Reagan was elected president there started to be a disagreement thats reflected in the Political Party system between republicans and democrats as to how the constitution should be interpreted and that disagreement is only intensified as the republican part of the two party system has developed to the point where they initially were originally talking about judicial restraint and now talk about original is him and whether a judge is faithfully committed to the original text of the constitution. When the two parties have sorted themselves out along you might say ideological lines but i would say judicial philosophical lines then you are going to have a battle between the two parties over every nominee because the nominees of the other party might be qualified in the sensibilities etc. But they are not going to share the judicial philosophy of the opposing party so when the presidency is held in the same hands as the senate then you are going to see a nominee that reflects those the fact that there is convergence but when the presidency is held in the hands of a president of one party and the senate is going to be held in the hands of the other party then you see compromise candidates put forward that are going to try to get past the confirmation hurdle of the other party and this is going to reflect judicial philosophy in a nation thats divided about how the constitution should be interpreted because our nation is divided now but we have at the moment unified government between senate and president. We can expect the nominee whos going to reflect the political, judicial philosophies of now being theres going to be opposition by the democrats on the same grounds. Im going to pick up there with some questions for the panel and then we will go to the audience questions. This raises a point where we are at this moment in time which is the same Party Controlling the senate and in the white house and weve seen senator mcconnell say this is why this is different than when president obama nominated merrick garland. Thats why they are saying this is not a democracy because you have this aband Republicancontrolled Senate and republican the white house. Im going to get your thoughts on all of the news of the day. Historically a [multiple speakers] as i detail in the book there have been 29 times where weve had vacancies in president ial Election Years. The president has made a nomination every one of those 29 times. Whether that nominee gets confirmed to depends on, as what randy described as whether we have united or divided government, overall not just in the Election Year rates and confirmation for United Government, the Senate White House and the same party is about 90 . For divided government extra short of 60 . That different is accentuated in president ial Election Years. Hardly ever when there is divided government is the nominee confirmed and hardly ever when theres United Government is the nominee not confirmed, one exception to that is fairly recent in 1968 back before Justice Scalia was in the vacancy and there was bipartisan opposition based on ethical concerns to the elevation of justice for this to be chief justice. Durning united period of government even during the lameduck even for example, the most notably John Marshall the great chief nominated by john adams after adams had lost his bid for reelection against Thomas Jefferson and the Senate Confirmed the then. Theres nothing new under the sun in our long path of american history. That answers a lot of questions. To summarize we are getting a lot of questions for our panel and many are along those lines that should we have learned should the replacement for Justice Ginsburg be left to the next president . Should a vote occur is it proper for a vote to occur before the election is it proper for a vote abits hard when we are not in the same panel in front of each other. I was just going to say i think anyone who wants to be able to fact check some of the numerous claims you are going to hear through the next few weeks going through this process this is the book to do it because its things like that cant ever have abi dont know that we will have a vote during the lameduck session but for people who say its all legitimate, nobody said justice John Marshall one of the most highly regarded chief justice as was illegitimate. Get the book if only so you can be the one whos doing the Fact Checking and say, actually, here it is on page 23. I should add, if you go to supreme disorder. Com, not only can you also buy the book there, which has randy said is important. But there is a statistical and historical appendix so you can see tables of all the confirmation sliced and diced every way politically, historically, timewise including some on Lower Court Judges toward the end. Supreme disorder. Com hopefully that can be a resource during this debate going forward. Im