Who was appointed by president george w. Bush and initially donated to replace senator leon connor and while that nomination was pending the supreme justice of the court passed away and proper to his renominated for the rehnquist physician. And that meant there had to be a new nominee for the oconnor position and samuel alito was nominated for that. They essentially right that the court at the same time. I think it may have been a month of overlap and they are owed quite conservative coming out of the reaganbush era, justice departments and then later justices stevens and souter retired and they were replaced by Justice Sotomayor who president obama appointed the first hispanic american on the Supreme Court and then elena kagan who had been president obama solicitor general. Host you recount in the confirmation hearings for both Justice Roberts and Justice Kagan but did so in a slightly different way. Guest during his confirmation hearings chief Justice Roberts prepared Opening Statement really in which he said that the justices should be the umpires in the ballgame just calling balls and strikes. What he meant by that, he was actually explicit about it, he said people dont go to the ballgames to see the umpires. They go to see the players and find out who wins and who loses so the umpires shouldnt be the central focus of attention. But that came across as a statement sort of the about constitutional jurisprudence that all the judges did was sit there and see whether the statute was within the strike zone are outside of the strike zone. And thats suggested that the job of the justice was relatively mechanical. At least that is what the metaphor came across as. When Justice Kagan was questioned she said while yes, i mean you dont want the justices to be the focus. We want the laws to be the focus but when the justices make a decision the law is not always as clear as the ball coming right down to the strike zone and there is always or very frequently some degree of judgment that is involved in determining whether a statute is constitutional or not. Chief Justice Roberts has reportedly said since his confirmation that he might have put the balls and strikes metaphor a little better, to take away the suggestion that it was his job was just to be an objective observer of where the strike zone was. Host in the introduction you quote barack obama who was speaking as a senator explaining why he was voting against the confirmation of john roberts and obama said to paraphrase 95 of cases the laws pretty straightforward. The president of the rules are pretty much in the same place. But in about 5 of cases the critical ingredient comes from outside the law and you identified that critical ingredient as politics. What do you mean by that . Guest i talk about law and politics in the court. The law is pretty straightforward. The politics component is a very complicated land of things. Most of the time when we talk about politics, though we talk about partisan politics. Will will this policy or this decision help the Republican Party or the Democratic Party . That plays some role in what the court does. The justices are chosen by republicans or democrats and they have these either inclinations or feelings but its very rare for them to make a decision purely on the basis of partisan advantage. Whenever i give talks in public and i Say Something like that somebody raises the issue of rich against poor and i say sure , that is one of those cases where partisan politics almost certainly play the central role on both sides. But most of the time politics is a more sort of ideological or philosophical approach. So over the past generations, legal generations, republicans who were thinking about the constitution have developed a way of thinking about things that is different from the way that democrats incorporated about things. And, win these cases that involve politics and in this sense that are before the court, they deploy these ideological structures or philosophical structures to help them think through the problems they are dealing with. Its in that sense that politics , that kind of politics really does play a big part in most of the important decisions. Host at of course at the outset we have the process of choosing someone as a nominee and he said democrats and republicans look for somewhat Different Things in a nominee. With republicans you said reliability is sort of the holy grail. What do you mean by reliability . Guest let me just back up to give a little bit of the framework of the way i approach this. When a Supreme Court vacancy opens up, people talk about the president having an opportunity to leave a legacy and the question is exactly what that legacy is. Part of the legacy is that you are going to appoint someone who is going to be on the court for a very long time well after you are gone and you want that person to be remembered as your legacy on the court. But as a president you also want to create a legacy for your Political Party and so you want to use the nomination as a way of building their partys strength. So, republicans over the past now almost 30 years have approached this problem partly by saying well look our party has been a coalition of economic conservatives and social conservatives. For a variety of reasons we havent accomplished an enormous amount of social conservative agenda. There is a lot of rhetoric and rhetoric is important that as a matter of policy we havent pushed the agenda all that far on the national level. But we have done well on the economic level. What we need to do is to make sure that the social conservators in the program say that they are getting something. What they are getting our reliable judges, judges who will vote for the kinds of things and positions that social conservatives care about. That is the goal for Party Building by republican president s. Of course it also has these longterm effects of the legacy is both for the strength of the party and a court that is going to be conservative over the long run. Host what about democrats . Guest democrats have been much less concerned about constitutional jurisprudence. There are of course some baselines. No democrat democratic president is going to nominate a justice who the president believes with votes to restrict abortion rights and its very unlikely although its a little that they would nominate someone who was deeply skeptical about affirmative action. But that agenda is relatively narrow as well as a little restricted compared to the social conservative agenda. Rather what democratic president s have done is to use the nominations as a Party Building strategy. So, Ruth Bader Ginsburg nominated by president clinton, was a heroin of the womens rights movement. Sonia sotomayor was the first hispanic on the Supreme Court and the nomination occurs at a time when the democrats are increasingly trying to solidify hispanic support for the Democratic Party. Now, this Party Building strategy interacts with a lot of other things. You have to give the person confirmed. You might not want to use a lot of Political Capital in having a big fight over the confirmation. And so Justice Breyer was a safe nomination. Justice hagan doesnt have strong Party Building characteristics except another woman on the Supreme Court but it was clear that she would because confirmed without too much difficulty. Host one of the things you discuss in the book is courts and diversity as far as ethnicity religion geography and additional background. Can you talk a little bit about the ways the court is and isnt divorce and what ramifications that might have for the choice of a new justice . Guest at the moment the court is in this very statistically unusual, historically unique position on a friday of positions. The one that jumps out historically is religious operation there is now not a single protestant on the court. This is literally unprecedented. Now, religious division has become much less significant politicalpolitically in the u. S. Than it used to be but from a Historical Perspective this is is we talk about white anglosaxon protestant. The p is not there at all so that is one reason. The second dimension is how many justices are now for all practical purposes products of the mostly east coast and a smidgen of the west coast. Justice breyer has connections to california but for justices are from new york city. There are times in the past when president s have hesitated about nominating and it happened with new york when there was one justice from new york on the Supreme Court. The president thought hard about whether they should nominate a second new yorker or not terry now there are four and there is certainly this separation of the coasts. The center of the country is not represented in some sense on the court. And then the final item is in terms of academic background. Every justice now on the court has a law degree from one of the top legal law schools. That is also unusual. Obviously those law schools are dominated on the court but no one from northwestern which is where Justice Stevens graduated or some other school. Its quite unusual. What i say in the book on that particular question is, i dont know if its ambivalent. Thats not quite the right word but clearly i have taught at several law schools and its clear that, and i give talks everywhere, its clear that every law school has top students or really really good, and so you could find graduates of other schools that would be competent, more than competent, excellent Supreme Court justices. At the same time one of the things that is happening in the United States is the development of an Academic Merit talk received. Quotas cease to exist at the maine law schools and they dont anymore. And so one of the things that we might be observing and this narrowing of the academic background is actually a triumphed over meritocratic Legal Education system. Host you point out that most of the justices had been judges and they dont i enlarge have a tremendous amount of realworld nittygritty experience practicing law. Do you think it would be helpful to have more justices that have spent more time kind of in the trenches . Guest i personally do but there are different kinds of legal experience that you can have. It would be helpful to have justices who actually engage in a substantial criminal practice. Justices alito and sotomayor did some of that, both of them on the prosecution side. Justice Thurgood Marshall who had a criminal practice on the defense side. I think it would be nice to have someone who had criminal defense kind of experience. There is a range of civil practice experience that would be useful to have. Justice powell was a Major Corporate lawyer for example. The court is now dealing with a large number of intellectual property issues and last year in one of them Justice Scalia issued an opinion in which he said i dont have a clue as to the science that is going on here. Iatas have to express what people are telling me. It would be nice if you have someone had a background in science if youre going to be doing a lot of this. The one real gap historically is that there are not any justices with significant experience in high levels of National Politics if you go back over history Charles Evan Hughes had been secretary of state and a president ial candidate. Earl warren had been governor of california. There were lots of justices who had significant amount of political experience and that used to be thought valuable because lots of the things that the court for two reasons. One, lots of the things the court does involves arranging the political system and it helps to know how the system actually works if you are going to be intervening at some particular point. The second thing is that used to be thought that people with political experience had a kind of personal interact in personal ways that would push courts to compromise and accommodation. I guess to go you have to get along to go along. I used to make a point the loss that the court was experiencing by not having these type of politicians on it and in a draft of the book and the draft was written before the 2012 elections, i listed some potential nominees that included politicians as possible nominees one of whom was, and this has developed and this candidate and potential ted cruz. He had announced for the senate that hadnt been elected and that is sort of symbolic of what current politicians are like. They dont have this accommodating air and so i am less enthusiastic than i used to be about the idea of appointing politicians. I should say i use an example from the republican republican side that the semester mr. On the democratic side. Host if a vacancy were to arise and say with a democratic president you had mentioned some particular groups that are clamoring for representation on the Supreme Court. It asianamericans or maybe another africanamerican justice who would be liberal as opposed to Clarence Thomas who is conservative. What do you think will be some of the cat elation is that going to the next pic . Guest well at the moment it doesnt look as if its likely that president obama will get another nomination so we are talking about whoever it is that is elected in 2016 and that could be a republican or a democrat. Second, it will be the vacancy that is being filled so if a moat is nominating a replacement for Justice Ginsburg to i say i have no information about her intentions to retire. She plans but lets use that as an example. Host she is the oldest at the moment. Guest she is the oldest of the moment. It would be easier for democratic nominee to fill that position because it wont change the valence of lyrical balance on the court. It will replace an older liberal justice with a younger liberal justice and that is significant because of the length of time but its not a big deal. If the nomination is to replace Anthony Kennedy or Justice Scalia who are among i think they are the oldest of the republican nominees, then if it were a democratic nomination that will affect the composition of the court in a dramatic way. So those are just complete contingencies. We dont know when they are going to occur and who the president is going to be and who the new justice will be replacing. Dionne that, from the democratic point of view i think the Party Building strategy that i described will be followed. I think it would be surprising if the nominee were a democratic nominee were not either africanamerican or asianamerican. Host a. K. A. Nominee would be hard to confirm . Guest its too early. Its the next demographic that they will be concerned about but its a little early. That is sort of inside the bench of potential nominees to the Supreme Court is then because sort of training through the lower courts has not yet occurred, again for lyrical timing and reasons, wouldnt be impossible to find a qualified nominee. The other thing i actually i think might be worried about this but i think whether the next president nominating is a democrat or a republican i think they will think about the religious issue and try to find a protestant and secondarily tried to break the ivy league monopoly. That is harder to do because of the meritocracy point but those are going to be secondary. Host talk in shorthand about the courts liberal wing and conservative wing but as you point out in many cases the votes dont defy its cell uniquely. What sort of generally speaking are the kinds of cases where you might tend to see a more unlikely set of alliances among the justices . Guest i think the first thing to say is a point that i made early in the book which is that there are nine people. That is a relatively small decision and i had some colleagues who knew better than me how to figure this out. If you figure that seven of them in every case will vote as conservatives or liberals but two of them will take an independent view in this particular case and if you figure that happens in 70 or 80 of the cases, been roughly speaking a quarter of the cases wont line up ideologically. That is just by doing the math. Lots of cases will line up ideologically but what leads to that, each justice will have something that they called hobbyhorses, particular issues that they care a lot about and have views that are idiosyncratic relative to their general ideological companions. So Justice Scalia is probably the easiest example. He is a reliable conservative on many issues including the criminal Justice System and the rights of criminal defendants but he had a hobbyhorse about the right to confrontation, the right of the defendants view actually on the stand of the courtroom a person who is testifying against him. So, in a confrontation case Justice Scalia will vote with the liberals. Each one of them probably has some similar kinds of hobbyhorses. Justice breyer is interested in the Technical Expertise and likes to let technical experts make decisions and that is the kind of thing that leads to these decisions in which the partisan alignment. Host of course one of those was the Affordable Care act and as you point out it wasnt clear up front necessarily what the consequences of the e