Advice & Consent: The Senate’s (Changing) Role in Judicial Confirmations, Part 1


– I believe that’s the
cue for us to begin. So we’ll begin. I’m Bob Bower. I know you have programs in front of you, I’ll be very brief with
the introductions here. On my far left is David Pozen, who is a professor of law
at Columbia University. He is an author on any number of topics in major journals on constitutional law and has written specifically on something that will come up in the
discussion here today, which is constitutional hardball. He’s been a clerk on
the U.S. Supreme Court and like other of our
panelists, he has had experience with the Senate Judiciary
Committee quite directly. Immediately on his
right is Gregg Nunziata, who is a partner at
Manatt-Phelps in Washington, D.C. He too, has very significant Senate Judiciary Committee experience and with General Counsel and Senior Domestic Policy
Advisor to Marco Rubio. On my right, is Kristine Lucius who is Executive Vice-President for Policy at the Leadership Conference. She has many years of experience with the Senate Judiciary Committee as a Senior Advisor in these matters. In fact, the top Legal and
Policy Advisors to Senator Leahy. And is an expert on judicial
and executive nominations. And on her right, is Russel Wheeler, Adjunct Professor at American University’s Washington College of Law and a fellow at the
Brookings Institution’s Governance Studies program. He’s also the President of
the Governance Institute, which has a specific interest in interbranch relations and
their policy implications. And has served for a number of years, or did serve for a number of years, as Deputy Director of the
Federal Judicial Center. He’s published widely in these areas. The purpose here, for me,
is to stimulate debate, if not hostilities, among the panelists. (audience laughs) Since we’re talking about a
broken confirmation process, I thought we could model dysfunction right up here at the table, so you could see how it developed. In any event, I thought I would begin, because what we’re going to
encourage each of the panelists, the panelists tonight have agreed, is everyone takes this conversation where they think it’s
gonna be most productive. The broad themes we’re
going to be looking at is where do we currently stand right now, where do the grave
misunderstandings divisions lie in our understanding of the advice and consent function of the senate, what are its sources,
how did this come about? If, in fact, we are agreed, that we are in the midst of
some significant division, misunderstanding, confusion, if you will, about that function. How did that come about? And last but not least, as always, what is it that we can do about it? And I thought I would begin, this is in lieu of an opening statement, just tossing to each one
of these panelists in turn, beginning on the left
here with Professor Pozen, I thought I would begin
by just bringing up here a few comments that Senator Susan Collins made on the floor of the senate, when she delivered her extensive statement in support of her
decision to vote in favor of the confirmation of
now-Justice Brett Kavanaugh. And I want to pick, in particular, her framing of what she believes, having been in the senate many times, having voted on many
Supreme Court nominations, what she believed her advice
and consent function to be. I could have picked,
other members obviously had views expressed over the course of this most-recent confirmation
hearing, but of course, the Collins speech was a
somewhat dramatic moment. Though I think, at that point, it was know which way she was gonna go, and she went to some lengths
to lay out, in some detail, her views, both on that function
and also how she decided on the fact of this particular
nominee’s confirmation, how she decided to apply the
standard that she articulated. She takes her cue from
Federalist 76, she says, And that “The president
has broad discretion,” that’s how she frames
it, broad discretion, “To consider a nominee’s philosophy, “whereas it is the
senate’s duty,” she says, “To focus on the nominee’s qualifications, “as long as that nominee’s
philosophy is within,” and I’m gonna emphasize this, “The mainstream of judicial thought.” She objects to litmus test, does not believe that a nominee’s personal and political views are
relevant areas of inquiry, provided that they can assure her that they will set those aside and simply, and judge these cases, set
aside their personal preferences and judge cases fairly on the law and constitutional principle. She gives no consideration, she says, and does not believe a senator should give any consideration,
to a president’s identity, who the president in office happens to be, or to the political party of
the president or the nominee. Partisan considerations, in
other words, in her view, shouldn’t in any way come into
this decision-making process. And she closes by noting
that applying that standard, she voted for all of
George Bush’s nominees, she voted for all Barack Obama’s nominees, and prior to the vote on Brett Kavanaugh, she voted for the confirmation
of Justice Neil Gorsuch. That’s how she set it out. I don’t think, by the way,
that the way she set it out is inconsistent with what I understand a lot of members might
say, maybe not all of them, but might say about what they
believe the standard to be. But let me begin by asking
each of the panelists to say whether they believe that this is an illuminating,
adequate statement of what that function is, that it captures how members
do think about that obligation and whether it captures it
adequately, to our satisfaction. And it’s an opportunity to
both address that issue, sort of as a matter of fact, do you think that’s
correct and if you want, also begin to introduce your views about what may be the shortcoming in it. And I’ll begin with you Professor Pozen. – Okay, thanks very much. I’m honored to be here on
this distinguished panel and also delighted to reconnect
with the Brennan Center where I interned over a
decade ago, in my youth. I disagree with Senator
Collins’ statement, descriptively and normatively. So I’ll say a few words on both. Descriptively, I think her
representation of this view that you should just look at
qualifications and temperament doesn’t actually track senate
practice for a long time now, though it may fairly
track her own practice. Before President Bush the first, the rate of senate non-confirmation of circuit court nominations,
never went above 20%. That is, 80% or more of
circuit court nominations got confirmed under all
presidencies, prior to Bush. The last three presidencies before Trump, the non-confirmation rate was above 40%. So, in recent years at least, clearly the senate has been doing more than just looking into
qualifications and temperament, because it’s wildly
implausible that 40% plus of the Clinton, Obama, and Bush II nominees were unqualified. So I think our actual practice
is much more ideological than what Collins suggests. On the desirability, or
not, of that practice, I think it’s fair and appropriate, what she says in her statement,
about not being partisan, not having partisanship
drive your decision to vote to confirm or
not to confirm a nominee. The difficulty, of course,
is that in our era, partisanship has come
to track very closely, deeply held, ideological views
and political moral views, so that in a world in which
there’s a tight correlation between partisanship
and judicial philosophy, you can’t separate those two out and you’re often gonna
end up acting in a way that looks like a partisan manner, if you’re sticking with
your principle view of how the constitution
should be interpreted. And since at least 1980, you can take the story back
to the Nixon Administration, but since, at least, the
Reagan Administration, the two major political
parties, as is well known, have not only polarized in their politics and in their voting records, but also in their approach
to the constitution and constitutional interpretation. In a nutshell, republicans
have become heavily associated with the interpretive theory
of originalism with themes of strict constructionism
and judicial restraint. And democrats, by and large, stick to a kind of living
constitutionalist approach, which takes into account
contemporary needs and values more explicitly. There’s a lot of complexity
on both sides there. But there are now, there’s been constitutional
polarization, in other words. Not just partisan and
political polarization. And that means that you’re gonna have more and more situations where democrats are gonna have
a constitutional difference with the republican
nominee and vice versa. And finally, I’ll just say that in a world in which judges are nominated on the basis of their ideology, that’s the world we’ve been in
since the FDR Administration, that was really the rise of policy-driven, overtly ideological selection
from within the White House. When presidents are doing that and when the parties have these coherent and very distinctive
constitutional approaches, it seems to me, odd,
that you would just take a qualification or temperament-based
approach to your role. It strikes me as close to an abdication of the senate’s responsibility to provide meaningful advice and consent. So that leads to all kinds
of pathological outcomes, where you get mutual escalation and non-confirmation rates that soar. So I do worry about those dynamics, but it just seems to me strange
to think that a senator, with a well-developed constitutional view, strongly opposed to the
view of the nominee, and again, that is the new normal, that’s our new equilibrium, would subside in the face of that kind of deeply-held
concern about the nominee. So I don’t like what Susan
Collins did at a local level, as applied to the particular case at hand, but I also think it’s an
unattractive vision she presents. – Gregg? – Thank you. I’m happy to be here as well,
I appreciate this opportunity. And I actually agree with much
of what Professor Pozen said. I think that Senator Collins’
speech was extraordinary, it’s worth reading, and in
it she takes great pains to spell out what tests
she thinks the senate should apply and what
the various burdens are. More senators should do that. I think most senators, frankly, arrive at a Supreme Court
nomination certainly, and also likely at
circuit court nominations, with a decision that’s driven
by all the kinds of stuff that the professor was just talking about. And then you see a lot of,
kind of, backwards arguing into justifying the vote
that is rarely credible. I think Collins’ speech is an accurate reflection of
the approach she has taken. And it’s basically a belief that senators should
defer to the president on these constitutional issues, barring the advice and consent check, it’s just a check maybe on sheer cronyism or unacceptable, unprepared nominations. Senator Graham, who’s likely the new Chairman of the
Judiciary Committee, has also articulated that view and that’s maybe even more
remarkable than Collins, because he’s got, ideologically
he’s more conservative and he’s also ideologically
in a judicial sense, more firmly in kind of a
conservative tradition. There have been senators,
over time, who had that view, that elections have consequences, they should defer to
the president’s choice. It’s a defensible view, I don’t think it’s commanded
by the constitution or the Federalist Papers or
any original understanding. I think the senate is coequal
and the senate should, senators should apply their
view of the constitution and what kind of nominees to the Supreme Court are
consistent with that view. But I think in the past,
more senators had that. If you look at the debates
during the Bork hearings, the senate appears to be aware that they’re applying a
much more ideological test than they had been in the past. And there’s big, extended
arguments between both sides, particularly Senator
Hatch, for the republicans, and then Senator Biden, for the democrats. And Biden kind of makes the
case in those arguments, that applying that ideological test is something that we can do, but it’s kind of in
extraordinary circumstances and he has all these
factors that he lays out, why the Bork moment was extraordinary, the court was narrowly
divided on important issues, that the White House was
motivated to push the judiciary in a particular ideological direction. A lot of the features that
he mentions as extraordinary, are now kind of just part of the furniture that we’re used to. I mean this is sort of
always the situation. So I don’t love where we are, I do think it’s kind of unavoidable, because we have this remarkable
partisan polarization and judicial philosophy polarization. I mean it simply doesn’t have to be that if you’re a
republican I probably know what you think about
guns and how you believe the Second Amendment
should be interpreted. I mean, those are three separate questions that maybe a couple generations ago, your answer might not be
predictive of the other, to one might not be
predictive of the other two. I do worry about where we are. I think we should, the senators should be more
frank about this division, rather than kind of resorting to cheap mischaracterizations of cases, to score political points. So democrats might hit republican
judges for some outcome, where a sympathetic plaintiff loses and make it sound so cruel and heartless. Republicans might hit democratic nominees for letting a criminal off. As though this person is pro-criminal rather than having ruled in a
serious procedural question. We could do with less of that. I don’t know how we’d get there, but we could do with less of that, because it doesn’t really change
the outcome of these votes. And the other, kind of just note I wanna close on my worries,
is not just to this vitriol, but I don’t know how this
functions in the future, if we start seeing sustained
periods of the White House and the senate controlled
by different parties. It’s very hard for me to imagine a Supreme Court nominee
getting confirmed today, after the Merrick Garland experience, but I think we would’ve arrived there, had that not happened. It’s very hard for a member
of one political party to vote for the Supreme Court
nominee of the other party. And just so many of the questions that divide us sharply
as a nation politically, are ultimately decided
by the Supreme Court. And if you care about
whatever your top issue is, if it’s civil rights or abortion or guns, these are things that
motivate millions of people, millions of voters, and to just give away the
question to the other side, via the Supreme Court, seems inconceivable to me for a senator. So I don’t know how the system reacts if we have a sustained period
of one, two, three, vacancies. – I should mention before
turning to Kristine, when I was in the White
House, I hear the phrase, elections have consequences, a great deal, typically from senators who came up to both tell me that
elections have consequences and also to tell me that they were going to oppose one of the
nominees of the president. (audience laughs) Kristine. – Were they saying their
elections decided one thing, but Barrack Obama’s said another? – Apparently. – So Bob I think you’re
gonna have to work harder to get us to disagree. Because so far– – I just got started. (audience laughs) – Because so far, I think
we’re all in agreement that if the test is what
Susan Collins laid out, which is deference to the president and the president gets to
consider ideology of the nominee, but the senate should not, I think we’re in a real problem area. I think part of the
reason the Constitution has two, both political branches, the two political branches, both involved in the decision whether to put someone
on the Supreme Court or the lower courts, is because there’s supposed
to be a check and a balance. And Susan Collins, the test she lays out, first of all, she herself, was complicit in Merrick
Garland not being supported. So for her to say that she
supported all of the nominees of President Obama, that’s
just simply not true. I don’t recall her once saying anything that Merrick Garland
deserved a hearing and a vote when he was pending for almost
a year to the Supreme Court. But secondly, I think it’s
a lot easier for a senator to say that they should
defer to the president when the president is of the same party. What I found particularly disappointing and a very difficult to listen to speech, was that she did not take into account how extreme this president is
and we know from her comments, she has had real concerns about
this particular president. So certainly deference to a president who is as divisive and as controversial as the current one we have, I think was disappointing to many people who had seen Collins before this moment, as a potential moderating voice and moderating influence in her party. But I think it would be a
mistake to adopt the notion that somehow the president
should get deference and be able to look at
ideology and the senate not. But the other thing I
do want to push back on is sometimes people talk about the senate should
only look at qualifications. I mean, I think they should
look at qualifications and the minimum
professional qualifications are not being met by many of the nominees we’re seeing in the last two years. The ABA, the American Bar Association, does a professional vet, which is a minimum professional standard, it doesn’t go into ideology, of all judicial nominations nominated to the Article Three Federal Bench, and they have found several recently, that are not just not qualified because they haven’t practiced
for more than 12 years, and many of them have not, but they have found people
not qualified for bias. They have found people not
qualified for ethical reasons. They have found people not
qualified for work ethics. These are really stunning moments that in any previous administration, I believe, the person
would’ve been withdrawn. But instead what’s happening, because we’ve gotten to such a low point in the the judicial confirmation process is they just go faster and try
and get the person confirmed before the ABA report comes out, or try and get them through
their hearing, at least, before the ABA recommendation comes out. And that is something that,
even if you’re gonna have as low a standard as Collins
articulates in this speech, then she should not be voting
to confirm Steven Grasz to the, I believe it was
Kansas or Nebraska circuit, who was found not qualified for bias. So even with her low
standard of deference, the president can look at ideology but the senate should only look at some narrow views of qualifications, if that’s the standard,
there are several people who should not have been
confirmed over the last two years. I think the standard should be higher. I think people who affiliate
with known hate groups should not be confirmed to the bench. People who have clear ideologies that they are trying to
achieve on the court, who are clearly political, I think the senate should
take that into account and decide whether that
would be a good addition to the branch that’s
supposed to be apolitical. So I think even her
standard, she’s not passing, but I think all of us so far, agree that it should not
be that standard, that low. – Thank you. Professor Wheeler. – Well, in a sense you’ve heard everything that needs to be said on this. You just haven’t heard everyone
who’s here to say it, so. I don’t have much to add to what the other panelists have said,
and I agree mostly with it. Several points I think are worth making. One is that this is not
happening in a vacuum, this degradation of the
confirmation process, which you can date it back, I guess, maybe to the first President Bush, is just part of our polarized politics and a congress that has
trouble doing much of anything. And that shows itself
as well in the debates over whether judges should be confirmed. And I should add one other thing. Professor Pozen mentioned
this 40% confirmation rate, I suspect that’s based on
confirmations during the term in which the person was nominated. – I think that’s right,
non-confirmation rate. – Yeah, because we have a
phenomenon now of renominations, which, back in the Reagan
years, was just unheard of, but now routinely presidents
renominate individuals who don’t get any action
during the particular term. I think if we pull this
out a little more broadly, I think what’s going on and
I think it’s still going on, in terms of the district courts, which in a sense, are the workhorses of the Federal Judicial System, I think still what’s operating is senators of both parties are largely deferring to the president. The number of nay votes for most of even President
Trump’s district nominations, which the senate has not
been pushing, I should add, the number of nay votes, generally has been relatively negligible. I think the change we’re seeing
is in the courts of appeals, where very few of Trump’s
nominees get confirmed with less that 40 or so nay votes, and there’s a variety of reasons for that. And Kristine referred to some of them. That just illustrates that we’re in, I wouldn’t say a different era, but an era that’s just
been more intensified, because we have the
example of circuit judges who are being confirmed for one reason, and that is because the
party of the president is also the party that
controls the senate, and they’re just moving
those things through with little objections. I mean there’s only one
nominee who was withdrawn, in all the 40 or so that Trump has put up. Then on the Supreme court, that’s what most of the focus has been on. And there we have
relatively rare instances, but we see what’s
happening there is again, just very different
than what was occurring, say 40 or 50 years ago, before Thurgood Marshall’s nomination, the standard way to confirm
a Supreme Court justice was by a voice vote. There haven’t been any voice
votes since Thurgood Marshall, so this process has been
intensifying all along. Whether it’s a good thing or a bad thing is difficult to say. You could say we see a
breakdown of the norms of comody and bipartisanship, which
manage to staff the courts. Or you could say the senate’s
finally reasserting its role to actually participate in the process. One final thing, the senate has confirmed, I think, 29 circuit
judges so far under Trump. And 29 out of not many more
that have been nominated so far, it’s confirmed about half
of the district nominees. And the district nominees,
in a sense, that’s where the, in many places, that’s
where the real crunch comes. Because we can talk all
we want about ideology and the policy direction of the courts, but it’s on the district level that people are either getting
justice or they aren’t. And when you have vacancy
rates in the district court now upward of 111 and there’s
a lot of reasons for that. A lot of it has to do
with the failure to act on Obama nominees in the
final two years of his term. When we have vacancy rates that high, that’s really pinching people who just can’t get their cases heard, especially civil litigants and that’s an aspect of this process we pay too little attention to. In Texas, for example,
with all the vacancies in the Texas District Courts and the Speedy Trial Act Preference for trying criminal cases, civil litigants are just
left out in the cold. And thinking all that
talk about the standards for approving Supreme Court justices, we aught to keep in mind also, that the whole Federal Judiciary is an object of attention
and deserves more attention. – Gregg did you have– – I think we would do really well to think about district courts and appellate courts as
two separate categories. The job of district court
is both more vital every day to Americans than the others
and less ideological by nature. And that’s something that the partisan fights over district judges that have escalated in recent years, I think, is really regrettable. I just wanted to follow up on a couple of disagreements
with Kristine, too. I think Collins actually did
call for a vote on Garland. The objection may be she
didn’t actually fight for one, but she did say Garland should get a vote, for what that’s worth. And on the ABA, the ABA is just a subject of a big disagreement
between the right and left. Generally, I’m on the right side of this. Almost every republican in Washington used the ABA as an
ideological organization. I’m sympathetic to that. Beyond that, I think
their professional review is clubby, insular, and
bad for the process. So I just, I’m not a fan, I don’t think– – But does it trouble you when
they find evidence of bias, when they’re talking with
all the local lawyers who work with potential nominees? – It troubles me because
they don’t tell you any of the evidence they’re relying on, it’s whisper campaigns in local bars. I just, I’ve not been
convinced by their reviews. In terms of, in the
past from both parties. On top of that, one thing that I will say that maybe troubles, I mean I
can agree with you on a bit, on qualifications of some
of the Trump nominees. I think by and large,
they’ve been very qualified, I’ve been happy. But there’s been a few
nominations that I wouldn’t make and I think a lot of that
is driven by something which Professor Pozen and I
were talking about earlier, was this extreme focus on youth and getting the youngest
people possible on the bench, because it’s a lifetime job. And you want that person to either serve in this
job as long as possible or be around for a
promotion to a higher court. I think, in many cases, I just don’t think
someone in their early 30s is ready to be a district court judge. Youth on the appellate
benches, may be easier, a very smart law student might be able to do a job of an appellate judge, but a district court judge, no seriously, district court judge requires, I think, gravity and experience and the ability to manage a courtroom and deal
with witnesses and litigants in a way that five years of law practice does not prepare you to do. So I think that’s an unfortunate aspect of this process right now. – Can I just ask the panelists to, I’m gonna push a little bit on the ABA’s role here for a second. First of all, I wouldn’t say that I share the strongest objection that Gregg just articulated, but there’s less space
between him as a republican and me as a democrat on the ABA’s role, than you might think. I definitely have some
sympathy for the view that it’s clubby and I also
wonder if we’re not going to, it currently operates very
much in conjunction with or in support of, at
least for the presidents, unlike, say, George Bush, who had ABA review prior
to nominating the judge. It tends to sure-up the presidential’s claim
to deference, doesn’t it? Because then the presidents say, well I can’t imagine why in the world you would turn down this nominee who’s been rated well-qualified by the American Bar Association. If we were to see a frank acknowledgement that the deference
standard has been, at best, overstated and perhaps is obsolete, wouldn’t that suggest that the ABA role aught to be at least minimized, if not, potentially an argument
made that it shouldn’t have the visible role that
it’s had in the past? – I don’t doubt that it’s clubby. It is clubby, it tends to
favor law firm lawyers, and it frankly tends
to favor white lawyers. So you know, I think there have been some important studies
about some bias there, but it is incredibly unusual for them to vote unanimously not qualified for several judges on the kinds of issues that several Trump
nominees have had recently. Now you’re right that in
Clinton Administration and the Obama Administration
the ABA process happened before someone was publicly nominated. So that if you, as White
House counsel got a bad report that this person’s found unanimously not qualified for work ethic, I would imagine that would factor into the decision whether
to nominate that person. Whereas President Bush and
President Trump have that process happening after the
person has been nominated. So it’s a lot tougher for that person, then, to withdraw without looking like they’re validating the assessment. So if we are gonna talk about ideal norms, it is better to have that process earlier, or if we could come up
with a different person who would do, a different
entity that would do a minimum threshold
professionalism, reputation check. But republicans cling to
the rating if they like it and they ignore it if it’s
clearly disqualifying. And that’s the biggest problem I have. – When I was Chief Nominations Counsel, when Senator Specter was Chairman, and we had asked the, maybe I had a couple
of unqualified ratings on two nominees at the time, I think one was a circuit
court in the south and one was an African-American
woman who was nominated to be a district court
judge in Connecticut, and their top-lying conclusions were concerning and we wanted to know why. Can you share with us this information, I forgot what it was, if it
was bias or lack of experience, or lack of professionalism, and we said can you tell us
the basis of this decision, so the senate can make up its mind. They said, no, no, no, no,
it’s a confidential process, you can’t peer into what we
do, it has to be confidential. We said, well, we get
the FBI files on people with very sensitive information and we handle it like it’s top secret, can we do it in that way? So just the senate can
know, if this is true, we should be concerned
and their answer was, no, you have to trust us. And I just don’t think the
ABA has earned that trust, or that any outside organization
deserves that trust. – So let me just, before we sort of move away from the question of deference, I just want to ask the question of any panelist who’d
like to weigh in on it. At some point, this way, as you say, whether in the guise of
elections have consequences or whatever, the deference
standard was upheld. And now, there’s obviously,
it seems on this panel, agreement that it’s not
the correct standard. Some people have attributed this to polarized politics generally, or to shocks to the system, like for example, republicans would say, or the way the democrats
treated Robert Bork. And the Bork nomination was the beginning of the spiraling downward into the arrangement we
currently have, or excuse me, not the arrangement, because
it’s not an arrangement, but the situation we currently have, in which deference is clearly not paid, even if lip service is paid to
it and it’s a power struggle. Professor Wheeler, I guess
I’ll turn to you first, because I know that you’ve
expressed in some of our earlier, sort of preparations, for the panel, that you don’t buy the historical analysis that there was a sort of historical shock to the system and Bork changed everything. And I thought it might be illuminating to hear why you think that’s the case. – Well as a general principle,
I tend to be skeptical of any argument that but
for a certain incident, the landscape would look a lot different. I mean, but for the Bork nomination, the Senate Judiciary Committee would be sitting around
singing Kumbaya to each other. (audience laughs) That’s, well as I said earlier, what we’re seeing is a slow accretion, a change in norms, a change in practices, due to the polarization in
all aspects of our politics. The Bork nomination, which was
ugly and all sorts of things, was perhaps, a representation
of that change, a particularly vivid
representation of that change, but I don’t think had Ronald Reagan nominated Anthony Kennedy
at the start of things, that the situation today
would be much different. He nominated Bork and then, of course, he lost the Ginsburg non-nomination and finally nominated Kennedy, who got confirmed fairly quickly. But well, I’ll just
repeat what I said before, just because the Bork
thing was contentious, doesn’t mean that it caused the contention we’re dealing with now. If it did anything, it might
have been a slight catalyst, but I don’t think it can
be valued as anything more. – Any different views from
anybody else in the panel? We’re not looking to
signal historical events. – I think it’s hard to tease out the causal significance of Bork. It was, as Professor
Wheeler stressed, I think, symptom and cause of the
escalation that would follow. But I guess I agree with the bottom line, that whatever had happened with Bork, likely, we would’ve seen
this pattern of both sides becoming less likely to confirm
the other side’s nominees, just as a function of
increasing polarization. There’s a great deal of
political science evidence that the parties started
to polarize in a big way around roughly 1980. The polarization has been asymmetric, in the sense that republicans
have moved further to the right than democrats
have moved to the left. But under those background conditions, you were, I think, gonna
see mutual escalation of hardball in judicial
confirmation politics. I do think that in judicial
confirmation politics, as in other areas of
congressional practice, republicans have played
harder hardball on bounds, but the discrepancy
between republican hardball and democratic hardball, I actually think has been
less when it comes to judges than in other areas like
government shutdown politics or debt-ceiling brinkmanship, issues around voting and enfranchisement. So I think it has been a
pattern of mutual escalation. You have seen senate democrats being the aggressors in certain areas, innovating with, say, the filibusters of the second President Bush’s first term circuit court
nominees, like Miguel Estrada, Senator Harry Reid pioneering kind of proforma gavel in, gavel out sessions to block some nominees
of the second Bush term. And republicans have done a lot of things that I could characterize as horrible, most obviously and recently
the Merrick Garland, refusal to give him a consideration. But anyway, I do see us as flowing out of the background conditions of increasing polarization
and asymmetric polarization. And I just might add
that given the consensus that was developing on the panel, you can see the bind we’re in, because everyone seemed to say, senators shouldn’t be doormats, right, they have a meaningful,
constitutional role to play in reviewing judicial nominees, particularly Supreme Court nominees, given that Supreme Court is
a kind of super-legislature that touches on so many
issues Americans care about. And therefore, as non-doormats, senators should oppose
nominees whose jurisprudence, they think, would deeply
disserve the country and the constitution,
and given polarization, that’s gonna happen with
greater and greater frequency across the parties, that kind of belief. And I’ll go further and say, and senators will oppose those nominees. They may do it through
a sublimated language of qualifications and a
technocratic language of, like the ABA’s, when really their concerns are deeper and more
about the jurisprudence. So and given that polarization
and given divided government that we’re often gonna have, we’ve reached a point of impasse, where we really have profound dysfunction in how the confirmation process is likely to play out in
the foreseeable future. So I’m happy to talk
about where we might go, but I just wanna mark that
analysis, the diagnosis, provided by pretty much
everyone in the panel, suggests a truly pathological
equilibrium that we’re now at. – Can I just add that,
I think there’s a big, I can’t point to one area,
one example in the past, that I think started it all, but I think there’s a
really big difference between a fight, a
transparent and public fight over where a nominee wants to take the law or his or her qualifications,
or his or her fitness, to be an impartial judge,
versus the nontransparent, kind of systemic power
plays that we’ve seen. So I would put the Bork
fight in that first bucket, which is, there was a
good public discussion, more people got to
understand who this man was, what role he played in the
Saturday Night Massacre, what he had written about where
he wanted to take the law. And it was clear he had a real agenda, was not just going to sit dispassionately. And I think both Kennedy’s
Borks America speech, but also the hearings, were
a real public examination of what that meant. Put that in the first bucket. In the second bucket though, you have people like Chairman Hatch, who, in a nontransparent way, stopped more than 60 Clinton nominees from even getting a hearing,
even seeing the light of day. And to me, those are much more the power plays that don’t
get enough attention. Elena Kagan was one of them. Elena Kagan was nominated
to the D.C. Circuit, never got a hearing, never
got a committee vote, obviously never got a floor vote. Luckily for her, it worked out just fine, in a later administration. But the point is, there are these systemic not
on the nominee’s merit fights, which I think don’t get enough attention, but have been more
impactful than the handful of Bush nominees who were filibustered to the circuit courts. I mean we’re talking
about 12 to 15 of those, but we’re talking about more than 60 in the nontransparent, the
chairman just never scheduled for a hearing, never advanced nominees. And blue slips can fall into one or two of those two buckets, but my point is that I think
there are public moments where people are actually
paying attention, that tends to only be the Supreme Court, but the real power plays
are these not based on an individual nominee’s fitness, they are based just on the struggles. So refusing to move Obama
nominees for the last two years of his presidency
because Chairman Grassley had gotten the gavel and
Mitch McConnell wanted to hold open vacancies
for the next president. Whether that was Supreme Court, but it was all on the way down. I mean Chairman Grassley held hearings for five circuit court nominees
in one month last year. That is the same number
of circuit court nominees who got a hearing in the last two years of Obama’s term in office. Right, so it’s those things
that get very little attention, but that’s where I see the power plays and frankly, republicans
just much more aggressive in that power play, is not the fight over an individual’s fitness,
which is out in the public, public hearings, discussion about it, frankly, want more people
to care about those things. But there are these
behind-the-scenes systemic things that don’t get enough attention, but are really corrosive. – I think it’s really, I think
it’s completely a good point that we should think about these things in different categories. I just wanna point out,
as the republican up here, that this is not a partisan problem. I don’t think republicans have been more aggressive
in this category. The Deputy Attorney General
of the United States is not on the Fourth Circuit, because the democratic
senators from Maryland said he was just too
good of a U.S. attorney and they wouldn’t allow
him to have a hearing for the Fourth Circuit,
no hearing, no vote. With senators who conceded
that he was a great person. Peter Keisler, who was
Acting Attorney General in the Bush Administration,
he’s getting great press today for taking a stand against
the Trump Administration, is not on the D.C. Circuit because he didn’t get a hearing or process from Senator Leahy in the last two years of the Bush Administration. This stuff happens a lot. I don’t have the stats
on who does it more, I suspect it’s pretty even. Maybe the tramlines
are just getting worse. I agree that it’s unfortunate, I don’t know how to handle the problem. – Just one thing. I think that’s true, you can
pick all sorts of examples of what’s, some people
would say unfair treatment. What strikes me though,
are the bigger changes, which suggest that both parties are giving very little
consideration to what comes next. The democrats ended the
filibuster for circuit and district court nominees
and are now stuck with that. And of course, more recently,
applied to Supreme Court. Are now just stuck with that change. Now I think they had good reason to cut back on the filibuster, we can go into that if you want, but there’s very little
consideration anymore of what happens next. And then the other
example is really clear. Basically the republican senate in 2015, ’16, shut down
the nomination process. There was Merrick Garland
and there was Garland 2.0. 18 district judges, two circuit judges
confirmed in that period. Which is very different than
lamed up senates under Reagan, Clinton, George W. Bush in the final two years of
their eight-year terms. What now everybody’s wrestling with is, what happens when the democrats
are in control of the senate and the republicans are in
control of the White House. I’ll tell you what’s gonna happen, there are not gonna be any confirmations, it’s just gonna stop. But by doing what they did, with all due deference to
McConnell and Grassley, doing what they did, they
just set themselves up for a situation in which
payback comes along. And it just further
deteriorates the process and I don’t know what’s
gonna fix it, I gotta say. – So this is all a one-way ratchet, it’s just about who uses a
certain tool first, right. I mean when the democrats
started filibustering, President Bush’s judges, that guaranteed that republicans would start filibustering
President Obama’s judges and there’s just, we can talk about what kind of system we’d like, but it’s very hard to get
a member of either party to believe that refraining from some tool will earn you good will
from the opposite party, and they will also refrain
from using that tool, when it advantages them. It’s hard to do that. I worked for a while for Senator
Thune, who’s now the whip and he’s maybe the only
senator who ever got elected largely over nominations debates and particularly the
issue of the filibusters. And he too, found
himself eventually voting for filibusters of Obama judges, under, essentially, this argument. He may not have liked it, he may have thought it was
wrong that democrats started it, but that’s where we are now and you can’t turn the dial back. – Yes, I wanna turn now to the reform. The question, what you do about all this, because as Professor Pozen
said, “What happens next?” Before I do, I did wanna
make one observation, which is that we’ve been
drawing distinctions here between Supreme Court and
appellate nominations on one hand, and district court
nominations on the other, and I think that’s particularly important when you talk about what role
the senate thinks it has. In my experience, senators
believed that they had a major, if not overwhelming stake in
the district court nominations and a say in those nominations. And frequently, they will
not move on any nomination they themselves have not dictated, whether it’s emerged from some sort of sorting out process within the state, or whether it’s simply an
agreement within the delegation, or sometimes, even worse, nothing happens because the delegation cannot agree and then each side is
yelling at the White House for not getting the participants to the dispute to the combat, their wish. And some of that proprietary behavior, on the part of senators, has started to leech into
the appellate court field. I certainly saw in the White House, members who were starting
to make the same noises about the imperatives of having their political interests respected in the appellate court nominations, much like I heard it in
the district court sphere. So I just wanted to mention that, because there’s another institutional struggle there as well. – Can I just mention on that? Senator Grassley completely changed the blue slip rules for
circuit court nominees. He’s now moved circuit court nominee after circuit court nominee over the objection of
both home state senators. – That’s correct. – So that, even if it was
starting to, in your words, creep into the appellate
level, that’s gone now, because Senator Grassley, although he abided by
blue slip restrictions of not getting hearings
when Obama was president, he completely change course,
once Trump took office. – And I’ll just say, that’s true. I think it’s possible that
respecting the blue slip, the blue slip process may come back in some modified form into vote, just because the political interests on the part of members are
so powerful, but we’ll see. And certainly at the appellate
court level it’s in peril. By the way, blue slip referring to, if any home state senator
says, hey, that’s my call, they just won’t, so
called return blue slip and the nomination will not go forward, if that process is respected by the leadership of the senate. And that’s been laid aside,
as Kristine just said. Let’s go to reform. I’m gonna start on the
left with Professor Pozen. I’d like you to talk a little bit about what are the different ways
that we break the stalemate, what are the avenues? And then go through panelist by panelist, what thought do you have, if this current arrangement is just fundamentally unsustainable, but we’re operating in
a polarized environment, which makes the path to a
solution seem very unclear, where might we go? – Thanks, so there are two kind
of pie in the sky solutions that seem to be in circulation, and I think they’re related and
I have a preference for one. So the first way out of the stalemate might be to ratchet up
hardball even further and engage in court packing at a time when a party, I’m picking particularly
the democratic party, had sufficient power in
congress and held the presidency and could do that. So there have been a lot
of calls for court packing, probably everyone in this room
has hear some of those calls since the Kavenaugh confirmation. I’m sympathetic to the impulse, as Kristine says, it’s
a very plausible story that there’s been harder hardball on the republican side in recent years and the Garland seat being the
most obvious recent example. But more generally, a
majority of the Supreme Court has been appointed by
a republican president, a majority of the
justices, since May 1969. We’re about to hit 50
years of the Supreme Court having a majority of
the justices appointed by a republican president. In a period in which there have been five democratic
presidential terms served, the senate has been
controlled by democrats more than half of that period. Democratic presidential candidates
run a majority plurality of the presidential vote in six
of the last seven elections. I could go on, there’s a profound mismatch between the ideological
and partisan composition of the court and the actual
politics of the country and democrats have been on the
losing end of that for years. So it’s a dismaying situation situation, if you identify as a democrat. Court packing, however,
this is the proposition that should democrats take control of congress and the presidency in 2020, they would add two new
seats to the Supreme Court and fill them, of course,
with democratic justices and in this way, rectify this imbalance. But as Gregg was suggesting,
once a tool is used, it can be hard to contain it. Court packing, of course, could be used by the other
side in a future period. It comes with a bit of a historical taint, given the failure of
FDR’s effort in the 1930s. It is worrisome from a judicial
independence perspective. It’s a dangerous game
to play, court packing. Although again, I strongly sympathize with the impulse here. So that’s like taking hardball further, that’s one way out of our impasse, at least with regard to Supreme Court. The other, kind of opposed way, which I’ve called in some writing, the anti-hardball solution,
would be to change the judicial nomination system altogether, in a way that’s meant to
deescalate the politics. What would that possibly look like? I think it would look like what most of the rest of the world does, which is not life tenure
for Supreme Court justices, which creates all kinds of bad dynamics. Justices get to time
their own retirements, so that a sympathetic president
can appoint their successor, there’s incentive to
appoint really young judges and justices, ’cause
you want them to stay on as long as possible,
there’s just arbitrariness. You know Jimmy Carter, not
getting one Supreme Court pick in his presidency, which
is still a disaster we’re living with for democrats, and that was just the
bad luck of the draw. And the fact that someone
has life tenure, of course, just increases the stakes of
any given confirmation fight and makes it this blood battle
that we’ve been describing. So there are a lot of proposals
that have been out there for a long time by academics
on the right and the left. A common one would have the
justices get 18-year terms. Each president serving a four year term would get two picks and then to comport with the constitution’s
guarantee that you hold your job as an Article Three judge
during good behavior, you wouldn’t get kicked off
the bench after 18 years, you’d transition into some
sort of senior status. There are a lot of different
variants on this proposal. There is a debate about
whether it would be consistent with the good behavior clause
of Article Three, Section One and also with the appointments clause, you know, if you’re transitioning
off the Supreme Court where you need a separate
appointment from the president or not is a tough constitutional question, but it’s at least plausible that a statute could be designed consistent with those two constitutional provisions that would move us away from life tenure, toward a fixed term on the Supreme Court. And that would, I think, lower the temperature on
a lot of these debates and potentially get us
to a healthier place. Okay, last quick comment is, of course, how would we ever get there? Given our fractious politics, would we ever get to this kind
of good government solution, which I do think a designer would opt for in the first instance. I don’t think anyone would
choose our life tenure system, if they were designing a judicial confirmation
process from scratch. And evidence of that is
that the rest of the world doesn’t do it, they’ve learned
a negative lesson from us. Okay, so how do we get there? Well there, I think, court packing in a kind of paradoxical
way, may come back in. It may be that there has to
be a credible enough threat of the hardball option of court packing to get both sides to the bargaining table and actually get any
momentum around these bills, which have been out there for years to move to 18-year terms
or some variant thereon. So I think the best case for court packing is if it could change
the bargaining dynamics around breaking out of our
current system altogether. In any given period, whoever controls power doesn’t want to change the procedural status quo, but if republicans really
feared that democrats were rising and might
actually pack the court, maybe there’d be the possibility
of a deal to be struck. And by the way, you could phase this in, the 18-year proposal, so it
doesn’t take effect immediately, in case there were concerns about that, a so-called sunrise approach. So have it take effect in a future period, in which we can’t know
who the president will be. So it’s really not a question of design, again, these kind of well
thought out proposals have been around for a long time, it’s how could we ever get the politics to accommodate this seeming on the wall and I wonder if court packing rhetoric, court packing threats
has a role to play there. Much as I worry about court packing. – Gregg? – Thank you. That’s really thoughtful, as usual. Just a couple quick notes
on what the professor said. First, it’s true that republicans had the benefit of the calendar and appointed more Supreme Court justices over the last 50 years. Republicans have also been much less lucky in having their nominees
perform as they’ve hoped. As things go forward. I can’t think of a high-profile,
ideologically divisive case in which a democratic
nominee disappointed the left that’s occurred since
maybe Roe versus Wade. And this has happened a
lot on the republican side. Just sort of interesting,
we could speculate why. No, the rest of the world
doesn’t model their judiciary on ours or their selection process, remarkably, neither do the states. New Jersey is the only state
that follows the federal model out of all 50. I don’t know that that’s definitive. I mean, I think our fellow judiciary is actually pretty impressive
and maybe more impressive than a lot of the state
and foreign judiciaries, but that is what it is. On the proposal of terms for the justices, I’m open to it. I’m not sure that I’m
convinced that it does more than take down the temperature a notch. I don’t know if it’s transformative. I think that, fundamentally,
the problem still is that the federal government does too much and the Supreme Court is too,
or the judiciary is involved in too many areas that really should be resolved by the political process. And so long as that’s true, I think these fights are gonna be ugly. Just maybe, better scheduled. Which points to a couple
of things I might say. One, I do think it would be helpful to cleave out the district courts and the senate could have some rules that would have guaranteed
judicial court nominees would move on a better calendar and get votes more quickly. That, I think, would be helpful, just to litigants in our country. But to solving the Supreme Court problem, one other idea that’s out there that some on the left and
the right have talked about, which is, I’m not necessary endorsing, but just something to think about, is jurisdiction stripping. Is the right and the left coming together and talking about areas
the court’s involved with that they don’t like and the courts playing a
kind of majoritarian role and you compare issues like
this on the left and the right and come to agreements that we’re gonna, the court’s not gonna be the
last word on abortion anymore, it’s also not gonna be the
last word on campaign finance. Those are probably not
equally weighted issues, but this sort of idea. And that’s starting to bubble
up in the academic world now and it could be something
that becomes part of our political conversation. I mean, again, if the real problem is that we’re just so
divided on these issues that the court is involved with, maybe take the court out of that. They really are a small
percentage of cases that the Supreme Court
rules on every year. – Kristine? – Wow, that scared me. Jurisdiction stripping, you know, the history of it in this country, at least the most recent
jurisdiction stripping attempts in the senate, I remember Senator Leahy often told me the story about how it’s one of the few things that he and Barry Goldwater
agreed on, full stop, was fighting Jesse Helms
and Strom Thurman who tried to strip court jurisdiction
from desegregating schools. So it’s got a really ugly history and so the notion that
someone’s civil rights shouldn’t be determined
by an independent court, but instead, should just be determined in the political branches. I think that’s a little, I think that’s a, well, that makes me nervous. – It’s a conversation that’s out there, so I was just pointing to it. – The selection process needs to be fixed. So I mean, the pre-nomination process. So one thing I will say is I think it’s gonna get
worse before it gets better. And maybe we’re headed
to a Watergate situation in our democracy, we are clearly headed to a Mueller versus Whitaker crisis. And maybe in the wake of that crisis, there will be some rethinking about the importance of
protecting our democracies and importance of
protecting our institutions, especially ones that hold accountable a president who tries
to tear them all down. So I think it’s, frankly, gonna get worse before it gets better. And there will need to
be a reform movement that isn’t just looking at the courts, but is, instead, looking at all the democracy-preserving things that serve as a check on
an individual president. So you might see those types of things, but I really think the selection process could use some reforming. So to the extent that it’s senators choosing their college
roommate, that’s a problem. If there were better in-state, closer to the communities commissions, and some states do have commissions, Wisconsin long had one that
was a bipartisan commission and it recently got hijacked and now it doesn’t serve
the role that it served for all the years that Senator Feingold and Senator Cole abided by, during the Bush Administration
and the Obama Administration. But you could have better
process so people have more faith that, at least for
district court nominees, that you are really getting
someone who is of the state, is immoderate, is not trying
to bring a political agenda to the bench, then that might be a way to bring the temperature down. But that will only work if senators recognize their
institutional interests. And that’s what blue slips were. It was senators realizing that if I let President Obama run over me, who else around here in the senate can I get to fight on my side, that might be of his same
party, that could influence it? So the blue slip, the demanding that home state senators have a very active role, especially in the district court level, had a lot to do with the
senate asserting itself, its institutional role. That is gone, over the last two years that has been eviscerated
by Senator Grassley. Maybe if Lindsey Graham
takes over the gavel, he will re-implement that. But it really is the Chair of
the Senate Judiciary Committee who could dial down the temperature, could help by re-instituting that, so that there wasn’t as much fighting at least at the district court level. – Professor Wheeler? – I am reminded of an observation of the former dean of this
law school, Arthur Vanderbilt, later the Chief Justice
of New Jersey, who said, “Judicial reform is no
sport for the short-winded.” (audience laughs) And you think back… Well, my bottom line is, I don’t think this
thing is gonna get fixed until both parties realize
it’s in their interest that they’re more damaged by the situation than they are benefiting from it. And I don’t think we’re anywhere close to that situation yet. I think, for example,
shortly after the Civil War, it was pretty obvious that
the federal judicial system was not operating in any
sort of a decent way. You had mandatory jurisdiction
in the Supreme Court, no intermediate courts of appeals, the district courts, which
were courts of last resort, in more ways than one, and a Supreme Court that
was heavily backlogged. It took 25 years to fix that, even though everybody realized that something had to be done. But there were interests
operating underneath the surface, that just prevented
anything from happening. I think the same thing is true here. I’m intrigued by many of the suggestions that were just made. I don’t think, by the way,
that these vetting committees, I’ve looked at them and
I can’t find any impact that they have on time denomination or quality of nomination, but
that’s a different matter. But some of these fundamental
changes, for example, the suggestion that we
threaten term limits as a way of encouraging just
a toning down of the process, that might work, but I
don’t think, as I said, I just don’t think anything’s gonna work until both parties look at this and say, we just can’t keep on going like this, it’s just doing too much damage to us in all sorts of ways. Put aside the public
interests, our own interests, as republicans and democrats, we just don’t perceive
this as positive anymore. And I don think we’re
anywhere close to that. On that happy note. (audience laughs) – Yes. So the panel has not been
hostile, it’s been gloomy. (audience laughs) We’ll go to, I think
questions at this point. And I think, is there a microphone? Yeah, there are microphones on both sides. – [Woman] Yes, we have
microphones on both Sides for anyone who would
like to start to line up. – [Audience Member] Hi, I think
it was Mr. Nunziata who said that you thought that a
lot of judicial decisions should be left to political process rather than being
decided in the judiciary. I, and a generation of
people I grew up with, went to law school because
of Thurgood Marshall and Brown versus Board of Education. I’m from Baltimore, Thurgood Marshall lived in my neighborhood, I knew him. And I worked at the NAACP
Legal Defense Fund one summer and he came up, took us out to lunch, and just riddled us with
stories about appearing before district court judges
in Alabama and Mississippi. But he told us that the one
thing that he always knew, was that if he got to Washington somehow, what happened in the Court of Appeals in Arkansas or Atlanta
didn’t matter anymore. And he did this when he was arguing and not when he was sitting. So I think, until we actually get to… Do you think that the problem we’re having is more that we’ve become a
divided country, politically? People I was in law school with told me that they predicted a day
when the federal society would actually get to a
point of sending a president Court of Appeals nominees
in their 30s and 40s, who had written a lot of things,
who you could not predict, you could predict, would
not probably change as they got older and I think
that’s where we are right now. But the question is, do you think that you
can fix the judiciary? When this constitution was drafted, no one thought that a lifetime appointment didn’t mean 40 years on the Supreme Court or 40 years on the circuit court, it meant a person was probably going to not be around that long. But now we’re looking at
people who have been asked, how do you feel about gun control, how do you feel about Roe,
when they’re 40 years old, and that’s the person
that you want nominated, because you want that to go on forever, even after we’re gone. So can we fix this without
changing us as a country? Thank you. – Thank you. I’m pessimistic about all this, right. Yes I think a lot of these problems stem from how divided we are as a
country on a range of issues and I think there are other
systemic problems here, such as, I think, congress
retreating from its role, and deferring to the courts far too often. So I don’t have a solution. And I wasn’t suggesting that jurisdiction
stripping is the solution, I was suggesting that it’s something that’s going to become more and more a part of the conversation, particularly if we do have a judiciary that becomes more and more right-leaning, when the popular vote becomes
more and more left-leaning. So, and I do have thoughts
on that issue too. – Let me just say briefly, I don’t think jurisdiction stripping should be categorically off the table, although, maybe in certain
rights areas it should be, but in general, the general
population, I think, it’s plausible, there’s clear
congressional authority, there are ways it might be done, that would lay the civil rights concerns and have a salutary effect. Although the history there doesn’t give great reason for optimism. But you also made a point about longer terms that are being served. I have just a little data on that from a study published a few years ago, finding that between 1789 and 1970, the average Supreme Court justice’s term was under 15 years, one five. Since 1970, it’s been over
26 years, average tenure. So it’s a, not just a quantitative, arguably a qualitative
shift in what it means to get a Supreme Court appointment, when you’re serving nearly 30 years. And I think in a democracy, to have that lack of turnover
is troubling in itself. – Kristine or Professor
Wheeler, any thoughts? – No. – Sir please. – [Steve] Yeah, so I
probably should tell you who I am, I’m Steve Susman
from Houston, Texas. For eight years, I served as the Chair of the American
Constitution Society, Judicial Nomination Task Force. And for about half that
time, or maybe longer even, I have been a member of the Judicial Nominations
Evaluation Committee for the two republican senators in Texas. I am, indeed, probably the
remaining sole democrat and plaintiffs lawyer on that committee. It is amazing how a good group
of lawyers, around a table, whether they are republican or democrat, can come to a consensus on who is the best qualified to be a trial judge. And we do it, and thus far, the senators, we have a dispute between
our senators in a way, and the dispute that’s going on, which I think is now
broken out in the public, is whether a trial judge should know about how to try a case
or whether it’s okay for a judge to be appointed, a United states District Judge who has never seen a jury trial, never conducted a jury trial, and we have some of those now that are being recommended by the
White House and the senate. And there’s a dispute
whether that should be done. And when it is done, it
alarms the republican lawyers on this committee, as much
as it does me, the democrat. So here are some things that you can do and need to be done by academics
and the Brennan Center. You should come up with a model
process for senators to use when they appoint committees
to advise them in our process, which is very, I mean the process, I feel free to talk about, which is the senators announce
that applications are open, and anyone who wants to apply, fills out this impossible
application, 50 pages long. So one of the things you aught to do, is come up with a model application, that has the crucial material
that can be gotten to quick. How do you appoint
members to the committee? Should it be balanced between
republicans and democrats? Obviously it should be. And I think you could get, even republican senators
and democratic senators, to a degree, on that change. That good lawyers, practicing
lawyers in the community, you put four democrats and four democrats, or forty democrats,
whatever the number is, you evenly divide it. One of the things, one of
the reasons that works, the process works, is
that it is confidential. And even though I am not a supporter of the senators who appointed
me to the committee, I would never tell you what
goes on in a committee meeting, ’cause I am sworn to secrecy
and it’s done in private. One of the things that could be done, would be a recommendation that the hearing process
be a private process. There’s nothing that requires
that process to be public. In Israel when they appoint judges to the Israeli Supreme Court, and they are a society very much like us, torn by very much similar issues, they don’t have anything
like the Kavanaugh hearings or the hearings we’ve been through, because they are private. There’s a committee of lawyers and judges, members of the Knesset,
that makes recommendations, but those hearings are all confidential. So why do we keep, why do you have to have
these hearings public? They could, I mean I think
the senators meet periodically on highly sensitive material, the public, cameras are not allowed in the room. It’s become a television event. And of course it’s
gonna become politicized as long as it’s publicized. So that can be changed
and maybe the democrats and republicans would agree that that’s a change that should be made. But then you have, you tell
them how to appoint committees, you have a model application for them, you tell them about how those
committees aught to vote. Should it be a public vote, I mean should they vote secret ballot, should the vote be announced,
what the timing of everything? Rules, because otherwise, the senators don’t have
anything to go buy. And they do the best they can. And the one who’s most interest,
if there are two senators, the one who’s most interested in, in Texas I think there’s no question that Senator Cruz is the most interested in putting people like Senator Cruz. And these people, you see
them coming from a distance, they clerk for Scalia, Thomas, Alito. They are totally qualified, except, they’ve never tried a case,
they have never seen a trial, they don’t know what motion limine is, they don’t know what is,
or a Daubert motion is. These are things that are foreign to them. And they are now being sent, dispatched, to small towns in Texas, which
have a single federal judge. They have never, a lot of carpet bagging, that’s another thing you
can make recommendations on. Should we be appointing district judges to go to a town where they’ve never lived. Someone who’s worked for
an institute in Washington who clerked for the Supreme Court, what business do they have
being on the trial bench in Lubbock, Texas, or Midland Texas? And these are questions that we discuss in our
committee, by the way. And it would be helpful to have
some model recommendations, get 10 law professors, five
republicans, five democrats, get the Brennan Center to sponsor this, and begin with the lowest
court, the trial court, because what these 30
year olds that are getting on the trial court are gonna be, they’re the next appointees to the circuit and the next nominees
to the Supreme Court. So you can see what’s happening. – Thank you very much,
that’s very helpful. I don’t know that such
a model process exists, I don’t know that I’ve ever seen one, or that anybody has
actually sketched one out. So that would be, actually,
a very useful project. Yes sir? – [Audience Member]
Yeah, this is a question for Professor Pozen, but I would welcome
anyone’s thoughts on this. To your proposal about term limits, I guess the question I have, aside from the constitutional issues of appointments clause
or for cause issues, is what would you do about
the revolving door problem. I mean, for the most part, we’ve had federal judges who don’t go back into private practice. If you had a term limit
for Supreme Court justices, as well as the fact that their recusal
standards are self-policing, wouldn’t you be sort of politicizing both their time on the bench and after? I’m just curious about
your thoughts on that. – Two-fold answer, thanks. One is that an 18-year term
may well be long enough to allay the most serious
concerns about the revolving door. That’s a long term, 18-years. Indeed it’s longer than the state Supreme Court justices
have by way of comparison. And other countries use similar terms for their highest court and seem to find that concern manageable. But the second, and kind of better answer, is that the way in which
you reconcile the proposal with the guarantee of
office during good behavior, the life tenure guarantee
of that work term, using the constitution, is
that you still get to be an Article Three judge after 18 years. So the only thing that’s
time limited to 18 years is your service as an active
justice on the Supreme Court. And under different proposals, either you become an inactive
justice after 18 years or you could serve on a circuit
court under other proposals. But I think all the
proposals, so as to allay the good behavior clause
constitutional concern, let you still be an Article
Three judge, past the 18 years. And therefore, deal with the
revolving door concern as well. – Any other comments from the panelists? And I think we have time
for one more question. Any other comments on that
point from the panelists? – I think you raise an important point, because ethics and a growing concern that judges are perhaps
not dispassionately applying the law, but instead are thinking about their sponsors who got them there. I think there is a growing ethics concern with the existing Supreme Court, without even having them be able to leave and go work either for
a company or a firm. So I think it’s a good concern I hadn’t heard raised before
to the term limit idea. – Yes? – [Audience Member] So I’m
curious what your thoughts are about Chief Justice Roberts
recommending an investigation on some allegations on Justice Kavenaugh a week after he was confirmed. Have you heard anything
about what happened with the Tenth Circuit
and those allegations that have been requested to
be researched, investigated? – So my understanding of the law is that no lower court
judge could punish or enact any sort of findings against a sitting Supreme Court Justice. So I think the timing of the referral, may have itself, mean it’s
going to a dead letter office. It’s not, as far as I know, it’s not something that Judge Tymkovich would have any ability to
discipline or investigate a sitting superior of his, which is one of the nine
Supreme Court justices. – Supreme Court justices
aren’t covered by the act, that’s the point. The act defines judges in such a way that it doesn’t include
Supreme Court justices and got transferred into the
statute to the Tenth Circuit. I was wondering myself, why
we haven’t seen anything yet, because I think it’s
an open and shut case, but then I recalled that the Judicial Conduct Committee
of the Judicial Conference has to pass on decisions
of the circuit court judge, just as a matter of routine, for reasons we don’t have to go into, and I imagine that’s the
process that’s going on now. But I think the day’s
gonna come pretty soon in which the chief judge
of the Tenth Circuit simply concludes the proceedings because there is no,
they have no jurisdiction over Justice Kavanaugh. – And I’ll just add that I do think there are going to be
things that come to light, that senators would’ve
factored into their decisions, but because Brett Kavanaugh’s record as a public operative
in the Bush White House was deliberately hidden, senators didn’t have it in front of them. So I think your question
goes to the timing and possibly suspiciousness of
the delay of referring that, and I have no idea what the charges are in those allegations. But I can absolutely see that with the Presidential
Records Act time expiring, there will be more
publication of the record that should have been
in front of the senate before it voted on the
confirmation of Brett Kavanaugh. – Kristine, can I put you on the spot and ask what you think of proposals in the spirit of democrats,
that the house should, in the coming two years,
investigate the various aspects of the Kavanaugh allegations against him, or do you think that would be a bad idea? – So I have concern as a general matter, about judicial oversight by
the House Judiciary Committee, because of some memories of what happened in the early 2000s, where
judges were called in front of the committee to talk about
why they departed sentencing. So I come to it with some reluctance of oversight of the Third
Branch, but in this instance, there were some real
concerns about process, what the FBI was restricted,
in terms of its investigation. And also, there were some
other very serious allegations that will, I think,
unfortunately lead to people having lower public faith
in the Supreme Court, so I think that oversight
of the Third Branch needs to be carefully done, not how it was done 18 years ago. But I do think that there are
a lot of unresolved questions for one of the nine most
powerful people in the country and I do think that there
will be some oversight of it. – Just thought I’d look in your direction. Do you have anything to say to that? I mean you don’t have to. – There are a lot of open questions about the whole Kavanaugh affair. Sometimes when I talk about the process of
judicial nominations, I take, I pause to talk about one
thing that works really well, or relatively well, in my experience, is this background investigation process. When I was on the Hill I worked daily with Kristine’s colleagues
in Senator Leahy’s office on reviewing the
backgrounds of nominations and I thought we did
a pretty thorough job. It was never politicized,
nothing ever leaked, my colleagues in Senator Leahy’s office, knew embarrassing details
about the private lives of prominent republicans
and never told the press. I mean it worked really well. Something went wrong in this process and I wanna know what, and I think the senate
needs to figure it out because it needs to work in the future. The solution to this stuff
spilling out in public is a White House stopping to share the FBI files on nominees, which would hurt the process even further. So I hope they work that out
and I hope they correct that. It’s a separate bucket of issues, but I think the background review is really, really important and it needs to be professional and it needs to be bipartisan. – Well with that I’m
gonna conclude the panel. I wanna thank the panelists, it was a conversation marked
to a refreshing degree by civility and thoughtfulness. I’m heading back to D.C., where I will not be exposed
anymore to that behavior. So I thank you very much
all of you for coming. (audience applauds)

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