The Supreme Court Under President Trump

Episode Notes

Transcript

Lawyer 2 Lawyer – Law News and Legal Topics

The Supreme Court Under President Trump

12/21/2016

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Carrie Severino: All of our Constitution embodies, I think, both sides of the political spectrum. As long as we have judges who are going to be faithful to that document, I think we are going to have a great next few decades of jurisprudence that’s going to defend those freedoms. So I am really optimistic.

Nan Aron: He could really change the landscape of the judiciary in a huge, huge way. And obviously for public interest civil rights groups, there is a great deal of fear, a great deal of concern.

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Intro: Welcome to the award-winning podcast Lawyer 2 Lawyer with J. Craig Williams and Robert Ambrogi, bringing you the latest legal news and observations with the leading experts in the legal profession.

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J. Craig Williams: Hi. I am Craig Williams, coming to you from sunny and a little bit cold Southern California, nothing like Massachusetts, I am sure, Bob. I write a legal blog called May It Please The Court. Bob.

Bob Ambrogi: And this is Bob Ambrogi, coming to you from outside of Boston, Massachusetts, where I write a blog called LawSites. I also host another show on the Legal Talk Network called Law Technology Now, along with Monica Bay.

And before we get started with today’s topic, let me just take a moment to thank our show sponsor Clio. Clio is the world’s leading cloud-based legal practice management software. Thousands of lawyers and legal professionals trust Clio to help grow and simplify their practices. You can learn more about them at  HYPERLINK “http://www.clio.com” clio.com.

J. Craig Williams: Well, Bob, after a fight to the finish in this recent election, Donald J. Trump has been elected President of the United States. And with that presidency comes the role of appointing some justices to the Supreme Court, at least one right now, potentially more as time goes on.

Bob Ambrogi: Of course this past year, Judge Merrick Garland was nominated by President Obama to replace the late Justice Scalia and was met with resistance by the Republican Party, leaving that vacancy unfilled. Scalia’s decisions have been extremely close on landmark cases that shape the law in significant ways and will continue to be until that vacancy is filled, and as you suggest; others as well.

So who will Trump choose here and who will Trump choose perhaps in the future as well and how will the next four years shape the court for perhaps years to come. We are going to talk about that and more.

J. Craig Williams: So Bob, today on Lawyer 2 Lawyer, we are going to take a look at the Supreme Court under the newly elected Donald Trump. We are going to discuss his choice of justices, specific cases, the impact his choices will have on the law of the land.

Bob Ambrogi: So joining us today are two guests to discuss these issues. First of all, I would like to welcome to the show Carrie Severino. Carrie is Chief Counsel and Policy Director of the Judicial Crisis Network. In that capacity she has testified before Congress on assorted constitutional issues and briefed Senators on judicial nominations. She has written and spoken on a wide range of judicial issues, particularly the constitutional limits on government, the federal nomination process, state judicial selection.

Welcome to the show Carrie Severino.

Carrie Severino: Hi. Thanks for having me.

J. Craig Williams: And Bob, our next guest is Nan Aron. She is the President of Alliance for Justice. Nan is a nationally recognized individual for her vast experience in public interest law, the federal judiciary, and citizen participation in public policy.

Prior to founding Alliance for Justice, Nan was a staff attorney for the ACLU’s National Prison Project, where she challenged conditions in state prison systems through lawsuits in both state and federal courts. Welcome to Lawyer 2 Lawyer Nan.

Nan Aron: Thank you, pleased to be here.

J. Craig Williams: So let’s first start with just your basic reaction to Trump as our President-elect and then how you believe the pending appointments are going to be handled. Carrie, let’s start with you.

Carrie Severino: Yeah. I was really excited to see the landmark decision by now President-elect Trump to put out a list of judicial nominees or potential judicial nominees for this open Supreme Court seat. I think that’s something we haven’t seen a President do before and it’s something that I think is a great development, because the Supreme Court nomination process is one of the most long-lasting impact any President is going to have. And I think we don’t spend enough time talking about a President’s judicial philosophy and a judicial approach in most elections. This year was a real outlier and I think Trump’s list really had a lot to do with it. I think the leadership of the Republican Senate in giving the people a voice in this seat also had a lot to do with it.

(00:05:02)

And that’s why we saw this really unusual situation where fully a fifth of the electorate said that the most important issue for them this election was the Supreme Court vacancy; that’s incredible, that’s got to be historic. And those voters voted decisively for Trump.

So I think all of those are reasons that this Supreme Court vacancy is going to be really at the top of his list coming in, and I am excited to see what happens as we find out who from this list is going to be the next nominee.

J. Craig Williams: Carrie, do you see this as a mandate for Trump given that the popular vote is upside down?

Carrie Severino: Oh absolutely, I think this is something that is one of the most important things that he is going to be doing, and I think when you look at the importance of this issue for those who came out for him, I think it’s still something he absolutely has a responsibility to do. The people who voted for — who felt this was an important issue voted decisively for him, and the people who felt it was less important actually voted for Hillary. So to the extent that people voted against him on this, it wasn’t because of the Supreme Court. So I think for the people who care about this issue, those I think are really decisively on his side.

Bob Ambrogi: Nan, I happened to catch both of you on C-SPAN over the weekend talking about this very issue, both you and Carrie were on C-SPAN. And clearly you expressed a feeling that the list — you are obviously not happy with the list of the 21 potential nominees that Donald Trump has released. But Nan, before we talk about the list, I am wondering if you could just kind of speak to your feeling about how important the next four years might be in shaping the Supreme Court, maybe not just for the next four years, but for years beyond that.

Nan Aron: Well, President-elect Trump has enormous power to shape, not just the Supreme Court, after all we will have during his four years three Supreme Court justices in their 80s, so he could actually appoint not just one nominee for the court, but maybe several more. But let’s not forget that we are not just looking at the Supreme Court, we are looking at almost a 100 seats he could fill on the lower courts; District Court seats, Court of Appeal seats. So he could really change the landscape of the judiciary in a huge, huge way.

And obviously for public interest, civil rights groups, there is a great deal of fear, great deal of concern. This is an individual who when running for the President attacked some of our best known legal figures in America. He attacked Judge Curiel of San Diego, who is overseeing two class actions against Trump University, called him a hater. Falsely saying he was a Mexican.

He summoned the power of the Second Amendment people to commit unnamed acts against Hillary Clinton. So I would say that maybe this was a way to get attention, maybe this was a way to win support from key constituencies, but we are certainly looking for signals that he did not mean those statements.

Having said that, his selection of Jeff Sessions for Attorney General is not the kind of signal that I think Americans are looking for in terms of an Attorney General who will administer the law in a fair and equal way.

J. Craig Williams: There was a recent editorial by Erwin Chemerinsky, probably one of the most well-known liberal deans of law schools in the country, who essentially said we are going to be going backwards over the next four years with respect to all of the gains that have been made in the civil rights cases, as you note Nan.

Carrie, what’s your perspective on what’s happening with the law of the land as we go forward?

Carrie Severino: There has been a lot of scaremongering in this campaign all around, and I think it is way, way overblown from these concerns that Nan suggested of Senator Sessions. I am not sure who thinks he would be the kind of consistent, honorable public servant he has been throughout.

For example, he is someone who has served when he was the District Attorney in Alabama, he was receiving death threats for prosecuting KKK members. I mean, this is someone who has really put himself out there in the cause of justice, and in particularly the cause of civil rights, so trying to drum up frightening images is not really helpful here.

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I think, absolutely, we are going to see a continued commitment to the rule of law, and I think that’s what’s so great about these lists of judges. We have people who have been longtime public servants, both in the Federal and the State Courts, who have a principal judicial philosophy that’s not about policy results, but that’s about maintaining fidelity to the Constitution, and that’s something that I think everyone on all sides of the aisle should be able to really get behind, because that means that all of these constitutional protections, which sometimes cut in ways that we think are “conservative” and sometimes in ways that we think are “liberal”, whether it’s freedom of religion or freedom of speech, whether it’s our many protections of defendants’ rights, like jury trial and right to counsel, et cetera.

So all of our Constitution embodies, I think, both sides of the political spectrum. As long as we have judges who are going to be faithful to that document, I think we are going to have a great next few decades of jurisprudence that’s going to defend those freedoms. So I am really optimistic.

Bob Ambrogi: And Trump has sort of wavered already on his own ideas about allegiance to precedent and to the Constitution. It seems that he has said he is going to appoint judges who are against abortion, and at the same time when he has been asked about LGBTQ rights, when he was asked about that in 60 Minutes, he said, well, the court has spoken on that and I am not going to talk about the marriage equality issue.

I mean, the court has spoken on abortion as well and he is not happy with that. What other kinds of issues are at stake here, Nan Aron, let me ask you this, over the next four years in particular and beyond that, what are the big issues that could be overturned or that the could be coming up before the court over the next couple of years that could be decided one way or the other based on who gets appointed to the court?

Nan Aron: First, I think we have to examine what previous Republican Presidents have done in terms of the kinds of people that they have appointed to, let’s just focus on the Supreme Court, for instance. And George W. Bush placed two ultra-conservative justices on the Supreme Court; Chief Justice John Roberts, Associate Justice Samuel Alito, two of the most conservative justices ever appointed in American history, and other Republican Presidents have likewise put on ultra-conservatives on the Supreme Court.

So let’s not kid ourselves, the Republican Presidents typically use an ideological prism through which they decide who they will send over to the Senate for confirmation. And typically, Republican Presidents think about issues like abortion, school prayer, affirmative action, civil rights, and this has been true really ever since 1980, with Ronald Reagan’s presidency and early court packing.

This does not bode well for the preservation of constitutional rights and liberties. There are so many issues at stake here. For instance, while the court deadlocked on the future of unions in the Friedrichs case, there is no question but that Samuel Alito, who has been itching to limit the power of unions, and who has invited in the past cases to be heard by the court will no doubt invite other challenges to workers rights, which could spell the end of public service unions in this country.

Criminal justice is certainly another area where the court will continue down a path of expanding police rights at the expense of everyday people. Abortion access; we did get a decision from the Supreme Court limiting Texas’ outrageous state law, but it will take many more court battles to tear down many more abortion restrictions and many, many other issues.

Certainly, we have no idea what’s going to happen to LGBTQ rights. I know that President-elect Trump mentioned that he would leave them alone, but frankly, if he is seeking to overturn Roe v. Wade, and limiting privacy, there is no question but that will reverberate with LGBT protection.

So, on a whole host of issues I think we will see a court seeking to undo so much of the progress that’s been made over the past several decades, and no doubt they will choose justices who are hostile to constitutional rights and liberties.

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Bob Ambrogi: Well, thank you for that Nan, but we need to take a quick break and before we move on to our next segment, we are going to hear a message from our sponsor.

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J. Craig Williams: And welcome back to Lawyer 2 Lawyer. I am Craig Williams with my co-host Bob Ambrogi, and with us today is Carrie Severino, she is the Chief Counsel and Policy Director of the Judicial Crisis Network, and Nan Aron, who is president of the Alliance for Justice.

And before the break we were talking with Nan about the kind of progress that we are expecting to see in the rule of law and in the court systems under the justices and the judges that Trump will be appointing.

So Carrie, there is a thought that the progress in law is incremental and that there can’t be significant changes in the law as time goes on, but then there is also the seminal cases that we are talking about, Roe v. Wade and so on that make huge changes in the social system of the United States all at one time. So what do you think is going to happen, are we are going to see drastic big changes, or is it going to be a slow march in one direction or another?

Carrie Severino: Well, nothing about the progress of law moves quickly, I think generally, with very few exceptions, that’s why there is turtles in the bases of the lamppost in the courtyards of the Supreme Courts to remind us that the progress of law is slow.

I feel like I just have to respond to Nan’s allegation that President Bush’s nominees were too ultra-conservatives; it just made me laugh to think of Chief Justice Roberts claimed to be an ultra-conservative. Even The New York Times in their analysis of who lies where shows that Roberts is much closer to the center than any of the liberals are, and really, interestingly, all the liberal justices on the court are farther to the left and then they put Scalia to the right. So I am flummoxed to figure out why these people are somehow these dangerous ultra-conservatives when they are less conservative than the liberals on the court are.

I also of course would take issue with some of her characterization of these cases. I mean, referring to the Friedrichs case, which was the case — the Union case that went 4:4 last term as the potential end of unions is really very far out there. This is a case that had to do with whether non-union members can be compelled to pay union dues. And if unions will die a painful death without forcing non-members to pay dues, well, then maybe there is something wrong with this system.

I think they absolutely serve a good purpose, but forcing non-members to have their dues being used, especially in public unions, when that’s effectively public advocacy that’s going on, all of the issues have to do with governmental questions in terms of how government employees are paid, that’s a real issue when you are forcing non-members to join unions. So there is obviously another side to her perspective on things.

I think what we are going to see in the short term is of course not a major shift, because what we have is Justice Scalia’s seat vacant. That means one of the most conservative members of the court is the person who is being replaced here. So frankly finding anyone who will have a judicial philosophy as conservative as Scalia’s is an impressive feat. It’s actually even more possible the court could shift to the left with this next nomination. It will just depend on who the nominee ultimately is and then how they play out on the bench, because of course we know it’s hard to predict from their previous work exactly how a justice will perform in the court.

And I think it’s also significant to point out that Justice Kennedy, the swing vote on the court, has in these last few terms really shifted dramatically to the left. Last term this swing justice in the middle voted more often than anyone else, in fact, more often than any justice voted with each other, he voted with Justices Kagan and Breyer, over 90% agreement. So if your swing vote in the middle is voting in virtual lockstep with two of the liberal branch of the court, that tells me the court already is quite a bit to the left.

So even assuming that Trump were to find someone on this list that is similar to Scalia in all relevant respects, we are going to still see a court that is tilted to the left, unless Justice Kennedy decides to have a — see the light suddenly and switch directions here on the court.

So I really think she is very much over-blowing the situation here. I think we will probably see the status quo for quite some time.

Bob Ambrogi: We do have this unique situation or unprecedented situation of having this list presented to us of potential nominees, which as you said, I don’t think a presidential candidate had ever done before.

(00:19:57)

And the list certainly gives us a very clear and explicit indication of what kinds of judges President-elect Trump would want to see appointed. This list, at least part of it came from recommendations from The Heritage Foundation and The Federalist Society to well-known and well-established conservative groups. And it’s been characterized as a list of largely ultra-conservative judges.

So I mean, Carrie, do you dispute that the judges on this list are all ultra-conservatives.

Carrie Severino: If you want to use a loaded term. I would say that the judges on this list are people who have a consistent judicial philosophy that is one of originalism, which means that they are governed, not by their own political preferences, but by what the Constitution says, what its words are, and how they were understood when they were originally adopted.

And I don’t think, as I alluded to earlier, talking about some of the different protections of the Constitution, that’s really neither conservative or liberal. There are a lot of “ultra-conservative judges”. I mean, I clerked for Justice Thomas, if there is an ultra-conservative justice, that would be the one.

There are many, many cases in which he voted in cases that would have what one would assume would be a “liberal result”, and that’s because of his commitment to the Constitution, in many things, including First Amendment issues, in his vote on, for example, the medical marijuana case, where this is something that he is not in favor of personally. He is not pro-drug kind of libertarian, but he does believe that the federalism system means that the federal government could not be regulating marijuana in the way it was trying to do. And I think that’s the kind of illustration of the sort of question that cuts across party lines in a policy matter.

And I would hope that the judges would be — to the extent that they are conservative, yes, they should be conservative in a judicial and a philosophical approach maybe to the Constitution, if we call originalism a conservative approach. But I don’t think these are judges who are going to vote for what one might assume would be conservative political results in terms of what may be a conservative Congress would pass as a law, for example. I think those don’t end up lining up very well at all in many cases, because you have seen the most conservative justices like Justice Scalia and Justice Thomas, for example, leading the way in terms of many issues of overhauling criminal procedure; whether it’s sentencing or the Confrontation Clause, they really were key to reviving those strong defendant protections in the Constitution.

And it’s because of their commitment to the Constitution, it’s not because that was a popular conservative or liberal cause. Although, I have to say it’s probably much more popular in liberal circles than it was in conservative circles.

So yeah, I think as long as you are clear that we are not talking about politically conservative, I think these are judges who are going to be philosophically conservative.

And I think if I know their judicial philosophy and it’s one that doesn’t leave wide open the door for them to bring in their own political preferences, I think that’s great, because then we don’t have to ask what their personal policy preferences are, if we know that their approach is one that doesn’t open the door. If their approach says, hey, what do I think the Constitution should mean or where is it going, that is a different question.

J. Craig Williams: Well, let’s get a response from Nan because I know that time is running and I know Nan’s time is tight, but Nan, how do you respond to that in terms of how would you characterize this list of the 21 potential nominees.

Nan Aron: Let’s for a minute just remove the label of liberal, conservative, originalism, an evolving Constitution, and I would invite your listeners to check out our website, which contains a brief description of all the names on Trump’s Supreme Court justice list. And just looking at some of the individuals on this list; you have got, for instance, someone who is being touted as the leading contender for the Supreme Court Eleventh Circuit Court, Judge William Pryor, who once said that Roe v. Wade is one of the worst examples of judicial activism. He thought Miranda v. Arizona, which requires people be advised of their rights when arrested is a terrible decision.

You have got Judge Diane Sykes of the Seventh Circuit Court of Appeals, who has voted to reinstate Wisconsin’s blatantly discriminatory voter ID law. And one more, Steven Colloton of the Eighth Circuit ruled that a woman who reports sexual harassment cannot take legal action if her employer retaliates by firing her.

So if you look at this list, name by name, you certainly come to understand that those on this list are individuals who have very strong beliefs and those beliefs would lead them to roll back a century of progress on this court.

(00:25:00)

Those are just three of 21, but seriously, when you look at that entire list, you can only come to the conclusion that this is a group of individuals hostile to the quite wonderful progress this country has made over the past several years.

J. Craig Williams: Well, we have just about reached the end of our program so it’s time to get your final thoughts as well as your contact information for our listeners.

And Carrie, as we toss this back over to you, I would like you to talk also about what do you think the consequences of Trump not being an attorney are. We have had Presidents, a long line of Presidents who have been attorneys and understand the rule of law, understand constitutional law, because we were trained in it. Trump’s experience with the law is largely as a party.

Carrie Severino: Yeah, actually, I think in some ways it’s a much needed dose of humility in the process, this is probably why you saw him, not just coming up with a list himself or trusting that he could gauge whether the list his people handed him was the right one, but really asking the people who were the experts on constitutional law and on knowing who those judges are.

I think maybe he has made the situation where he didn’t just appoint kind of the judges who are known to DC insiders, but judges who came from State and Federal Courts; State Courts are often overlooked in this process, and from all over the country. So I think actually it’s — well, obviously, he is not a constitutional lawyer himself. I think it means that he is asking the right people the right questions and that’s something that should be encouraging.

J. Craig Williams: And do give us your final thoughts as well as your contact information for our listeners.

Carrie Severino: Yeah, sure. I am just optimistic to see how this nomination process plays out. I am hopeful that we will be able to have — I am a little nervous that the Democrats are going to try to block basically whoever is put forward; I could see that Nan is certainly gearing up to do so, but I am encouraged that we are going to have someone, since Trump has committed to choose someone from this list, and I do think that everyone in this list has a very distinguished career; both high qualifications, great government service and a really principled record, where they have stood up for those constitutional principles even when it was politically unpopular to do so. And I think those are all incredibly important characteristics in a judge.

If you want to learn more about our organization, our website is  HYPERLINK “http://www.judicialnetwork.com” judicialnetwork.com, and I am tweeting also @JCNSeverino.

J. Craig Williams: Great. Nan, over to you.

Nan Aron: Okay. Well, I would say during the campaign enormous concerns were raised over so many of Trump’s statements and actions, and statements that he made on the campaign trail caused alarm, not just throughout Democratic quarters, but I think throughout the nation, Republicans as well, and independents, moderates. I think the country is incredibly fearful about our future and we are incredibly concerned about the administration of justice for the next four years.

We will be watching very closely what he says and what he does and what kind of signals he is giving out. Does he intend to continue down a road of attacking African-Americans, Latinos, continue to say vicious things about different constituencies, or is he ready to turn the corner, and we will be watching and very alert to — and vigilant if he continues down the same road.

We will be gathering information between now and the time he names the Supreme Court nominee, on all the nominees’ backgrounds and views, ready to share that information with the press, with Americans, with the Senate, anyone and everyone who is interested. These are very scary times for our country, for our justice system, and we will be on the alert and be vigilant.

For those listening to this program, please look at our website allianceforjustice.org for further information, announcements of upcoming events, and articles that we are releasing to the public on justice.

So thank you very much for having me on your show and would love to hear from your listeners.

Bob Ambrogi: Well, thank you very much Nan Aron, President of the Alliance for Justice. And we have also been talking with Carrie Severino, Chief Counsel and Policy Director of the Judicial Crisis Network. Thank you very much to both of you for taking the time to be with us today. I really appreciate it.

And Craig, we have reached the end of another program. This is Bob Ambrogi. Thanks to all for listening. Join us next time for another great legal topic. When you want legal, think Lawyer 2 Lawyer.

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