Carrie Severino is chief counsel and policy director of the Judicial Crisis Network. In that capacity, Carrie has testified...
Steven D. Schwinn is a professor of law at the John Marshall Law School in Chicago. He teaches, writes,...
J. Craig Williams is admitted to practice law in Iowa, California, Massachusetts, and Washington. Before attending law school, his...
On October 6, 2018 Brett Michael Kavanaugh was sworn in as the 114th Justice of the Supreme Court. Allegations of sexual misconduct from years past, days of dramatic Senate Judiciary Committee public hearings, a combative Senate split by party, an FBI investigation into Kavanaugh, and finally a controversial vote, led to a new justice on the high court.
So what kind of impact will Justice Kavanaugh have on the Supreme Court? And will the controversy swirling around him follow him to the high court putting his decisions in the spotlight? On Lawyer 2 Lawyer, host Craig Williams joins Carrie Severino, chief counsel and policy director of the Judicial Crisis Network, and Steven D. Schwinn, professor of law at the John Marshall Law School in Chicago, to talk about the controversy over Kavanaugh’s appointment, the FBI Investigation, the confirmation hearing, the judicial misconduct complaints, and his future impact on the Supreme Court.
Carrie Severino is chief counsel and policy director of the Judicial Crisis Network. In that capacity, Carrie has testified before Congress on assorted constitutional issues and briefed senators on judicial nominations.
Steven D. Schwinn is professor of law at the John Marshall Law School in Chicago. He co-edits the Constitutional Law Prof Blog and is a frequent media commentator on the Constitution, the courts, and politics.
Special thanks to our sponsors, Clio.
Lawyer 2 Lawyer – Law News and Legal Topics
Justice Kavanaugh’s Confirmation
Steven D. Schwinn: I am not prepared to say that he is unfit to sit on the Supreme Court, but I have deep questions about his fitness to sit on the Supreme Court, and I think those are fully fair questions to ask after the display that we saw.
Carrie Severino: Look, for example, at Amy Coney Barrett, who had to very passionately defend herself against anti-Catholic attacks during her hearing. I don’t think anyone calls her some kind of hysterical woman and said she wasn’t fit for the bench; I just think that suggesting that there is a double standard there isn’t really fair. There hasn’t been a double standard. I think he is someone who has fervently defended himself; women have had to fervently defend themselves at times too.
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. You are listening to Legal Talk Network.
J. Craig Williams: Welcome to Lawyer 2 Lawyer on the Legal Talk Network. I am Craig Williams coming to you from the very sunny and warm Southern California. I write a legal blog named May it Please the Court and have two books out titled How to Get Sued and The Sled, a Christmas story.
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Well, on October 6, 2018, Brett Michael Kavanaugh was sworn in as the 114th Justice of the Supreme Court. Allegations of sexual misconduct from years past, days of dramatic Senate Judiciary Committee public hearings, a combative Senate split by party and an FBI investigation into Kavanaugh, perhaps a couple of them, and finally a very controversial vote led to him as a new justice on our High Court.
So what kind of impact will Justice Kavanaugh have on the Supreme Court? Will the controversy swirling around him follow to the High Court and put his decisions in the spotlight?
Today on Lawyer 2 Lawyer we are going to discuss Justice Kavanaugh, we will talk about the controversy over his appointment, the FBI investigation, the confirmation hearing, judicial misconduct complaints and future impact on the Supreme Court. And to do that, we have got a great line up of guests today.
Here to discuss today’s topic is returning guest Carrie Severino. She is the Chief Counsel and Policy Director of the Judicial Crisis Network. In that capacity Carrie has testified before Congress on an assorted set of constitutional issues and briefed senators on judicial nominations.
She has written and spoken on a wide range of judicial issues, particularly constitutional limits on government, the federal nomination process and state judicial selection.
Welcome back to the show Carrie.
Carrie Severino: It’s good to be here.
J. Craig Williams: And our next guest is Steven Schwinn. He is the Professor of Law at the John Marshall School of Law in Chicago. He teaches, writes, and talks about issues related to constitutional law, comparative constitutional law and human rights. He co-edits the Constitutional Law Prof Blog and is a frequent media commentator on the Constitution, the courts, and politics.
Welcome to the show Steve.
Steven D. Schwinn: Well, thanks so much Craig. It’s a pleasure to be with you.
J. Craig Williams: Great. Well, Steve, I think we would like to toss the first question to you, perhaps just to give us a background of Justice Kavanaugh’s reputation as a judge, the type of rulings we have seen from him in the district courts and what his general background is?
Steven D. Schwinn: Sure. Judge Kavanaugh comes to the Supreme Court from the DC Circuit, where he was appointed by George W. Bush in 2006. He has been a longtime Washington lawyer, going back to Associate Counsel on Ken Starr’s team with the Whitewater investigation of President Clinton, to the Bush presidential election legal team in the year 2000, served as White House Staff Secretary for President Bush and then was appointed to the DC Circuit, and then obviously most recently appointed to the Supreme Court by President Trump.
He has got a reputation as a thoughtful and good judge, a conservative judge to be sure, but nevertheless, a good judge.
J. Craig Williams: Well Carrie, what’s it like to go through the nomination process and the confirmation process for a justice and you have been through that several times and advised senators, what’s the whole process like?
Carrie Severino: Well, the way to answer that question today is very different than I think I would have even four months ago. But obviously it’s a very intensive process. A 100 years ago if you had a Senate controlled by the same party as the president, you might not have a hearing, you might be confirmed within a week or two and now of course even when you have someone like Justice Gorsuch, where it was overwhelming support by the party that controlled the Senate, you still have months to process.
You have visiting all the different senators and talking with them, as well as hearings of course for several days, both questioning the justice, questioning whether they are a just nominee, questioning witnesses about it and then moving on to a vote.
Obviously we saw with the Kavanaugh hearings a particularly outrageous level of partisanship that started happening. So it wasn’t just the typical process already from the get-go, chiefly because it was the Kennedy seat that was being replaced, and so people saw this as, oh my goodness, this is replacing the longtime swing vote on the court.
You had people from day one saying this president shouldn’t be allowed to even make a nomination and finding lots of reasons they thought, let’s not even have a nominee at this point, let’s delay these hearings.
And then of course during the hearings themselves, we saw a real rowdy atmosphere. There were more than 200 protesters who were arrested during those hearings, were standing up and disrupting them, there were senators who were interrupting each other. It took Chairman Grassley over an hour to finish his ten minute opening statement because he was interrupted dozens of times by his own colleagues from the bench.
So this was a really unique process already, and then fast forward to the week after the hearings effectively, you have already had the meetings of the senators, you have already had the hearings, you have already had the questions for the record, almost 1,300 questions for the record, which is more than all previous Supreme Court nominees in history combined, answered. And then we had this news story that came out about allegations and then Dr. Christine Blasey Ford obviously coming forward to put a name to these allegations.
And then that started a whole new phase, which from my perspective really showed how dysfunctional the Senate process has become; especially considering Senator Feinstein had these allegations for a long time going forward, didn’t follow the procedures that are there, designed to look into things like that in a confidential manner, either through the FBI background check process and through the closed section of the hearings, didn’t come up with that at all and it ended up coming out in a way that unfortunately ended up being maximally damaging to Dr. Ford herself and to her own privacy and to her great distress it seems having to come public.
To Judge Kavanaugh, obviously doing irreparable harm to his reputation, and then I think to the process and to the American people. This wasn’t a good way to have this discussion.
That said, after having hearings on — further hearings going into those particular allegations as well as an FBI investigation, looking to those, as well as some further allegations that came out in the meantime, we obviously had a vote. It was a vote that was bipartisan on both sides; there was one Republican that voted against Kavanaugh and a Democrat that voted for him and now we have Justice Kavanaugh as our most recent Supreme Court Justice.
So it is — I thought after the Thomas confirmation we probably couldn’t get any uglier, but unfortunately, this seems to have been kind of hitting maximum incivility, to put it lightly, in a confirmation process.
So I am hopeful that maybe this will be something that we can hopefully keep confined to this seat; perhaps it was a feature of replacing Kennedy and at a time when we also have a major resistance movement against the president himself. I think one take away for most of America is this is not a process that we want to see repeated, regardless of which party is doing the nominating next time there is a Supreme Court Justice. So we will see how we do on accomplishing that.
J. Craig Williams: Steve, as long as we have been talking about some of those sexual harassment allegations, how does this compare to what we went through with Thomas and did we learn any lessons from Thomas and Kavanaugh in this whole process, what now?
Steven D. Schwinn: Those are fantastic questions Craig. And I have got to say I am not sure that we have learned any lessons. I mean we saw similar kinds of allegations in Justice Thomas’ hearings and a Senate that seemed at the time utterly incapable of dealing with them and we saw very similar allegations with Justice Kavanaugh’s hearings and a Senate that seems utterly incapable of dealing with these very similar kinds of allegations.
I have got to say, I find it very disappointing that the Senate Judiciary Committee can’t figure out a way to deal with allegations like this in the context of a Supreme Court nomination or for that matter any other nomination and deal with it in a way that respects the dignity of the accuser and the dignity of the process, the Senate Judiciary Committee just seems wholly ill-equipped to do that, and that was a grave disappointment.
Carrie Severino: Yeah, I have to agree, it was a very disappointing process. Unfortunately, I think after the Thomas hearing that was — my understanding is this is part of the reason we have a closed session to the hearing, because with a certain number of nominees there are allegations that ought to be looked into by the committee to try to figure out whether there is merit to them, but without bringing any of the parties out in such a way that would cause embarrassment or reputational damage before you actually know whether this is something that is valid or not and that’s a process that was ignored in this situation. So that’s what I think is really discouraging. There is a procedure in place to allow the Senate to do the process properly and it was absolutely not followed.
Senator Biden who is then chairing the Judiciary Committee in 1991 during the Thomas hearing at least did follow those procedures to a certain extent where he – when he received word of Anita Hill’s allegations turned it over immediately to the White House, he then had the FBI investigate and then they had that all done confidentially.
So it wouldn’t have had and that was apparently what Hill that she wanted as well that she didn’t want to have to go through this whole hearing process, and it was then as it was now, unfortunately, it was a leak from within the committee that then started it and turned it into more of a public circus type atmosphere and that I don’t think does a good service to anyone in the process.
So, it’s discouraging to see that maybe that kind of 11:52 fueled leaking process hasn’t been fixed. I’m not sure you ever can in DC fix that entirely. But that seems to be the thing from my perspective that has damaged them both, although I do think that Senator Feinstein ought to have disclosed this to the committee earlier because it is something that should be looked into to assess whether they think that it’s weighty and credible enough to affect the nominee, and so they didn’t have the opportunity to do that in a way that would have protected everyone’s privacy in this way and that is the shame and it’s also shame that after that you have leaks that then blew the process up in such a public and damaging way.
Steven D. Schwinn: First off, this is not a criminal process. These weren’t criminal allegations before the Senate Judiciary Committee, although in a different context they certainly might have been but the context in which they were presented to the committee was not a criminal context, it wasn’t even a civil context.
And so we often hear terms and phrases kind of bandied about like due process rights of the accused or innocent until proven guilty, those concepts don’t have any legal and direct bearing on what happened at the Senate Judiciary Committee. If we talk about ideas of due process we must be talking about them in a non-constitutional sense and in a kind of fairness sense and certainly not a constitutional sense because there’s no due process at issue in these proceedings.
And so, in terms of Senator Feinstein holding on to the letter in order to protect the anonymity of Dr. Blasey Ford and sort of the way that the Democrats went about this, I think is largely a response to the Republicans trying to get Judge Kavanaugh through the nomination process without revealing a number of documents that the National Archives had not revealed using an unusual review process for the documents that it was going to reveal and preventing the democrats essentially to ask what I think many consider essential questions of the candidate that have nothing to do with the sexual allegations but have to do with his fitness to sit on the Supreme Court.
Everything from his time in the Bush White House to his handling of other judicial nominations by the Bush White House to his role in Bush Administration policies like torture for example, and whether he had any role in those things.
I mean, those are all fair game questions that the Republicans prevented the Democrats from even considering at the hearings in any serious kind of way and prevented them from obtaining documents that they should have been able to obtain in order to ask those questions.
But then ask the further questions about whether Judge Kavanaugh had been honest to the committee when he was nominated to the DC Circuit and when he was nominated to the Supreme Court about his time in the White House and his opinions about things like whether the government can torture people.
J. Craig Williams: Let me interrupt here and just ask the question about how some people have alleged that during Judge Kavanaugh’s hearings he did not exhibit the kind of judicial temperament that you want to see for a Supreme Court Judge? I mean, there admittedly were some outbursts, he was parodied by Saturday Night Live; Carrie, what’s your thought on that?
Carrie Severino: Well, his response in that hearing was very — I think very significantly not at all one of a judge in a hearing, he was not in a position of a judge, he was in a position of someone defending his reputation against allegations he said were false, been horribly so. And so, I think this is not an indicator of how he behaves on the bench because it’s him in a very different role. We had seen him in 12 years on the DC Circuit as Steve mentioned at the outset of 15:48 his reputation was one of a judge who is a very good judge and even-handed judge, and yes, it was a conservative judicial philosophy but someone who people on both sides knew they would get a fair shake from, that’s why you had people like Professor Akhil Amar from Yale Law School writing and saying this is probably one of the best people you’re going to get, it could either be conservative but someone who is fair as a judge; Former Solicitor General Don Verrilli endorsed him, and remember, his first confirmation process, he didn’t — in fact he was filibusters, he had to have a whole second round of confirmation hearings.
So, one could say, oh, he’s going to come in with a chip on his shoulder, because of the contentiousness of his first confirmation process, but what we saw was, no, not at all, he actually came in and again made a real reputation for himself as someone who is very scrupulous about hearing both sides of the story.
I think that’s part of the reason he got along so well with his mentor and former boss Justice Kennedy, who was not a doctrinaire conservative by any means either. So if this is — I think that it kind of from my perspective the last and yet in a ever-shifting rationale for opposing Justice Kavanaugh was — okay well, now if he was angry at the way this process was carried out and therefore cannot be a Judge, I don’t think anything in his 12-year career has illustrated that.
Steven D. Schwinn: So a couple of things troubles me about his demeanor at the trial first or at the trial — I am sorry. First off, Judge Kavanaugh comes from an Appellate Court, a Federal Appellate Court where judges actively question attorneys as part of the hearing. They usually sit in three-judge panels and they actively engage the attorneys often with aggressive questions about the positions that they are taking and trying to get the judges to accept.
I mean, Judge Kavanaugh is well familiar with that process, and undoubtedly has seen it at the Supreme Court as well and now being a part of the court he knows it.
This is the same thing that happened at the Senate Judiciary Committee. Judge Kavanaugh was presented with evidence against him or allegations against him and other evidence against him by some of the Senators and he responded in a way that I would say if any attorney in his courtroom responded to him as judge, he would justifiably be outraged at the attorney and be seeking possible sanctions against that attorney.
A couple of other points I wanted to make. First off, some of these outrageous comments were prepared remarks that he made when he came back to the hearing in the morning and started spouting about conspiracy theories among Democrats and bringing in the Clinton somehow as if they had something to do with this, which was deeply troubling to me on a lot of different levels, and it led me to believe that if I were representing a litigant at the Supreme Court representing an interest for example, the ACLU or the NAACP or something to have to do with any progressive organization or the Democrats, I would have to seek recusal from this justice.
I think he has in those prepared remarks, these were not off-the-cuff responses to allegations that he was receiving or being blindsided by, these were things that he had well-prepared in advance and delivered in an outright angry way to the Senate Judiciary Committee which not only was wholly inappropriate but I think reveals a deep bias on his part.
And then finally, I want to make a point that if a female candidate for the Bench behaved in that way, I think we would have a very different view of it. I think the line would be, well, she’s an angry woman and temperamental and cannot sit on the Supreme Court, and the fact that we have this kind of double standard I think is pretty outrageous and just underscores I think particularly in the context of sexual allegations against a woman that we do have these deep double standards in our society and all these things tell me that this is a man who temperamentally is — I’m not so, I’m not prepared to say that he’s unfit to sit on the Supreme Court but I have deep questions about his fitness to sit on the Supreme Court, and I think those are fully fair questions to ask after the display that we saw.
J. Craig Williams: We’re going to ask those questions right after we move on to our new segment. We’re going to take a break and hear a quick message from our sponsor. We’ll be right back.
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J. Craig Williams: And welcome back to Lawyer 2 Lawyer. I’m Craig Williams and we’re joined by a returning guest, Carrie Severino; she’s Chief Counsel and Policy Director of the Judicial Crisis Network and Steven Schwinn; he is a Professor of Law at the John Marshall Law School in Chicago.
And right before the break, Carrie, I cut you off. So, jump back in.
Carrie Severino: Oh, yeah, I just wanted to follow up because the idea that his statements would require recusal, I think that’s absolutely not how recusal works. Clearly, you have people like Justice Ginsburg, for example, who quite famously stated lots of stuff very clearly opposed to President Trump, suggested she might want to leave the country if he were elected and yet has not recused herself from any case in which she’s involved including his immigration executive order cases that obviously were very closely associated with him, personally with his campaign. If that were the standards, she obviously would have had to recuse herself, she didn’t.
So that’s simply not the case, and I also just, as a woman too, I objected suggesting that a woman would have been treated differently. I think that’s a imaginary idea that somehow a woman who spoke very passionately would have been dismissed as a crazy woman, who looks for example at Amy Coney Barrett, who had to very passionately defend herself against anti-Catholic attacks during her hearing.
I don’t think anyone called her some kind of hysterical woman and said she wasn’t fit for the bench. I just think that suggesting that there’s a double standard there isn’t really fair. There hasn’t been a double standard. I think he’s someone who frivolously defended himself, women had to frivolously defend themselves at times too.
J. Craig Williams: Well, we have had a number of judicial misconduct complaints against Justice Kavanaugh. Steve, how do those work? What’s the process?
Steven D. Schwinn: Well, so it’s a little unclear because he’s now appointed to the Supreme Court and the Chief Justice has referred these to the Tenth Circuit, which presumably will do some sort of investigation and evaluation of them and then make an assessment. But it’s unclear whether the Tenth Circuit will have any authority to do anything because he is actually on the Supreme Court at this point.
The Constitution does provide for removal of Supreme Court justices but it’s by impeachment and so a coordinate court or a lower court wouldn’t have any obvious authority or even non-obvious authority to sanction or force recusal or to remove a sitting Supreme Court justice.
So, it’s not clear to me what the Tenth Circuit can or will do with these complaints but sort of there you have it and there they are.
J. Craig Williams: Carrie, what do you think Justice Kavanaugh’s impact is going to be on the Supreme Court? Obviously, we’ve seen him come across as a very conservative judge. How are his rulings going to be viewed and can we take anything of the criticisms of Justice Thomas’ viewpoints to give us an indication of what’s going to happen to Kavanaugh’s opinions?
Carrie Severino: Well, I think he’s someone who well before his time on the Supreme Court obviously was a really significant figure for the court already, more than a dozen times while he was in the Court of Appeals, the Supreme Court vindicated his decisions often his dissents, and many times citing his language specifically saying that this was the opinion they want.
So he was someone who was already very influential even as an appellate judge and I think this is going to carry over in his time on the Supreme Court. He’s someone who knows a lot of the numbers of the court already, new Justice Kagan because obviously she hired him to teach at Harvard Law School and she was Dean there and it seems from watching them in these opening hearings, they’re joking together and they seem to have maintained that friendship and that good working relationship.
And the other good news is our society is so polarized right now but the Supreme Court I think is a unique place in that the justices while they do have a lot of differences, they make those arguments not by shouting at each other, not by boycotting each other’s events or things like that, I mean, Justice Kagan and Justice Ginsburg for example attended not just his name swearing-in but his initial swearing-in, so he get started on the job early on Saturday the day he was confirmed.
They convinced each other through arguments and through civil discourse. And even though they disagree firmly, they can still go away and be friends, and I think that’s something that hopefully we can all as a society learn from the way the court does it.
Yes, have very firmly held position and passionately held things but they can do it in a civil way, and I think that will be a legacy of his time there. It seems like watching his early hearings, we can already see that the court is moving forward with its characteristic stability.
Steven D. Schwinn: I agree with those assessments, and I too hope that this can be a kind of model for the rest — the way the rest of us interact in politics and civil society. Having said all that, Craig, I do think that there will be some important things to watch when Justice Kavanaugh starts to issue opinions and votes in attending cases, there’s a lot been said, for example, of what his appointment to the Supreme Court will mean for Roe v. Wade. And I think that’s something to pay attention to but I’ve got to say, I think the far more important influence that he may have on the court has to do with the separation of powers and in particular, presidential authority under Article II of the Constitution.
He has indicated in some of his writings and many of his actions that he is a big proponent of a robust Article II authority and I think in the age of President Trump that is especially significant, and so, I think the separation of powers and how he feels about presidential authority are things that we really need to keep an eye on.
J. Craig Williams: Carrie, let’s take the Supreme Court off that. Presidential powers and it seems like we have, I mean, there were a lot of people that said that the only — one of the reasons that Trump nominated him was because he needed that support in several upcoming cases.
Carrie Severino: I don’t know, I’m not sure what all of the Trump’s factors in there, but I think absolutely separation of powers is a key area that Kavanaugh has been working in for years, that’s the course he taught at Yale, at Harvard, at Georgetown, and so he’s clearly thought about that deeply.
I think it’s going to be interesting to watch the interplay of his thoughts on executive power but also on administrative power and how those work in. So, he seems to have a very strong view of the president’s role constitutionally, at least when it is truly accountable to the president, but when it comes to then moving out into these agencies that are in varying degrees much more attenuated links to the presidency and much more — not the clear constitutional line of authority and chain of command he’s much more skeptical and critical and I want to make sure that this actually fits into the constitutional system.
So, I think there could be things that President Trump likes about that and there could be areas where he was wishing that Kavanaugh would give his agency administrators, for example, a little more authority.
So, I think the great thing about his approach is that if something — and remember, he’s not going to be here just for the Trump presidency, if history is any indication, he’ll be here through many different, different presidents of different parties.
And so, that is his consistent approach, is one that I think is going to be good. There was a study that was looking at his — the way he approached administrative law and found that he basically had to use the same standards rather he was dealing with a “liberal” or “conservative” regulation if you’re trying to — it’s always a little hard to code those things engage, what count is what.
But I think that’s really what we want to see because that then puts it back in the American people, like if you want to elect a president of one party, that’s what you’re going to get a president of the other party, and it’s not the course it’s going to be stepping in to try to second-guess that same thing with the laws of the regulations.
Those are going to be given the same legal standards regardless of whether they were passed by Democrats or Republicans, and I think that’s the best system because then we can have as the American people do the ones who are choosing our representatives that for the Constitution envisioned it.
Steven D. Schwinn: I will add to that, Craig that often the position with regard to administrative agencies that Carrie was talking about, turns out to be a politically conservative position, and that’s because so much of the work of the agencies is to do things like Environmental Protection, Labor Protection and Labor Rights, education and so on, and those tends to be progressive causes, and so when agencies are regulating in those areas, they tend to regulate in a progressive way.
When the courts cut back on the regulatory authority by cutting into, for example, the Chevron doctrine or changing long-standing rules with regard to separation of powers and appointments, those things will tend to benefit political conservatives because the regulatory agencies are certainly in today’s politics, almost inherently progressive.
Carrie Severino: Well, I have to say, the caveat on that is, his approach for example to deference to agencies really would say, no, we have to go back to the Texas statute, so that then puts it back into who is it that groped and passed the statute, and that could be a Democrat or Republican-led Congress.
So, I see your point that if the agencies are trying to aggressively push things and take any particularly creative or more aggressive interpretations, they are more often than not coming from the left, and so pushing back on that may have a disproportionate effect there. But when you’re looking back where I think constitutionally if you look, and I think well, Justice Kavanaugh, would take a look to the law itself that’s something that should be passed — it could be passed by Congress of either party and hopefully because of the demands of our representative government then would also be something or closely represent that the American people want in the compromises that would allow that to get passed would make it less of a wholeheartedly left or right endeavor, but something that actually more closely approximates what the American people want, that’s obviously the idea. Hopefully, we can come close to achieving that.
J. Craig Williams: Let’s take a look at just a couple of potential opinions and some of the hot buttons, Roe v. Wade, gay marriage, Second Amendment, see where are we going on those?
Steven D. Schwinn: Yeah, if I had to predict and lay money on it I don’t think that the court is going to overturn Roe v. Wade for a variety of reasons that we can get into; some legal, some non-legal and political, but I do think that what the court will do is continue to cut back, trim back, chip away at the fundamental right the woman has to get an abortion in our country. So, I actually don’t think that Roe v. Wade is going to be overturned, but I do think that the right will slowly go away kind of death by a thousand cuts.
As to the other issues I would expect, although don’t know for sure and we won’t know until he has a chance to rule on these questions that Justice Kavanaugh would rule for a robust Second Amendment and with regard to same-sex marriage, I mean that case is decided. I think that cat is kind of out of the bag at this point, and even if the Supreme Court were to go back and reconsider its decision on the same-sex marriage we’re now at a point in society where this is so widely accepted. I think it’s not — we’re not going back at this point.
I think the interesting questions here are those that were raised in the Masterpiece Cakeshop case, for example, this past term and what the court is going to do with those. When the court ruled in Masterpiece, of course it ruled in a fairly narrow way ruling that members of the Colorado Civil Rights Commission expressed anti-religious animus against the cake baker, and in that way they dodged the larger question.
Well, that larger question is going to come back to the court at one point or another and it’s going to be a really important question, not only for same-sex marriage and gay rights, but for all of civil rights across the Board. You’ve got to remember that it wasn’t really all that long ago that we were hearing religious objections to anti-discrimination laws by race in our country and the Supreme Court said, no, there’s no religious pushback to anti-discrimination laws that restrict discrimination by race.
And so, I think the hard question for the court is going to be does that principle apply equally to anti-discrimination by sexual orientation? If it doesn’t the court is going to have to come up with a pretty good reason why not and it’s not at all clear to me what that reason might be.
Carrie Severino: I think Roe v. Wade is unlikely to be the wholesale overturn, I think you made the same thing about 33:31, we will have to see, but I also think that Chief Justice is really more likely to swing vote in those cases at this point anyway, so it’s not just Justice Kavanaugh, we have to kind of get in his mind. We have to get in the Chief’s mind on those.
In terms of Second Amendment I think Justice Kennedy himself was a vote for Heller and say in the Chicago v. McDonald. So in that case, even if Justice Kavanaugh is very strong in Second Amendment, which I think he is, if you look at his opinion in the second Heller case, it’s a follow-on to the one that Supreme Court decided, he had a very strong opinion in favor of the Second Amendment and strong Second Amendment rights. That actually has been cited repeatedly by Justices Thomas and Justice Scalia themselves, so that is interesting.
One area you might see a difference and this is where they often cited is in dissent from denial of cert, so depending and it’s very hard to know behind the black box of the cert, depending on what Justice Kavanaugh’s position is there you might see the court maybe taking some of these cases that they have passed on before because he could be the fourth vote where Justice Kennedy was not voting to take those cases.
So that’s one area I think would be kind of interesting to see how that’s going to impact any of these areas, will they just freedom as well, there’s been some cases that had three dissents from denial of cert in recent past that they said this is an important issue we should address it, so whether Kavanaugh will be the fourth vote to take up some of those questions. It doesn’t tell you how they’re going to ultimately be resolved but I think it will be interesting to see if that expands some of the topics that Supreme Court is addressing.
J. Craig Williams: We’ve just about reached the end of our program. We want to invite our guests to share their final thoughts and their contact information if they like, so Steve, let’s throw it over to you.
Steven D. Schwinn: Oh sure, thanks so much. I really appreciate the opportunity, Craig, and thanks again for having me on.
I would just say, I think we need to keep an eye on this, this marks a significant shift to the right on the Supreme Court. I was going to say a moment ago that one of the areas that we haven’t talked about and I don’t see a lot of talk about is death penalty and Justice Kavanaugh’s influence on the court with regards to death penalty, particularly given Justice Kennedy’s position on death penalty which often cited with the progressives. I don’t expect the same thing to happen with Justice Kavanaugh.
So, I think it’s important to keep an eye on what’s happening at the court. Separation of powers issues I think are going to be key, but the other ones that we talked about as well, it’s been a delight to talk to you about this, Carrie. I’ve really enjoyed it.
Listeners can get in touch with me at the John Marshall Law School, [email protected].
Thanks again, Craig.
J. Craig Williams: All right. thank you, Steve; and Carrie, your final thoughts.
Carrie Severino: Yeah, I am just excited to looking forward to this term and seeing a little bit more of what — how justice Kavanaugh comport himself in his decisions and death penalty is only one of many areas that for example didn’t come up with the DC Circuit.
So, we know we had the principles that he uses to apply at the cases in terms of his originalism and textualism, but we haven’t seen them carried out in definitely cases or frankly many criminal cases because that’s simply not in the DC Circuit docket, so I’m excited to look forward to that — this term as well and I’m pleased to see him already doing well in his oral arguments. I’m looking forward to hearing some of his first opinion.
You can follow me on Twitter @JCNSeverino and our website is judicialnetwork.com. I also blog at National Review online Bench Memos blog about Supreme Court as well as major judicial nominations issues in the lower court.
J. Craig Williams: Great, we really appreciate it. We would like to thank Carrie Severino, Chief Counsel and Policy Director of the Judicial Crisis Network, and Steve Schwinn, Professor of law at the John Marshall School of Law in Chicago for joining us today.
That brings us now to the end of our show. If you like what you heard today, please rate us in Apple Podcasts. You can visit us at legaltalknetwork.com, where you can leave a comment on today’s show, and sign up for our newsletter.
I’m Craig Williams, thanks for listening. Join us next time for another great legal topic, when you want legal, think Lawyer 2 Lawyer.
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