July 20, 2018 | politics

Jeff Merkley

The Democrat leading the Senate’s opposition to President Trump’s Supreme Court nominee, Senator Jeff Merkley, joins this week on Firing Line

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The Democrat leading the opposition to President Trump’s Supreme Court nominee — Senator Jeff Merkley joins me this week on ‘Firing Line.’
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He has been heralded as the leader of the vast left-wing conspiracy and was the only senator to endorse Bernie Sanders for president.
Jeff Merkley, the junior senator from Oregon, is one of the few political firebrands in modern history, whose admirers and detractors describe him as having gone rouge.
Recently, Senator Merkley responded to disturbing rumors of an unconscionable increase in child and parent separation at the U.S.-Mexico border by going to Brownsville, Texas, to see for himself.
A video of him being denied entrance into a detention center received well over 1 million views and lit a fire under an already active immigration rights movement.
The son of a millwright and working-class to his core, Senator Merkley lives in the same neighborhood he grew up in, and since 2016 has become a progressive darling and a leader in the Senate.
Now he is leading the fight against Judge Kavanaugh’s nomination to the Supreme Court.
In an age where every powerful person sees Donald Trump and believes that she or he can do better, there’s every reason Senator Merkley should think that he would be just as viable of a 2020 candidate as any of his Senate colleagues.
Senator Merkley, welcome to ‘Firing Line.’

Thank you very much.
Great to be with you.

I want to thank you for hearing the call and going to the border and elevating this issue, which is truly a moral issue for our country, and for which I believe our country owes you a debt of gratitude.

Well, it was an incredible situation because we heard the story, the policy, and then we heard children were being separated, but it was kind of vague and not very clear.
This can’t be happening, that families fleeing persecution are being treated with trauma when they arrive in the United States of America?
So that’s what I went down to find out, and I got to say, I was incredibly shocked when it turned out it was not only true but being done on a massive scale, thousands of children.

Who tipped you off?

I saw stuff in the press and said to my team, ‘This can’t be — This can’t be right.
They can’t be doing this.’
I mean, this is basically taking Lady Liberty, who holds a torch to the world and says, ‘Give me your tired, your poor, your huddled masses yearning to breathe free,’ and instead saying, ‘If you are fleeing persecution and you wash up on our shores, we’ll meet you with a pair of handcuffs, throw you in prison, take away your children.’

Many people agree with that characterization, including Republicans who often don’t even wade into immigration debates or any political debates.
I mean, Laura Bush, the former First Lady of the United States, wrote an incredibly compelling op-ed that this is just not in the moral nature of Americans, and you identified that across partisan lines.
So, if you were in president in 2021 and you had the opportunity to reimagine our immigration system, how would you do it?

Well, certainly it would take on this issue of treating people with respect when they come to the border seeking asylum, fleeing persecution.
We had a great program to address that, the Family Case Management Program.
The I.G. said that 100% of folks — that’s the Inspector General — said 100% — folks show up to their hearing.
That’s really much more in keeping with the vision of the Statue of Liberty.
We don’t want people coming to the U.S. fleeing persecution to be treated as criminals, and we certainly don’t want trauma inflicted on children.

In 2013, you supported a comprehensive immigration bill.
Do you still believe in reforming the immigration system along those lines?

That had in it border security, security at the point of employment, security with people overstaying their visas, using visas in an appropriate capacity for American policy, for family reunification, for jobs, agricultural jobs, high-tech jobs.
That was — And having a pathway to citizenship for some 11 or 12 million folks who had arrived before a specific date.
That was a bipartisan deal, and that’s really the foundation for any comprehensive bill in the future.

You care a lot about the DREAMers, like 70% of Americans, these children who came to the United States illegally with their parents and have grown up culturally American, and there’s a real imperative and care, out of many, to settle their circumstances legally.
How far would you be willing to go in terms of negotiating with the Republicans to secure their status?

Well, the DREAMers had legal status, and the President ripped it away.
Now the courts have restored it, but they’re in a place where it’s not a solid foundation on which to pursue their lives, and so they deserve that.
They’ve grown up in our communities, they’ve gone to our schools, they’re working, they’re contributing, and so let’s put them back on a firm foundation along with their families.

I agree with you, and 70% of Americans agree with you.
Donald Trump is trying to use that and many other things as leverage.
So if it came to making a deal, how far, pragmatically, would you be willing to go?
Republicans say you have to secure the border.
Actually, that’s what they used to say.
Now they say you’ve got to build a wall.

Well —
If it came down to building a wall, ‘funding a wall’ — and, I know, we can argue about whether walls are effective or not — But if that was the give and take, would you be willing to do that?

Well, back in 2013, that bill you were talking about, we funded $35 billion, I believe it was, of border security, but smart security, not a 4th-century wall that people can climb over or tunnel under or bore through.


And I think that even — where even Republicans might want to actually do things that are cost-effective, and I think if we put that bill in front of the President, and we pass it through, I think he’d sign it, because it really comes to the issue of security.

If it included funding for a wall?

Not if it included wasting America’s money on thousands of miles of concrete.
But if its initial funds to study the concept, well, there might some room for compromise there.

I want to move to LGBT equality, ’cause this is an issue that I care a lot about, and I know you have been a champion on.
As early as 2013, when you supported a bill called the Employment Non-Discrimination Act, which would have protected LGBT Americans from being fired for their jobs, and now you’re the lead sponsor on another bill called the Equality Act, which is a Democratic bill to secure full civil rights protections to LGBT Americans.
Now, full disclosure, I run an organization called American Unity Fund that worked to help secure Republican votes for that bill, and it was bipartisan.
So it seems to me that the approach that you’re pursuing with the Equality Act is different from the approach you pursued with Employment Non-Discrimination.

Well, so let’s turn the clock back to 2013.
It was all Democrats signed on.


It was very difficult to get Republican.
I finally got it to several hearings, said, ‘We’ve got to put this on the floor so that people have to take a stand.’
As it turned out, we were able to bring — at the last second.
Really, at the last second brought a group — and thank you for helping make that happen.
So, I’m counting on you when we finally get the Equality Act on the floor of the U.S. Senate, to help us bring folks across.
And Equality Act says ‘Let’s turn to the 1964 Civil Rights Act.’


It’s been adjudicated, we understand everything it means, and put equality of opportunity for our LGBTQ community on the same foundation.
And that’s the beauty of it, ’cause it isn’t just mortgages or financial instruments or ability to serve on a jury or employment.
It’s taking the same foundation of opportunity as every other American.

Well, there are Republicans in the Senate who have taken pro LGBT votes, who ought to be willing to sign on to this and be co-sponsors, but they’re not, and some of them, you know, have real concerns that the Equality Act, for example, is written so broadly that it’s quite difficult for Republicans to support it, even though they support LGBT equality.
For example, there’s a provision that potentially implicates abortion, and so a pro-life Republican like Rob Portman, who’s also pro LGBT, would have a hard time signing on, and there are a couple of planks and provisions.
Conservatives’ criticism of the Equality Act isn’t that it’s anti-LGBT, but it’s that’s it’s written so broadly that it precludes passage.

Well, that was the same position we were in with the Employment Non-Discrimination Act, and it was very difficult to bring people across.
But when they say ‘too broadly,’ they’re talking about the same foundation on which we address race and gender, and so I don’t think that’s too broad.
That’s opportunity for all.

Well, there — It’s… I appreciate that that’s what you say.
That’s not what conservatives are saying.
I mean, conservatives think this bill is loaded with poison pills.
Why not write a bill that is narrow that you know you can get Republican support on, Republicans who we know are on the record supporting LGBT freedom in order to secure their votes?
It seems like there’s a pragmatic approach, and there’s an ideological approach — one intended to gin up a progressive base and another that could simply get the job done and protect LGBT freedom.

Well, quite frankly, this was saying that our LGBTQ community deserves the same protection as we have on race and gender.
I don’t think that’s too broad, and I don’t think it’s about ginning up a base.
I think it’s about fairness of opportunity.
The main pushback I’ve had is folks saying, ‘We still want to let organizations, like hospitals, Catholic hospitals, discriminate and only hire people — even, like, custodians — and, like, you can’t discriminate on the basis of race and gender in that situation.
Why should you be able to discriminate against our LGBTQ community?

Well, the criticism as I understand it with respect to religious organizations is that the federal government funds religious organizations like Catholic charities, like religious hospitals.
It could risk the entirety of their funding if they refuse to agree with all of the Equality Act provisions, rather than just risking their funding in a narrow space that deals with LGBT service people they’re providing services to.

Well, I’m just — I’m just standing on the firm foundation of 1964 and saying if you’re hiring a janitor and you can’t discriminate on race, you shouldn’t be able to discriminate on the status of who a person is or whom they love.

I agree that you shouldn’t be able to discriminate based on who they are, but in the recent ruling of Masterpiece Cakeshop vs.
the Colorado Civil Rights Commission — While the court punted on the fundamental questions in that case, 7-2, with Kagan and Breyer joining Kennedy, they basically gave us some guidelines, that there is going to need to be a way to balance religious freedom with full protections to LGBT people and public accommodations and others.
It just seems like we should be able to go at it with a scalpel rather than a hatchet and to be able to sort of still fund these organizations who do very good work and potentially not fund the places that are viewed as discriminatory.

When folks going into the public place, they’re taking public funds.
They are opening their doors to the public.
It’s a time to stop discriminating.
And this is a core question that comes up, you know, in the wedding cake cases where folks say, ‘Hey, I want to be able to run my business the way I want,’ and it’s the same argument that was made for discrimination against African-Americans.
We got past that.
We need to get past it here and have the same foundation.

At the expense of sincerely held religious beliefs that aren’t — from people who aren’t discriminatory in any way, but in the cases of — You know, I mean, that was the issue in the Masterpiece Cakeshop case, which, by the way, the Court decided not to rule on.
But, I mean, what they’ve said is there may be cases where sincerely held religious beliefs by individuals who have described and displayed no other animus to LGBT people, there may be a way to protect religious freedom and — not only there may be, there be a way to protect religious freedom and LGBT freedom, and that they can exist in concert with one another.

I just encourage people to think about standing at the door, and when you have put up your sign you’re open for business, whether you get to stand there and let one person in and slam the door on the next.

Which, by the way, the court said you’re not gonna be able to do, and Kennedy said that in his opinion, and I agree with you.
Nobody should be denied services to the general public.
If you’re open to the public, you’re public, and that’s was I think one of the things that they laid to rest in that case.
But I’d like to move on.
Since we’re talking about the Court, you are going to be one of the lead attack dogs, I think, against Judge Kavanaugh.
Is that fair?

That’s absolutely fair.

The Senate rules have changed, I think we can’t have this conversation without sort of backing up to how the Senate rules have changed, and that in 2013 you were an advocate for changing to a simple majority, votes for lower-court judges and Cabinet-level officials.
That has helped change the dynamic now so that Supreme Court nominees are voted in with a simple majority.

Well, and realize what that came out of was years of blocking every Obama executive branch individual and court appointee just on the basis of trying to undermine the executive branch using confirmation as a weapon in that case.
But we very carefully said, ‘I guess the Supreme Court — It’s so important for the legitimacy of the Court that you have bipartisan support for the nominee.’
So we left that carefully in place.

But I remember Senator McConnell saying, ‘Hold on, guys.
You’re not gonna be in the majority forever, and if you do this, you’re changing the precedent of changing Senate rules, and so it will be very easy when you’re no longer in the majority for the Senate rules to be changed to make Supreme Court nominees voted in by simple majority.
So, I mean, do you accept that you helped enable the circumstance that we’re in?

No, I don’t accept it at all.
We had an intensive Democratic/Republican meeting in the Old Senate Chamber, and the Republicans fessed up and said, ‘Yeah, you’re right.
We’re sabotaging the President.
We shouldn’t do it.’

When was that?

‘We’re going to stop.’
It was before the 2013 change, and I remember Senator McCain being on the floor trying to convince his colleagues to quit this sabotage and because of where it would lead.
But when the reenacted it, blocking everybody who could go to the Labor Relations Board or to the district court, circuit court, it was like, ‘No, you can’t use it in that — in that way, as just a weapon against a president.’
So we tried every possible thing to have an accommodation and understanding, and we had it for a while, but the determination of Mitch McConnell to sabotage the process finally won out, and so he drove that change.

That series of events has led to, really, an escalation.
So now you’re in a position where I hear you using rhetoric like ‘stolen Supreme Court seat’ and ‘crime’ and ‘theft’ and language that seems pretty incendiary.
Did you really mean that Supreme Court seat for Merrick Garland was stolen?

So, in 2016, just hours after Antonin Scalia passed away, Mitch McConnell came to the floor and he said, ‘There will be no debate, and there will be no vote on anyone that Obama nominates.’
He said, ‘It’s an election year.’
Well, it’s not in the Constitution you don’t debate and vote in an election year.
Listen, 15 times before we’d had an open seat during an election year.
Every single time — every single time — there was a debate and there was a vote.

I’m willing to admit that Senate norms were changed in a way that felt incredibly egregious, that Merrick Garland, in my view, should have gotten a vote.
But — And it was an enormously partisan set of circumstances that led to him being blocked.
All I’m saying is no law was broken.

Well, no law was broken unless you respect the Constitution as a law, and the Constitution says ‘advice and consent,’ and it’s always been the understanding of that when there’s a Supreme Court nominee, and this is not a case days before the election.
This is a case of January.
This is shipping it an entire year into the future.
I think the violation of that norm, that theft of that seat, is an egregious crime.

What concerns me is the language you’re using, ’cause you’re saying ‘crime,’ you’re saying ‘theft of a seat,’ and what that does, the effect that has on our civic discourse, is, I think, undermines the stability and the integrity and the faith that individuals have in our institutions.
And if we’re in the business of defending liberal democracy these days, one of the things Democrats are constantly accusing Republicans of is undermining faith in our institutions — in the FBI, in the Justice Department — and what this does, to me, is undermine individuals’ faith in the Supreme Court, which is an equal and separate branch of government, and that risks destabilization of the faith we have in our institutions.

So, I’m fascinated by this, because your argument is that when the act occurs it doesn’t damage the institution, but when we describe the act and explain to the public that it hurts the institution —
‘Cause the act wasn’t illegal, it was part of the process.
It was part of a normal process that partisans don’t like, and I wouldn’t have liked it if I were —
Not normal.

I agree, not normal.
Well, particularly it was not normal, but it was not extralegal or extraconstitutional, and that’s the difference.

And it’s a piece of three different forces that are destroying our Constitutional —
Whoa, whoa, whoa, whoa!
Destroying our Constitutional —
Yeah, destroying.

When you say that, though — This is what I’m getting at with the rhetoric.

Number one — You have states that are split in the middle, but because of gerrymandering, two-thirds of the seats in Congress go to one party.
We have voter suppression.
If you really believe in a Democratic republic, you want to empower voters, not suppress them.
And then you have this third-party money that is the opposite of the way our Constitution was crafted under an equal voice.
Those are three assaults that are changing it from government by and for the people to by and for the powerful.

Let’s move on to Brett Kavanaugh.
Why don’t you support Judge Kavanaugh’s nomination to the Supreme Court?

Well, I’m fighting this nomination because, first of all, he’s committed to tearing down Roe vs. Wade, which affects the rights of millions of women across this country.

What evidence do you have that he’s committed to overturning Roe v. Wade, because he has actually only ruled once with respect to anything, in his record, related to Roe v. Wade, and that was simply in the case, the Garza case, where he didn’t deny Garza’s right to have an abortion.
He just wrote that he didn’t believe it was the federal government’s job to facilitate it.

Do you have any doubt at all that when the President says to the Federalist Society ‘I want a list of people who will honor my campaign pledge to tear down Roe vs. Wade’ that they’re going to give him a nominee who doesn’t have that position, that they’re not going to ask him about it?
He’s given a list of 25, but who does he choose off that list?
The single individual who not only meets those requirements, but also has an expansive view of the presidency more fit for a king and a kingdom than a democratic republic.

Again, now we’re getting into heightened rhetoric that I think undermines a sober and responsible conversation about a Supreme Court justice.
Why do you say that he supports an imperial presidency?

Well, let’s start with the fact he said a president should not be indicted and then he went further to say a president should not be investigated.

What he’s actually said is that the President — And by the way, his views of this have evolved over time because he participated in both the Starr investigation and then participated in a White House that was under investigation, and and he absolutely believes that a president should be investigated but that the demands of the presidency are so intense that the prosecution should take place after the presidency is over, but he doesn’t mean that the President is immune from prosecution.
And, in fact, many liberals suggest that the recommendations he made in that article in 2009 actually strengthen investigations of the presidency.

Strengthen it after he’s out of office.
Well, I must say that the entire history of our country has been one in which if a president misbehaved in office there was a check, and that check included investigations and possibly indictments, but it certainly was not a situation where he’s immune during his four or eight years, then he can do anything he wants.
And he also went on to say —
By the way, I don’t think it says that he can do anything he wants.
It just means that civil and criminal prosecutions will take place after the presidency.

Well, if you’re not investigating, then you’re not —
He’s also called for impeachment as a remedy.

Yes, well, that’s a piece of the Constitution he seems to respect, and he said, ‘Well, that’s’ — He said, ‘That’s the only piece —
Wait, that seems — That seems so odd to you, that he might respect something of the Constitution, even though he’s a D.C. Circuit Court justice.
I mean, that’s the kind of rhetoric I’m saying that just — it does give people pause, and if people listen to Jeff Merkley, they’ll really think that our Constitution is unraveling, and that is not good for our democracy.

The core vision of our Constitution is under dramatic assault.
The core vision was to produce a government, like Lincoln said, of, by, and for the people.
Now we have government of, by, and for the powerful.

Do you have, at all, an open mind about Judge Brett Kavanaugh?

I am certainly ready to hear him out.
I’ve said that he can — You know, I look forward to having him in my office.
I’ll ask him lots of questions.
But I do think we have to have a thorough examination of his entire record.
We have the standard with Judge Kagan in which Republicans said that because she was part of an administration, they had to have every piece of paper that she had written.
We need to apply the same thorough review, certainly in this case, with Brett Kavanaugh.

‘Firing Line’ is a resurrected program.
William F. Buckley aired it for 33 years, and he talked about exactly these issues with some of his guests.
So I would like to share with you a clip from an original ‘Firing Line’ and his guest, who’s now governor of California, Jerry Brown, about what they said about the Supreme Court in 1975.

I think the Court is carrying on in the best way they can in a very difficult time.
We are in a society where it is very hard to find the consensus.
We are fragmenting.
We’re proliferating at every level of economics and morality and politics, and the Court is a unifying mechanism and a beacon of light if it acts wisely.
And I think by and large, given the complexity of our country, the heterogeneity of our people, they’re doing an excellent job, and I would not try to second guess this or that decision, because I have complete confidence that over time, that through the changing of presidents and the changing of the judiciary, there is this balance between the momentary perception of what needs to be done and the more — the more elementary articulation of what the principles are by which we all live.

Well, that’s — I think that’s a lovely tribute to the Supreme Court, and very moving.

That was a Republican-appointed Court he was referring to.
It was the Burger Court.
There were more Republican nominees on the Court at that time, and you don’t see Jerry Brown saying that the Court is anti-American or shredding the Constitution.

Well, you might hear him say it today, because the Court’s very different than it was 43 years ago when he made those comments.
That’s when I came out of high school, and, quite frankly, I had the same vision of the Court at that time.

I want to move on, because you have been to Iowa once and New Hampshire three times.
Is the progressive candidacy the way back to the White House for Democrats?

Well, how about the fight for the middle class?
How about the fight for good stewardship of our planet?
How about the fight to restore the vision of our Constitution, that vision of opportunity for everyone no matter which side of the railroad tracks you come from?

Do you think the Democratic Party mainstream right now is insufficiently progressive?

It is moving in the right direction towards the real fight for the success of thriving families.

Do you believe the President has a responsibility to bring the nation together and to unify the country?

I think the President has a responsibility to honor the Constitution and to fight for families across the country, not simply for the powerful and the privileged.

But if you were president, it strikes me that… Really, the job of the President is to unify the country, and so how would you do that?

Let’s be clear — I’m exploring the possibility, but I haven’t declared a race —
This is all hypothetical.

But I do feel that those folks who voted for Trump because he said he’s gonna fight for workers, those folks who voted for him because he said he was gonna take on the drug companies and lower the cost of drugs, those are — that’s a coming together of both sides.
Those are things we’re fighting for as well.
So let’s actually, instead of — instead of having that be the campaign so separated from the reality, how about that actually be the reality?

Jeff Merkley, thank you for coming to ‘Firing Line’ to share your views and to have an exchange of ideas and opinion.
That is the tradition of ‘Firing Line,’ and I welcome you back any time.
Thank you so much for coming.

Thank you so much.
It’s a real pleasure.
Take care.

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