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Have Supreme Court appointments always been partisan affairs?

Supreme Court nominee Brett Kavanaugh's response to allegations of sexual assault, along with Republicans’ refusal to withdraw his nomination, have raised questions over partisanship on the nation's highest court. Columbia University Law School professor Jamal Greene and National Public Radio’s legal affairs correspondent Nina Totenberg join Hari Sreenivasan to discuss.

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  • HARI SREENIVASAN:

    The Kavanaugh confirmation hearing, the FBI investigation now underway and Monday's start of a new Supreme Court term are many stories in one. To put them in perspective, we're debuting a new segment we call Weekend Exchange. It's not a debate, but a chance for different perspectives to add to the context of what we're all talking about. Joining me today here in the studio is Columbia University Law School Professor Jamal Greene and from Washington D.C. National Public Radio's legal affairs correspondent Nina Totenberg. Nina, let me start with you. I just want to remind our viewers it was really your reporting on Anita Hill back in 1991 that led to the Senate committee reopening the conversation about Clarence Thomas. How different does this episode feel to you?

  • NINA TOTENBERG:

    Well it is different because we are in the #MeToo movement and I reread the Thomas-Hill confirmation hearing again this week and nobody could talk to a witness alleging sexual harassment or sexual assault. The way that the committee Republicans or even Democrats did, back then, you couldn't do that today. However, there are a lot of parallels, including the Republican desire to push this through as fast as possible and to rescue a nomination that's in trouble really at this point. A lot hangs in the balance.

  • HARI SREENIVASAN:

    Jamal Greene, this investigation. Is there enough time for it? And you know what, when you think back to the time that they looked into Clarence Thomas. Those were adults in a workplace. He was her boss. That took four days. This is totally different.

  • JAMAL GREENE:

    Well certainly it's not quite the same in that there are more kind of loose threads going on in this investigation. The FBI has a lot of resources at its disposal when it does criminal investigations and of course this is this is different, this is a background check. But when they when they do criminal investigations, they can do quite a lot in a week and I'm sure, given how high profile this situation is, it will get attention from the highest levels of the FBI and they can do quite a lot in that span of time, interview a lot of witnesses, and try to tie some of the loose threads in this case.

  • HARI SREENIVASAN:

    Nina Totenberg, the tone and the temperament of Kavanagh changed dramatically between the first time that he met with those senators or testified in front of them versus what he just did this week. Do the members of the Supreme Court watch these confirmation hearings?

  • NINA TOTENBERG:

    Oh you better believe it. But they know Brett Kavanaugh, or at least they thought they knew him. I thought I knew him. The Brett Kavanaugh who testified this week is nothing like the Brett Kavanaugh I have seen over the years and I suspect it's nothing like what they've seen over the years after all Elena Kagan, Justice Kagan, hired Brett Kavanaugh to teach at Harvard Law School, and his students love him, including a lot of female students who I've talked to.

  • HARI SREENIVASAN:

    You know speaking of Elena Kagan she said something earlier this week. I want to pull out a quote. It says, American governance depends on people believing that it is not simply an extension of politics, that its decision making has a kind of integrity to it. She was talking about the institution of the Supreme Court. Jamal. how much is the question of the integrity of the court in play now. given the opening testimony and what's happening in the past week?

  • JAMAL GREENE:

    I think it's very clearly in play it would be in play anyway even if Kavanaugh had never testified given how dug in the sides in this issue are but Kavanaugh began his testimony with as partisan a statement as you'll ever see from a sitting judge. And so he injected quite a bit of partisanship into the situation. Obviously his supporters are going to say that it was already there to begin with, but we're not used to seeing the veil really come off of the court in, in quite that overt a way and I think it's going to take a long time for the court to recover from this, no matter what happens.

  • HARI SREENIVASAN:

    Just in the past couple of years we've had a couple of incidents where Ruth Bader Ginsburg famously apologized after calling then-candidate Trump a faker on the campaign trail then we have Neil Gorsuch, the justice who gave a speech to a group at a Trump hotel. And whether that was proper or not. Are the times changing?

  • NINA TOTENBERG:

    Well Justice Ginsburg apologized. I don't think that speaking at a Trump hotel for all of the potential unseemliness of it is quite like this. I've actually never seen a nominee for anything significant give that partisan a state- opening statement, and say this is revenge on behalf of the Clintons, from a person who was involved in the Kenneth Starr investigation of the Clintons. You know, I was talking to one professor this week who calls himself a right-wing nut and he was appalled. That's his word appalled.

  • HARI SREENIVASAN:

    Jamal, it's been awhile since we had a justice that voted unpredictably that a president had appointed them and then all of a sudden they're doing the opposite. Considering the last few justices we have, should we just explicitly make these partisan appointments?

  • JAMAL GREENE:

    While they are partisan appointments. I'm not, I mean I'm not sure that there is anything implicit about it. Everyone sort of knows that Brett Kavanaugh is expected to have political views that align with people who appointed him. I will say that we have seen some surprises from John Roberts in particular in recent years, in the Affordable Care Act case for example and that was a momentous case. But I do think it's quite right that we're even moving gradually in a direction of being able to predict the ways in which the justices on the court decide cases. And it's an open question how long the court can maintain whatever veneer it has left of being a nonpartisan institution over time.

  • HARI SREENIVASAN:

    Finally Nina I want to ask, the collegiality that exists inside, between those nine people. I mean these are people who have to come to work everyday for the rest of their lives with this group of people. I mean, we famously know that Ruth Bader Ginsburg had found common ground with Antonin Scalia, someone her ideological sort of opposite on the court. But once this process happens, and they're sitting in that room making those decisions, what's that relationship like?

  • NINA TOTENBERG:

    You know for each of them, I think, to some extent, like being married for life to eight people. They have to get along. Now that hasn't always been true. There have been times when the court was called nine scorpions in a bottle. But this court, and for many many years — and I've covered the court now for a lot of decades, an unspecified number of decades — they make a real effort to get along with one another and to respect one another and to respect one another's views. And even though I'm sure that each of them knows they vote differently in national elections they do not consider themselves partisans, they consider themselves judicial ideologues or at least people who believe in some of a particular framework of the law which is different than being a partisan, and as a result you get some very interesting coalitions from time to time. Those times are getting rarer. It used to be that there was a moderate center of the court. The center moved from center liberal to center conservative to quite conservative to now, if Kavanaugh or even anybody else likely to be named by Trump is confirmed it will be a very, very conservative court. But that is different than being an active partisan, which is what Kavanaugh portrayed himself as in that hearing this week.

  • HARI SREENIVASAN:

    NPR's Nina Totenberg and Columbia University Law School's Jamal Greene, thank you both.

  • JAMAL GREENE:

    Thank you.

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