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How the next justice could reshape the Supreme Court

President Trump has a second opportunity to leave a lasting mark on the high court. Judy Woodruff gets context and analysis on the possible nominees from Marcia Coyle of The National Law Journal, former Acting Solicitor General Neal Katyal and Christopher Landau, a former clerk to Justices Clarence Thomas and Antonin Scalia.

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  • Judy Woodruff:

    Tonight, President Trump has his second opportunity to leave a lasting mark on the Supreme Court.

    With us now, ahead of the announcement, are three seasoned court watchers, "NewsHour" regular Marcia Coyle, who covers the court for "The National Law Journal." Neal Katyal is a former acting solicitor general who clerked for justice Stephen Breyer. And Christopher Landau, who has also argued before the court and has clerked for Justices Clarence Thomas, as well as the late Antonin Scalia.

    And we welcome all three of you to the program.

    Marcia, I'm going to start with you.

    Before we talk about the people who we think are the finalists who the president is going to name, let's talk about what the departure of Justice Kennedy means.

    How much has this court changed as a result of Justice Kennedy?

  • Marcia Coyle:

    Well, I think you do have to start with Justice Kennedy in order to understand how the next justice can be so important.

    Justice Kennedy was that crucial fifth vote in a number of very high-profile areas, like same-sex marriage, voting rights, abortion, First Amendment, religion. I could keep going.

    It was his tendency at times to move to the left, even though he was a conservative, is a conservative. But it was his movement to the left that secured certain victories for the court's left wing and for those who were social liberals and moderates.

    So, with the addition of the new justice, who, looking at the field that President Trump has been looking at, all appear to be very strong conservatives, that may well give the Supreme Court a very strong working conservative majority for years to come.

    And the likelihood of any of those nominees or potential nominees moving to the left may not be as great as we have seen with Justice Kennedy.

  • Judy Woodruff:

    Neal Katyal, I think we have to quickly look, as Marcia is saying, at the legacy of Justice Kennedy in order to understand how much difference this new justice can make.

  • Neal Katyal:

    Absolutely.

    So, I think you started the program by saying that Supreme Court nominations are one of the most important things a president does. But this seat in particular, it's the most important seat on the Supreme Court.

    And, as Marcia is saying, you know, if the nominees, the four short list, are picked, there is a risk that this court becomes the most conservative list, not just in our lifetime,s but going back to the 1930s.

    I think the great thing about Justice Kennedy — and I argued before him 37 times — and every single one of those times, he was listening with an open mind. And that doesn't always happen in our nation's courts. And that's what made him so remarkable.

  • Judy Woodruff:

    Christopher Landau, how do you see the legacy of Anthony Kennedy and how much difference this next pick could make?

  • Christopher Landau:

    Justice Kennedy has certainly had a very important role, as Marcia and Neal said, in a whole number of areas.

    I do think, though, that it's important to keep in mind that the Supreme Court is a very small institution. It's nine people. And when you change any one of those people, in a sense, the others rearrange themselves, like the pieces on a chessboard.

    So I wouldn't necessarily assume that you just plug in a replacement for Justice Kennedy, and everybody else necessarily stays where they are. It may cause other people to shift around. So, it's always a very dangerous bet to assume you know exactly what's going to happen when you introduce a new factor into such a small group of people.

  • Judy Woodruff:

    So, with that, Marcia, let's talk a little bit more about these four. You said a minute ago they're all conservative, but they're different kinds of conservative, different — what do you mean by that?

  • Marcia Coyle:

    Well, first of all, I think they're strong conservatives.

    And I think we can take that as a given, because they have been vetted and approved by the conservative Federalist Society, which has helped construct the list for President Trump of who should be — in their opinion, should be on the Supreme Court.

    And even those who have been unhappy with Justice Kennedy, conservatives unhappy with Justice Kennedy over the years have not really criticized the four short-listers that the president is looking at.

    Now, you're right. They're not all the same. They all espouse originalism and textualism, but to different degrees. Some seem stronger than others.

    But you take them individually, you can see some of their differences in where they come from, where they were educated.

    Take Judge Kavanaugh, for example. He's probably considered the most insider of the four short-listers. Partially, geography. He's been here in the — Washington, D.C., on the federal appellate court for 12 years. He has the pedigree that President Trump really admired in Justice Gorsuch, Yale — on Yale. In fact, those two judges actually went to the same prep school.

    And then you have, to the extreme, the outsider, which would be Judge Hardiman, who doesn't have the Ivy League pedigree, although he went to a very fine law school, Georgetown University.

  • Judy Woodruff:

    What would you add, Neal Katyal?

    How do we look at these four? How do you see their differences?

  • Neal Katyal:

    Well, I loved Marcia's point about Georgetown, where I teach. That is a very fine university, so thank you.

    (LAUGHTER)

  • Neal Katyal:

    Look, I think that this isn't — it's hard to assess this — these four nominees in a vacuum.

    I think the real concern is, is the president going to pick among these four based on who's the most qualified for our nation, or is he going to pick it based on who's the most qualified for him?

    And this is the first president in a long time to be making Supreme Court nominations while his administration is under such serious criminal investigation. And so this process, yes, it has selected — down to four, supposedly, as we have learned, but how he's picking among those four, what's the confidence that things have come up as to his cases and the like with these nominations?

  • Judy Woodruff:

    How do you see the differences, Christopher Landau, among the four?

    I mean, as we have said, yes, they're all conservative, they're all originalist in their reading the Constitution. But what does that mean? What do you see as the distinction here?

  • Christopher Landau:

    Well, first of all, I would just like to say, I think this is another area where President Trump has somewhat broken the mold, with a remarkably transparent process, campaigning on a specific list of judges.

    And I think that's for a reason, that they are all extremely well-qualified, well-vetted people. I think we're not likely to get a David Souter nomination that comes completely out of the blue, or Harriet Miers kind of nomination.

    I think these are all just people with stellar backgrounds.

  • Judy Woodruff:

    You're saying they were less qualified?

  • Christopher Landau:

    I'm just saying that they came out of the blue.

    I think these are all people who people know in advance, and they're known quantities. And I think that that, in a sense, I think, has made the process this time, I think, very different than in the past, where we had no idea what was coming.

  • Judy Woodruff:

    Marcia, there have been some dramatic pronouncements made, predictions made, that if the president goes this way, the court's going to change dramatically, if he goes another way.

    I mean, are we looking at either gloom and doom or, I mean, what — I mean, how…

  • Marcia Coyle:

    I think it depends on your perspective, gloom and doom.

  • Judy Woodruff:

    Well, that's true. It is.

    But, I mean, how wide is the — are the array of possibilities for what this pick could mean?

  • Marcia Coyle:

    Well, I think, again, you come back to Justice Kennedy's seat and what will happen with the nominee who fills that seat and faces the kinds of issues where Justice Kennedy made a difference.

    In terms of how conservative these four all, there have been recent studies by political scientists that put them on a scale and say Judge Hardiman is somewhere between Kennedy and Roberts, and that Judge Kavanaugh is the most conservative.

    But their differences are so small when they're measured that way. You just don't know until a justice gets there really how they are going to be.

    These are relatively young. They have been on the bench, Kavanaugh 12 years, 10 years, 11 years.

    The one who is truly unknowable is Judge Barrett, who's been a federal judge for eight months. So, you don't really know, Judy, until they face — but it's going to be a huge change, in the sense that you will have a solid working conservative majority.

  • Judy Woodruff:

    Neal Katyal, how much difference can this make on the court in years to come?

  • Neal Katyal:

    I can't overstate the importance.

    The relevant comparison is not the four to each other. It's any of the four to Justice Kennedy. And when you think about his pivotal votes on affirmative action, on abortion, on a whole — capital punishment, on a whole host of issues, these four are very much to the right of him.

    So the court are going to change. And Trump is proud of that. I mean, this is not something that he's shied from.

  • Judy Woodruff:

    Christopher Landau, the court's going to change in the conservative direction dramatically?

  • Christopher Landau:

    You know, Judy, we have been using the word conservative a lot.

    I think it's important for the viewers to understand that, when we're talking about conservatives on the court, it's very different than talking about political conservatives and liberals.

    You can have a judicial conservative who, regardless of what his or her political views may be, just thinks the role of a judge in our democratic society is very limited.

    So, I think when we're talking about, is this person more or less conservative, I think it's important to remember that we mean something different in conservative in the judicial realm than we necessarily mean in terms of conservative in the political realm.

  • Judy Woodruff:

    Well, there's going to be a lot of assessing and weighing of this choice as soon as we find out what it is in a little under three hours.

    Christopher Landau, Neal Katyal, Marcia Coyle, thank you, all three.

  • Neal Katyal:

    Thank you.

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