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What Kavanaugh’s confirmation means for the future of the Supreme Court

The Senate’s vote to confirm Brett Kavanaugh to the Supreme Court came after weeks of furious debate over allegations that he committed sexual assault and questions of whether his temperament was fit for the nation’s highest court. Jamie Floyd, a legal analyst for WNYC, and Emily Bazelon, a staff writer for The New York Times Magazine, join Hari Sreenivasan to discuss how the confirmation will affect the country for decades to come.

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  • HARI SREENIVASAN:

    I'm joined here in the studio with Jamie Floyd, she's a legal analyst at New York Public Radio and a local host of WNYC's, 'All Things Considered.' And also with us from New Haven, Connecticut is Emily Bazelon, staff writer for The New York Times Magazine and a lecturer at Yale Law School.

    Thank you both for being here.

    Let me start with something that happened last night. I want to play a clip here for you, if I can. At Princeton University current Supreme Court justices Sonia Sotomayor and Elena Kagan remarked on their experiences in the Supreme Court, in what they acknowledged was a politically divided time. Take a listen.

  • ELENA KAGAN:

    It's an incredibly important thing for the court to guard is this reputation of being fair, of being impartial, of being neutral and of not being simply an extension of the terribly polarized political process and environment that we live in. And and you know this is a challenge.

  • HARI SREENIVASAN:

    Jamie Floyd, I want to start with you. As the other two branches of government become increasingly polarized, will it be possible to keep that out of the Supreme Court? I mean, what kind of damage has been done to that institution during this confirmation hearing?

  • JAMIE FLOYD:

    Well, clearly Elena Kagan and Sonia Sotomayor who was there with her at Princeton, are concerned about that and I'm so glad, Hari, that you started here with the two of the women justices speaking on this point. They're clearly very concerned and this is an extraordinary thing that they spoke about this. Justice Kagan went on to say that the legitimacy of the court relies upon public confidence in the court and in its independence. That if the public loses faith in the court, loses respect for the court and loses a sense of credibility, of the court's credibility that they won't listen to what we tell them to do. That's basically what came out and said. We tell them we don't have an army, she said we don't have an army we can't order with masses of force, the public to do things. We order through our legitimacy. And without that, all is lost for the court, and that's her concern. And she said that last night and it was a bold thing to say and I'm so glad you started there because it shows tremendous concern on the part of at least these two justices about what's happened these last few weeks.

  • HARI SREENIVASAN:

    Emily Bazelon, what about the credibility of the court? How has that been put into question, especially with the number of women and men who believe the accuser, not the accused in this situation?

  • EMILY BAZELON:

    Right. I think the court does face questions about its legitimacy and the fact that Brett Kavanaugh in his second round of testimony launched a, you know, heated partisan attack against Democrats, will give a lot of people questions about his impartiality. The best way for the court to try to deal with that as a body is to be unified when possible. But we're facing a situation that is very different than the last 60 years. Over the last 60 years, we have had swing justices and justices who drifted ideologically. So we had a lot of Republican appointees not behaving as partisan actors and really giving the court an image and a reality of impartiality and non partisanship. Now, we have five committed conservative Republican appointees and four more liberal Democratic appointees. And that partisan division is going to be a real challenge for the court going forward with exactly these kinds of legitimacy questions you're asking.

  • HARI SREENIVASAN:

    Jamie Floyd, the conversation that was spurred by Susan Collins yesterday, she made an impassioned argument for her reasoning on why she voted the way she did. She made her, in her case, she talked about the presumption of innocence, which resonates enormously with the people who support Kavanaugh right now. She's saying it comes back down to that, I needed more evidence to corroborate this. That seems like a reasonable charge.

  • JAMIE FLOYD:

    But this was not a court of law. And the Kavanaugh tractors, if you will, pointed that out. We are not in a court of law and perhaps we need a different standard to apply when we're to advise and give consent to a president who's making an appointment. And so now, Justice Kavanaugh I hope, I hope and I'm sure he was listening to Senator Collins when she made an appeal to him to set aside the bias that was revealed in his opening statement, to set aside concerns about why perhaps this was happening to him at this time because now he's going to have to convince people that some of those words that were spoken and he wrote in The Wall Street Journal on Thursday that he was speaking as a son, as a father and as a husband perhaps not as a jurist but now he has to be a jurist on the highest court in the land. And so Senator Collins is hoping that he can returned to the temperament we saw in the first round of hearings rather than the man we saw in that second round.

  • HARI SREENIVASAN:

    Emily Bazelon, you know, in terms of the supporters you see this and I just picked up this off of Twitter that this is not a vote against women or for rape. It's a vote for due process, fairness and the principle of innocence until proven guilty — whether in the court of law or the court of public opinion. No corroboration, refuted claims. That seems to be something that resonates especially in the base that supports Trump right now. They're just as excited about the fact that he is becoming a Supreme Court Justice as the people who believe Christine Blasey Ford and are very disappointed and frustrated.

  • EMILY BAZELON:

    Those are worthy principles and principles we should hold dear. I think there's a certain irony in hearing them strongly from conservatives who, in other settings have been quite quick to reduce the presumption of innocence when there are a lot of people's lives are on the line, when people go to prison. A lot of poor people, a lot of people of color. And I think also there's important context here about sexual assault and the problems women have had in the past with being believed, with being found credible. There was a lot of lip service to the idea that Christine Blasey Ford was credible and yet in the end that didn't seem to matter so much. It was this is if the goalposts had moved for her.

  • HARI SREENIVASAN:

    I want to ask you both. Emily, first. what are the political ripples of this? Does this galvanize enough people on either side? It seems like it's galvanizing both sides to show up to the polls in six weeks.

  • EMILY BAZELON:

    You know traditionally conservatives have been much more successful and mobilizing their base around the importance of the Supreme Court. That has a lot to do with the idea of overturning Roe versus Wade. Now they've gotten an appointment that they dearly wanted. And the question will be whether they stay motivated or whether it is Democrats and liberals who, you know, feel outraged by this confirmation who will come to the polls in November. That's the big question. And going forward we'll have to see how this court performs in terms of how the American people response to it. Does it stay in sync with the American public or does it start to stray far afield from the kinds of decisions people will support?

  • JAMIE FLOYD:

    We do find that it is the losing side that is motivated in the midterm process and here that would be women, people who have felt victimized by sexual assault and sexual harassment.

  • HARI SREENIVASAN:

    Right

  • JAMIE FLOYD:

    And clearly those who ideologically did not agree with the Cabinet nominations. So it remains to be seen in just a few short weeks in November.

  • HARI SREENIVASAN:

    All right. Jamie Floyd, Emily Bazelon, thank you both.

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