Braude: TONIGHT ON "GREATER BOSTON": NEWLY CONFIRMED U.S. ATTORNEY FOR MASSACHUSETTS, RACHAEL ROLLINS, JOINS ME FOR THE FIRST TV INTERVIEW AFTER THE HISTORIC SENATE VOTE.

WE'LL TALK ABOUT THE WAVES SHE'S MADE SO FAR AND THE ONES SHE'S LOOKING TO MAKE IN THE FUTURE.

PLUS, SOME OF THE HIGH-PROFILE CASES SHE'LL INHERIT ON DAY ONE.

THEN, LATER, RETIRED FEDERAL JUDGE NANCY GERTNER AND UNIVERSITY OF ALABAMA CONSTITUTIONAL LAW PROFESSOR TARA GROVE -- TWO MEMBERS OF JOE BIDEN'S SUPREME COURT COMMISSION -- JOIN ME ON THEIR JUST-ISSUED FINAL REPORT, EIGHT MONTHS IN THE MAKING.

THEY'LL WEIGH IN ON WHAT THEY CAME UP WITH, SOME OF THE CRITICISM THEY'RE GETTING, AND SOME OF THE BIG QUESTIONS LE FT SOME OF THE BIG QUESTIONS LE UNANSWERED ABOUT COURT EXPANSION AND TERM LIMITS.

♪♪ >> Braude: HER CONFIRMATION AS THE NEW U.S. ATTORNEY FOR MASSACHUSETTS WAS A CONTROVERSIAL ONE, BUT CONTROVERSY IS NOTHING NEW TO RACHAEL ROLLINS.

WHEN SHE RAN FOR SUFFOLK COUNTY DISTRICT ATTORNEY BACK IN 2018, SHE GOT NATIONAL ATTENTION, AND PLENTY OF CRITICISM, FOR A LIST OF CRIMES SHE SAID HER OFFICE WOULD NOT, IN MOST CIRCUMSTANCES, PROSECUTE.

A PROPOSAL BOTH LOCAL AND NATIONAL POLICE ASSOCIATIONS CALLED "DANGEROUS," "SOFT ON CRIME," AND CLAIMED SHOWED A "RECKLESS DISREGARD" FOR THE LAW.

BUT MORE THAN 70% OF SUFFOLK COUNTY VOTERS DISAGREED, ELECTING HER IN A LANDSLIDE, MAKING HER THE FIRST BLACK WOMAN EVER TO SERVE AS A MASSACHUSETTS D.A.

AND WHEN SHE PUT THOSE POLICIES INTO ACTION, HER PRIORITIES SEEMED TO PAY OFF, ACCORDING TO B.P.D.

DATA FROM EARLIER THIS MONTH, WHICH SHOWS VIOLENT CRIMES WERE DOWN BY MORE THAN 20% THIS YEAR, COMPARED TO THE FIVE-YEAR AVERAGE, AND PROPERTY CRIMES, LIKE BURGLARY AND CAR THEFTS, WERE ALL DOWN 14%.

DESPITE THAT, AFTER BIDEN NOMINATED ROLLINS TO THE U.S. ATTORNEY ROLE THIS SUMMER, REPUBLICANS IN THE SENATE DID THEIR BEST TO STOP A VOTE FROM EVEN HAPPENING.

AND WHEN IT FINALLY DID?

WE HEARD ARGUMENTS LIKE THIS ONE: >> GOD HELP YOU IF YOU DON'T WANT VIOLENT CRIMINALS ROBBING YOUR STORE.

GOD HELP YOU IF YOU DON'T WANT DRUNKEN, HOMELESS PEOPLE SETTING UP TENTS IN YOUR FRONT YARD.

>> Braude: YEAH, BUT CRUZ ASIDE, WITH UNANIMOUS SUPPORT FROM DEMOCRATS AND KAMALA HARRIS HAVING TO MAKE TWO TRIPS TO CAPITOL HILL TO BREAK TIES, ROLLINS WAS CONFIRMED WEDNESDAY, BECOMING THE FIRST-EVER BLACK WOMAN IN THIS JOB, TOO.

RACHAEL ROLLINS JOINS ME NOW.

>> Braude: U.S. ATTORNEY, CONGRATULATIONS!

>> THANK YOU SO MUCH, JIM.

>> Braude: I SHOULD BE CLEAR, I JUST CALLED YOU U.S. ATTORNEY, BUT YOU'RE NOT YET, YOU'RE STILL THE SUFFOLK D.A.

-- >> I'LL TAKE IT.

BUT, YES, I'M TECHNICALLY THE D.A.

UNTIL I'M SWORN IN AS THE U.S. ATTORNEY, CORRECT.

>> Braude: WHY DID YOU WANT THIS JOB?

YOU GO FROM A JOB WHERE YOU HAVE VIRTUALLY TOTAL AUTONOMY, TO HAVING A BOSS WHOSE LEAD YOU HAVE TO FOLLOW, IN THIS CASE, MERRICK GARLAND, AND WHY WOULD YOU SAY YES?

>> I BELIEVE WE HAVE A PROOF OF CONTENT HERE IN SUFFOLK, AND I THINK IT SHOULD BE BROUGHT UP TO SCALE FOR THE REST OF THE COMMONWEALTH.

BOSTON IS ONE OF THE MAJOR CITIES WHERE VIOLENT CRIME IS DOWN, AND WHY SHOULDN'T LAWRENCE AND LYNNE AND HOLYOKE AND SPRINGFIELD, BENEFIT FROM THE EXCELLENT WORK THAT THE MASSACHUSETTS POLICE AND CHELSEA AND OTHERS DO WITH THE SUFFOLK COUNTY D.A.

OFFICE?

WHEN ASKED, I WAS HUMBLED AND HONORED.

IT HAS BEEN A LONG ROAD TO GET HERE, BUT IT IS ALL THE SWEETER BECAUSE OF HOW HARD IT WAS.

>> Braude: BUT HOW DO YOU APPLY WHAT YOU CALL PROOF OF CONCEPT -- YOU'RE MOST KNOWN FOR THE 15 CRIMES WHERE THE REBUTTABLE PREIMAGINATION IS PRESUMPTION IS YOU WON'T PROSECUTE -- MY UNDERSTANDING IS THERE AREN'T THAT MANY FEDERAL OFFENSES ON THE BOOKS -- AM I CORRECT OR AM I MISSING SOMETHING?

>> YOU ARE.

THESE ARE THE TYPES OF CRIMES I'M GOING TO BE FLIPPING THE PRESUMPTION ON.

I HAVE NEAR COMPLETE AUTONOMY AS THE D.A., AND REPORT TO NO ONE BUT THE VOTERS OF SUFFOLK COUNTY.

AS U.S. ATTORNEY, I REPORT TO THE DEPUTY ATTORNEY GENERAL, THE ATTORNEY GENERAL, AND THE PRESIDENT PRESIDENTTHE PRESIDENT OF THE UNITED STATES.

SO WHAT I EXPECT TO DO IS USE MANY OF THE GREAT THINGS WE DID IN SUFFOLK COUNTY, WITH RESPECT TO TRAINING AND EDUCATING THE DIFFERENT COMMUNITIES WITH ALL OF THE SERVICES WE CAN PROVIDE AS THE FEDERAL GOVERNMENT.

WE HAVE A WHOLE CIVIL BRANCH, A CIVIL RIGHTS UNIT, AND WE HAVE TERRORISM AND NATIONAL SECURITY AND ECONOMIC CRIMES.

THERE IS A HUGE REACH ON THE CRIMINAL AND THE CIVIL SIDE THAT THE U.S. DISTRICT ATTORNEY HAS THAT DISTRICT ATTORNEYS DON'T.

MAYBE NOT REFUSING OR DECLINING TO PROSECUTE A REBUTTABLE PRESUMPTION, BUT CERTAINLY THE CULTURAL COMPETENCY, AND GOING INTO COMMUNITIES AND EXPLAINING WHAT WE CAN DO AND HEARING FROM THAT WHAT THEY WANT OUR GOVERNMENT TO DO FOR THEM.

>> Braude: I ACTUALLY -- AFTER HAVING SAID IT, I COULDN'T THINK OF ANY MINOR OFFENSES IN THE CRIMINAL CODE.

I JUST THOUGHT OF POTENTIALLY ONE.

HOW ABOUT MARIJUANA CASES?

ARE YOU GOING TO PROSECUTE ANY MARIJUANA CASES?

>> GREAT QUESTION.

THERE ARE A FEW AREAS WHERE THE STATE LAW -- DEPENDING ON WHAT STATE YOU ARE IN -- AND THE FEDERAL REQUIREMENTS AND LAWS ARE IN CONFLICT.

IMMIGRATION, FOR EXAMPLE, WE SAW THAT ERUPT BACK IN 2019, AND I WAS PROUD OF THE POSITION I TOOK AS D.A.

WITH D.A.

RYAN IN MIDDLESEX REGARDING I.C.E., BUT AS THE U.S. ATTORNEY, YOU DEFEND I.C.E.

WHEN THEY'RE SUED.

SIMILARLY WITH MARIJUANA, WHERE THE COMMONWEALTH HAS MADE IT RECREATIONAL, IT STILL A CRIME FEDERALLY.

MY INTENT IS TO LOOK AT SPECIFIC DISTRIBUTORS, MASSIVE DRUG KINGPINS WITH RESPECT TO MARIJUANA.

I'M NOT LOOKING TO BORROW SOMEBODY -- YOU BOTHER SOMEBODY, YOU KNOW, SCOOBY-DOO.

WE HEARD THERE IS AN UPTAKE IN FENTANYL IN MARIJUANA, SO WE HAVE TO BE DILIGENT WITH RESPECT TO THE UNREGULARED MARIJUANA THAT MIGHT BE COMING INTO OUR COMMONWEALTH.

>> Braude: ONE MATTER THAT DOES CONCERN ME THAT WILL BE PART OF YOUR JURISDICTION ONCE YOU'RE SWORN IN, IS ONE OF THE WORST THINGS THAT HAS HAPPENED IN THE STATE IN RECENT YEARS, IS THE DEATH OF MORE THAN 70 VETERANS AT HOLYOKE.

I'M SURE MOST PEOPLE WATCHING KNOW THAT THE CRIMINAL CHARGES BROUGHT AGAINST THE TO LEADERS OF THE HOME WERE DISMISSED BY A JUDGE A COUPLE OF WEEKS AGO.

MY RECOLLECTION IS MAYBE LAST SPRING, OR LAST SUMMER, THE U.S. ATTORNEY GENERAL ATTORNEY GENERAL'S DEPARTMENT BEGAN AN INVESTIGATION WITH WHAT HAPPENED AT HOLYOKE.

IS THAT SOMETHING YOU INTEND TO PURSUE AS U.S. ATTORNEY?

>> I WAS DEEPLY DISAPPOINTED TO SEE THAT THOSE CHARGES WERE DISMISSED.

I WAS PROUD THAT OUR ATTORNEY GENERAL BROUGHT THEM IN THE FIRST PLACE.

THOSE SOLDIERS DESERVED FAR BETTER BY THE COMMONWEALTH.

YOU KNOW, JIM, MY FATHER IS A VETERAN.

AND I BELIEVE THOSE MEN AND WOMEN SHOULD HAVE BEEN STAYING AT THE RITZ CARLTON, QUITE FRANKLY, AND NOT AT THIS PLACE WHERE THEY DIED.

IF THAT CASE IS STILL PENDING -- AND I HAVE NOT BEEN BRIEFED ON ALL OF THE CASES THAT ARE CURRENTLY PENDING AT THE U.S. ATTORNEY'S OFFICE -- THAT IS GOING TO BE A HIGH PRIORITY FOR ME.

I PROMISE YOU, JIM, THERE ARE EXCELLENT LAWYERS AT THE U.S. ATTORNEY'S OFFICE, THEY ARE WORKING HARD.

ACTING ATTORNEY GENERAL NATE MANDEL IS EXCELLENT, AND I'M LOOKING FORWARD TO BEING BRIEFED ON THOSE QUESTIONS.

>> Braude: DO YOU THINK ANDREW LELLING DID AN EXCELLENT JOB?

>> I THINK ANDY LELLING BROUGHT SOME IMPORTANT CASES.

I FEEL LIKE THE VARSITY BLUES CASE IS A GOOD EXAMPLE OF SHOWING THE DIFFERENCE OF WHAT THE D.A.

DOES AND POSSIBLY THE U.S. ATTORNEY'S DOES.

I TOLD YOU I RESPECT ANDY BECAUSE I KNOW HOW HARD THE JOB IS.

WE WERE BOTH THE CHIEF LAW OFFICERS FOR OFFICES OF 350 PEOPLE, AND IT IS VERY EASY TO SIT ON THE SIDELINES AND COMPLAIN AND TALK ABOUT THINGS YOU DON'T KNOW.

I DON'T HAVE A FIGHT WITH U.S. ATTORNEY LELLING.

>> Braude: CAN WE RETURN TO YOUR CONFIRMATION, I WAS UNAWARE UNTIL THE DAY OF THE VOTE, THERE WAS NOT A ROLL CALL VOTE ON THE U.S. ATTORNEY NOMINATION AND HALF A CENTURY.

I'M SURE YOU KNEW THAT.

80 SOME U.S.

ATTORNEYS MOST RECENTLY NOMINATED BY PRESIDENT TRUMP SAILED THROUGH WITHOUT ROLL CALL VOTES.

WE ALL KNOW NOT ONE REPUBLICAN VOTED FOR YOU.

ACTUALLY, WE SHOULD PLAY A LITTLE SOUND FROM THE REPUBLICAN WHO LED THE FIGHT AGAINST YOU, SENATOR COTTON.

HERE HE IS.

>> MS.

ROLL LAND APPEARS TO MEASURE SUCCESS AS A PROSECUTOR NOT BY HOW MANY INNOCENT PEOPLE SHE PROTECTS, BUT RATHER BY HOW MANY CRIMINALS SHE KEEPS FROM FACING CONSEQUENCES.

>> Braude: WHAT IS YOUR REACTION TO THE FACT THAT NOT ONE OF THE 50 REPUBLICANS THOUGHT YOU WERE FIT TO BE THE U.S. ATTORNEY FOR MASSACHUSETTS?

>> WELL, WE'LL PROVE THEM WRONG.

>> Braude: THAT'S NOT THE TYPICAL RACHAEL ROLLINS.

I'M SURE THERE IS MORE IN YOUR HEAD AND HEART -- >> AND IN MY BUN.

>> Braude: I'M SERIOUS.

>> I'M SERIOUS, TOO.

IT'S NOT WORTH A REACTION.

OUR NUMBERS SPEAK FOR THEMSELVES, JIM.

MY FIRST YEAR AS D.A., WE HAD A 20-YEAR LOW IN HOMICIDES.

IN 2019.

IN 2020, WHEN THE WORLD EXPERIENCED A GLOBAL PANDEMIC, WE HAD TWO MORE HOMICIDES THAN THE FIVE-YEAR AVERAGE, 53 INSTEAD OF 51.

AND THIS YEAR HOMICIDES ARE SIGNIFICANTLY DOWN.

THOSE ARE EXTRAORDINARY NUMBERS, AND I WILL NOT TAKE CREDIT FOR THEM BECAUSE I DID THAT WORK WITH THE BOSTON POLICE, THE MASSACHUSETTS POLICE, CHELSEA AND TRANSACTION TRANSIT POLICE.

BUT I WILL TELL YOU, IF THOSE NUMBERS WERE SKYROCKETING, I WOULD HAVE BEEN BLAMED.

BOSTON SHOULD BE A GOLD STANDARD FOR PLACES LIKE ARKANSAS AND OTHER PLACES WHERE THE MURDER RATE IS SKYROCKETING RIGHT NOW.

SO I'M PROUD OF OUR TRACK RECORD.

I PLEDGE TO WORK INCREDIBLY HARD WITH MY LAW ENFORCEMENT PARTNERS, AND WE'RE GOING TO CONTINUE TO MAKE SURE THAT THE DECLINE TREND IS DOWN IN BOSTON AND THE REST OF THE COMMONWEALTH.

>> Braude: I ONLY HAVE A COUPLE MINUTES LEFT.

IS THERE SOMETHING UNDONE THAT YOU HOPE TO FINISHwu YOUR SUCCESSOR FINISHES THE SUFFOLK OFFICE?

>> WE INTEND TO RELEASE SOME DISCHARGE INTEGRITY TEAM REPORTS THAT I AM WORKING HARD TO MAKE SURE THAT WE SPEAK TO THE COMMUNITY ABOUT.

I'VE ALREADY MET WITH THE FAMILIES, OR OUR OFFICE HAS SPOKEN WITH THE FAMILIES, WHO LOST THEIR LIVES IN AN ENCOUNTER WITH LAW ENFORCEENT, AND THEN WITH THE MEMBERS OF LAW ENFORCEMENT AS WELL.

I WANT TO GET THAT DONE BEFORE I LEAVE.

AND THEN, HOPEFULLY, ONE MORE TOWNHALL IF I CAN.

BUT I'M NOT GOING ANYWHERE, JIM.

I'M GOING TO BE AT THE MOAKLEY COURTHOUSE, AND HOPEFULLY IN D.C. MAYBE ONCE OR SO A MONTH, BUT I IN INTEND TO WORK VERY CLOSELY WITH THE 11 DISTRICT ATTORNEY'S ACROSS THE COMMONWEALTH, AS WELL AS THE ATTORNEY GENERAL AND OTHER LAW ENFORCEMENT PARTNERS.

>> Braude: I WANT TO ASK YOU OF ONE SPECIFIC CASE YOU AND I DUFFED I DISCUSSED I THINK IN SEPTEMBER.

TYRONE CLARK WAS SITTING THREE FEET AWAY FROM ME AFTER SERVING 50 YEARS IN JAIL FOR A RAPE THAT WAS VACATED WITH YOUR APPROVAL.

WHEN YOU WERE HERE, I BELIEVE IN SEPTEMBER, YOU THOUGHT HE DESERVED COMPENSATION.

YET WHILE THE RAPE CHARGE WAS VACATED, TWO OTHER CONVICTIONS, BASED ON, I BELIEVE, THE SAME TESTIMONY WERE NOT, WHICH MAY STAND IN THE WAY AFTER 50 YEARS OF INCARCERATION OF HIM BEING COMPENSATED.

DO YOU INTEND TO DO ANYTHING ABOUT THAT CASE?

>> I DON'T THINK SO.

WE HAVE A LOT OF OTHER CASES.

BUT THE EXTRAORDINARY RELIEF THAT MR. CLARK RECEIVED AS A RESULT OF THAT INDIVIDUAL COMING FORWARD -- AGAIN, WE HAVE TO TALK ABOUT HOW BRAVE THAT INDIVIDUAL WAS -- BY COMING LONGER AND SAYING SHE COULD NO LONGER STAND, ESSENTIALLY, BEHIND HER IDENTIFICATION.

IT IS HARD STANDING UP FOR WHAT IS RIGHT, WHEN PEOPLE ARE CONSTANTLY QUESTIONING.

I AM INCREDIBLY PROUD OF THE TIME I HAVE STOOD FIRM AND SAID THIS JUSTICE WAS NOT DONE, AND DONE THE RIGHT THING, AND NOT OPPOSED BECAUSE THE COMMONWEALTH ALWAYS DOES, BUT RATHER STOOD UP AND SAID I WILL NOT PUT MY NAME ON A CONVICTION THAT WAS SECURED EITHER UNETHICALLY OR UNCONSTITUTIONALLY OR IS NO LONGER SUPPORTED BY EYE WITNESS TESTIMONY.

SO I'M VERY PROUD OF WHAT WE DID WITH MR. CLARK, BUT WE HAVE THAT VICTIM TO THANK FOR THAT.

>> Braude: WHEN I WAS THINKING ABOUT SENATOR CRUZ AND COTTON'S COMMENTS THE THAT YOU DIDN'T WANT TO RESPOND TO, WAS THERE ANY TRICKLE DOWN IMPACT OF WHAT THEY AND THEIR COLLEAGUES HAD TO SAY ABOUT YOU?

>> OF COURSE.

A LOT OF PEOPLE DON'T RECOGNIZE,5Z2?

AS WOMEN AND AS WOMEN OF COLOR, AND PARTICULARLY AS A BLACK WOMAN, THE LEVEL OF RACIST, HATE-FILLED DEATH THREATS WE RECEIVED.

MY SECURITY TEAM IS FIELDING CALLS WITH PEOPLE USING THE "N" WORD, AND SAYING THEY WANT TO PUT A BULLET IN MY HEAD.

THEY KNOW I HAVE CHILDREN.

NOBODY SIGNS UP FOR THAT, JIM.

NOBODY DESERVES TO BE TREATED THAT WAY.

AS I TOLD YOU BEFORE, I WANT TO DO THIS IMPORTANT WORK, BUT BEING A MOTHER AND A GUARDIAN TO MY NIECES IS FAR MORE IMPORTANT THAN BEING A D.A.

OR A U.S. ATTORNEY.

SO THE TRICKLE-DOWN EFFECT OF HATE IS, YOU KNOW, POTENTIALLY VIOLENCE, AND WE HAVE TO BE BETTER THAN THAT.

I SINCERELY HOPE THAT, YOU KNOW, THE PEOPLE IN WASHINGTON ARE A LITTLE BIT BETTER.

AND I THINK, YOU KNOW -- AND MYSELF, I WANT TO WORK ON THE LANGUAGE WE USE WHEN WE DISAGREE WITH EACH OTHER BECAUSE IT REALLY MATTERS.

>> Braude: I WISH YOU A LOT OF LUCK IN YOUR NEW JOB.

CONGRATULATIONS AND GOOD TO SEE YOU.

>> ALWAYS A PLEASURE.

>> Braude: NEXT UP, FOR THE PAST EIGHT MONTHS, 34 OF THE TOP LEGAL MINDS IN THIS COUNTRY, -- LEFT, RIGHT, AND CENTER -- AT THE CALL OF THE PRESIDENT, HAVE BEEN DOING A DEEP-DIVE ANALYSIS OF THE SUPREME COURT.

THEIR GOAL?

TO EXAMINE A SLEW OF PROPOSED REFORMS, INCLUDING INCREASING THE NUMBER OF JUSTICES ON THE HIGH COURT AND IMPOSING TERM LIMITS.

THE COMMISSION WAS A RESPONSE TO PRESSURE BY THE DEMOCRATS AFTER YEARS OF POLITICAL MANIPULATION IN THE SENATE THAT STOPPED ONE OBAMA NOMINATION WITHOUT EVEN A HEARING BUT CONFIRMED THREE FROM DONALD TRUMP, RESULTING IN WHAT'S LIKELY TO BE A FAIRLY LONG-TERM IDEOLOGY TILT.

SO AFTER EIGHT MONTHS, SIX PUBLIC MEETINGS, 44 WITNESSES, THE COMMISSION SUBMITTED ITS REPORT.

AND WHILE IT OFFERED ARGUMENTS FOR AND AGAINST THE PROPOSED REFORMS, IT STOPPED SHORT OF ANY SPECIFIC RECOMMENDATIONS, TO THE FRUSTRATION OF MANY.

AS THE EXECUTIVE DIRECTOR OF THE NON-PARTISAN GROUP "FIX THE COURT" PUT IT: "THE PRESIDENTIAL COMMISSION ON THE SUPREME COURT HAS FINISHED ITS WORK AND WITHOUT SATISFYING A SINGLE CONSTITUENCY ACROSS THIS WIDE COUNTRY OF OURS.

THAT, IN ITSELF, IS QUITE A FEAT."

JOINING ME TO DEFEND THE COMMISSION, I THINK, ARE TWO OF ITS MEMBERS, NANCY GERTNER, A RETIRED FEDERAL JUDGE AND SENIOR LECTURER AT HARVARD LAW SCHOOL, AND TARA GROVE, ENDOWED CHAIRHOLDER IN LAW AT THE UNIVERSITY OF ALABAMA SCHOOL OF LAW.

>> Braude: PROFESSOR, IT IS GOOD TO MEET YOU.

JUDGE, THANKS SO MUCH FOR BEING HERE.

>> GOOD TO BE HERE.

>> THANK YOU.

>> Braude: TARA, NO RECOMMENDATIONS UNANIMOUSLY, ARE YOU COMFORTABLE WITH THAT.

>> I THINK THAT IS CONSISTENT WITH THE PRESIDENT'S EXECUTIVE ORDER.

HE WANTED AN ANALYSIS, NOT A SERIES OF RECOMMENDATIONS.

AND, TWO, THAT IS WHAT THIS COMMISSION WAS CAPABLE OF DOING.

IT WAS A BIPARTISAN COMMISSION, AND THERE WAS A LOT OF DISAGREEMENT ABOUT THE PROPER SCOPE OF REFORM.

AND MY HOPE IS THAT WE HAVE DONE A LOT TO INFORM THE DEBATE.

ONE OF THE THINGS I WANT TO SAY, I HAVE BEEN SETTING COURT REFORM FOR WELL OVER A DECADE.

AND I HAVE LOOKED AT CONGRESSIONAL DEBATES.

I HAVE LOOKED AT CONGRESSIONAL REPORTS.

I HAVE LOOKED AT EXECUTIVE BRANCH MATERIALS, REALLY SINCETO THE PRESENT.

THERE HAS NEVER BEEN ANYTHING LIKE THIS WHERE DIFFERENT REFORMS WERE PROPOSED AND STUDIED AND AN ANALYSIS OFFERED.

>> Braude: JUDGE GERTNER, YOU WROTE A PIECE IN THE "WASHINGTON POST" WITH LARRY TRIBE, AND YOU MOVED FROM LEANING YES ON TERM LIMITS, AND NO ON COURT EXPANSION, TO NO ON TERM LIMITS AND YES ON EXPANSION.

SO CAN WE START ON TERM LIMITS?

WHAT CAUSED YOUR CONVERSION FROM A POSSIBLY YES TO A LIKELY NO?

>> ONE OF THE THINGS THAT WE WERE DEALING WITH AS A COMMISSION IS HOW EXTRAORDINARILY POWERFUL THIS SUPREME COURT IS.

YOU KNOW, LONG SERVICE, LONG TENURE, A CONSTITUTION THAT IS EXTRAORDINARILY DIFFICULT TO AMEND.

SO TERM LIMIT, WHILE I AGREE WITH THEM IN PRINCIPLE, WILL BE EXTREMELY DIFFICULT TO ACCOMPLISH.

FRANKLY, IT WAS THAT PRACTICAL -- IT WAS A PRACTICAL ISSUE MORE THAN ANYTHING ELSE.

WE STAND ALONG.

I THINK THIS IS RIGHT, TARA, IT'S THE ONLY COUNTRY IN THE WESTERN WORLD IN WHICH THERE ARE NO FIXED TERMS FOR THE SUPREME COURT OR RETIREMENT AGE.

SO IT OUGHT TO BE DONE.

BUT THE CUMBERSOMENESS OF DOING IT IS WHAT MADE ME BACK OFF.

>> Braude: LET'S GET THE THOUGHTS A FEW YEARS AGO WHEN JUSTICE BRIAR JOINED ME ON THIS VERY ISSUE.

>> I THINK THERE SHOULD BE A LONG TENURE.

IF IT IS A TERM OF YEARS OR NOT, MAYBE IT WOULD BE BETTER TO HAVE A TERM OF YEARS, BUT IT MUST BE LONG.

BECAUSE YOU DON'T WANT A PERSON IN THAT JOB THINKING ABOUT HIS NEXT JOB.

>> Braude: THAT'S WHAT JUSTICE BRIER THOUGHT A FEW YEARS AGO.

WHAT DO YOU THINK ABOUT THE CONCEPT OF TERM LIMITS?

>> I HAVE MIXED EMOTIONS ABOUT THE CONCEPT OF TERM LIMITS.

I THINK THERE ARE REAL PROBLEMS IN A SYSTEM THAT ALLOWS JUDGES TO SERVE FOR 40 OR 50 YEARS.

BUT I THINK IT IS ALSO VERY DIFFICULT TO START WITH A SYSTEM LIKE THAT AND TRY TO TRANSITION TO A SYSTEM OF LIMITED BUT STILL VERY LONG TERMS, LIKE 18 YEARS.

I AGREE WITH JUDGE GERTNER THAT IT LIKELY HAS TO BE DONE BY CONSTITUTIONAL AMENDMENT, AND THAT'S HARD TO DO.

BUT THEN WHEN YOU DESIGN A CONSTITUTIONAL AMENDMENT, THAT IS EQUALLY HARD?

DOES IT APPLY TO THE CURRENT JUDGES OR DO WE LET THEM SERVE OUT THEIR TERMS.

IF YOU DO LET THE CURRENT JUDGES SERVE OUT THEIR TERMS, WHICH A LOT OF PEOPLE WANT TO DO, WE'RE TALKING ABOUT A TERM LIMIT SITUATION THAT CAN'T BE PUT INTO PLACE FOR ANOTHER 50 OR 60 YEARS.

SO I THINK PUTTING IT INTO PLACE IS EXTRAORDINARY COMPLICATED.

IT DOESN'T MEAN WE CAN'T DO IT -- WE ALSO HAVE TO THINK IF WE ONLY WANT TERM LIMITS FOR THE SUPREME COURT FOR FOR THE ENTIRE JUDICIARY.

>> Braude: IS IT FAR TO SAY YOU BOTH THINK THEY'RE PROBABLY A GOOD IDEA, BUT NOT PRACTICALLY OBTAINABLE?

IS THAT NOT WHERE YOU BOTH ARE?

I THINK THAT IS CORRECT, YES?

>> THAT'S WHERE I AM.

THAT'S WHERE I AM.

BUT I THINK IT'S THE ISSUE OF IMPLEMENTATION THAT TARA IS TALKING ABOUT, WITH WHICH I AGREE.

>> Braude: JUDGE GERTNER, IF IMPLEMENTATION AND REALITY OF SOMETHING BEING ACHIEVED IS THE CRITERIA FOR YOUR JUDGMENT, HOW CAN YOU SUPPORT EXPANSION OF THE COURT?

TALK ABOUT A HEAVY LIFT, AND I THINK I'M BEING EUPHEMISTIC.

THAT IS THE HEAVIEST OF LIFTS, IS IT NOT?

WHY ARE YOU PERSUADED THAT IS THE RIGHT WAY TO GO?

>> BECAUSE IT CAN BE DONE BY LEGISLATION.

BECAUSE IT DOESN'T REQUIRE A CONSTITUTIONAL AMENDMENT.

I AGREE WITH TARA THAT IS THE REPORT WAS REALLY MASTERFUL AND IT WAS REALLY, REALLY IMPORTANT TO HAVE THIS DISCUSSION IN A DISPASSIONATE SETTING AND NOT THROUGH OP-EDITS OR TWITTER OR ON TELEVISION.

HAVING HAD THAT DISCUSSION, I DID NOT THINK IT WAS RIGHT TO END UP WITH, GEE, IT IS REALLY COMPLICATED.

THERE ARE LOTS OF PROBLEMS.

NOTHING WE CAN DO ABOUT IT.

>> Braude: JUDGE ME, JUDGE GERTNER -- SORRY TO INTERRUPT YOU -- ON THE MERITS, WHY IS COURT EXPANSION THE RIGHT IDEA?

>> BECAUSE WE COULD ADD, FOR EXAMPLE, TWO MORE SEATS ON THE COURT.

YES, IT WILL BE THE SUBJECT OF RATHER RANKEROUS DEBATES IN CONGRESS, NO QUESTION ABOUT IT.

AND, YES, YOU COULD PUT TWO MORE PEOPLE WHO LINE UP ALIGNING THEMSELVES WITH THE PEOPLE ALREADY ON THE COURT, BUT AT LEAST THERE IS AN OPPORTUNITY FOR CHANGE ON THE COURT IN TWO YEARS, THREE YEARS, WHATEVER.

THE POINT THAT LARRY AND I WERE MAKING IS THAT THIS COURT, FOR A VARIETY OF REASONS, IS ENTRENCHED IN A WAY THAT NO OTHER SUPREME COURT HAS EVER BEEN ENTRENCHED.

AND IT IS BREAKING THAT LOG JAM, JIM, THAT WE'RE CONCERNED ABOUT.

>> Braude: ONE LAST THING FOR YOU, JUDGE GERTNER, IF HILLARY CLINTON HAD BECOME PRESIDENT AND PICKED A LATE 40-YEAR-OLD JUSTICE AND TO 50-YEAR-OLD JUSTICES, THEY WOULD HAVE BEEN ENTRENCHED AS WELL.

WOULD YOU STILL BE SUPPORTING EXPANSION?

>> I THINK I STILL WOULD BE SUPPORTING EXPANSION.

I KNOW NO ONE WOULD BELIEVE THAT.

BUT, JIM, HERE IS WHY -- MAYBE I'M NAIVE -- BUT IT IS CLEAR FAILURE TO HOLD A HEARING ON MERRICK GARLAND, WOULD HILLARY CLINTON HAVE DONE THAT?

HOLDING A HEARING ON BARRETT WHEN PEOPLE HAD ALREADY BEGUN TO VOTE MAKES IT CLEAR HOW MANIPULATIVE THE SYSTEM IS, AND WE HAVE TO DO SOMETHING ABOUT THAT.

>> Braude: GARLAND WAS 270 DAYS BEFORE ELECTION DAY, AND BARRETT WAS 208 DAYS.

TARA, HOW ABOUT EXPANSION OF THE COURT?

>> I THINK IT IS NOT GOING TO HAPPEN, AND I ALSO THINK IT IS A VERY BAD IDEA.

>> Braude: WHY?

>> I TOTALLY UNDERSTAND THE SHORT-TERM INS TINGTS INSTINCTS IN RESPONSE TO THE TACTICS OF THIS SENATE, WITH RESPECT TO MERRICK GARLAND, GORSUCH, AND JUSTICE BARRETT AS WELL.

BUT I THINK WE HAVE TO THINK IN THE LONG-TERM, IN TERMS OF THE RISK TO JUDICIAL LEGITIMACY.

AND REALIZE IF POLITICAL FORCES TODAY TRY TO PACK OF SUPREME COURT, WE CAN SEE THE FORCES OF TOMORROW TRYING TO DO IT.

THERE ARE SOME SERIOUS ANTI-DEMOCRATIC TENDENCIES IN OUR COUNTRY THAT I THINK ARE DEEPLY DANGEROUS.

ONE OF THE THINGS THE CURRENT SUPREME COURT WAS WILLING TO DO WAS TO REJECT THE CHALLENGES OF THE 2020 ELECTION.

TO LAWYERS LIKE JUDGE GERTNER AND MYSELF, THAT IS NOT TERRIBLY IMPRESSIVE BECAUSE THE LEGAL CHALLENGES TO THE 2020 ELECTION WERE NOT GOOD, LEGAL CHALLENGES.

BUT THE REASON WE COULD ASSUME THAT THE SUPREME COURT WOULD REJECT THOSE CHALLENGES IS BECAUSE WE STILL HAVE JUSTICES WHO BELIEVE IN LAW.

MY WORRY IS IF WE OPEN UP THE DOOR TO COURT EXPANSION, WE'RE GOING TO SEE A VERY DIFFERENT TYPE OF JUDGE BEING NOMINATED, NOT ONLY TO THE U.S. SUPREME COURT BUT POTENTIALLY TO OTHER COURTS AS WELL.

I WANT TO POINT OUT IN 1937, WHEN FRANKLIN D. ROOSEVELT PROPOSED PACKING THE SUPREME COURT WITH UP TO SIX MEMBERS, POTENTIALLY MAKING A 15-MEMBER SUPREME COURT, PRESIDENT ROOSEVELT FACED A NATIONAL CRISIS.

THIS WAS THE GREAT DEPRESSION.

AND IT WAS A CONSTITUTIONAL CRISIS TO ROOSEVELT.

ROOSEVELT NELIEVED THE FEDERAL GOVERNMENT NOT ONLY HAD THE POWER, BUT HAD THE RESPONSIBILITY TO HELP PEOPLE IN THEIR DEEP TIME OF NEED IN THE GREAT DEPRESSION.

AND HE HAD OVER 70% CONTROL BY THE DEMOCRATS, IN BOTH THE HOUSE OF REPRESENTATIVES AND THE SENATE.

IF THERE WAS EVER A TIME WHEN THE NATION WAS IN A DEEP CRISIS, ONE WOULD THINK IT WOULD HAVE BEEN THE 1930s, AND YET -- >> Braude: IF I MAY INTERRUPT YOU JUST FOR A SECOND, YOU USED THE TERM "COURT PACKING" A MINUTE AGO AND WHY YOU THINK IT IS NOT A GOOD IDEA.

WOULD YOU NOT DESCRIBE WHERE MITCH McCONNELL AND THE REPUBLICANS DID AS COURT PACKING?

>> SO, TECHNICALLY NO, TO THE EXTENT COURT PACKING IS DEEMED A LEGISLATES LEGISLATIVE -- >> Braude: I UNDERSTAND.

>> I WANT TO BE CLEAR, I THINK THE REJECTION OF MERRICK GARLAND IN 2016 WAS DISGRACEFUL.

AND I THINK IT SET OFF -- IT WAS PROBABLY ONE OF THE MOST DANGEROUS THINGS THAT HAPPEN TO JUDICIAL INDEPENDENCE IN RECENT YEARS.

AND ONE CANNOT SAY THAT MITCH McCONNELL IS SOMEHOW RESOLVED OF RESPONSIBILITY FOR ANY OF THE COURT REFORM MOVEMENTS THAT HAVE HAPPENED RECENTLY.

>> Braude: IF I MAY, I ONLY HAVE 45 SECONDS LEFT LITERALLY, I WANT TO PUT UP A POLL, SUPPORT FOR THE SUPREME COURT APPROVAL IS DROPPING LIKE A ROCK.

STARTING WITH YOU, JUDGE GERTNER, VERY QUICKLY, SOMETHING HAS TO BE DONE TO RESPOND TO THAT LACK OF TRUST, DOES IT NOT?

QUICKLY.

>> THAT'S WHAT I'M RESPONDING TO.

IT IS PARTLY THAT, AND IT IS ALSO THAT THIS IS A COURT THAT DOES NOT HAVE TO DEAL WITH IDEAS OR OPINIONS OTHER THAN THEIR OWN.

I THINK, ACTUALLY, THIS IS THAT COURT THAT TARA WAS WORRIED ABOUT.

THEY'RE TALKING TO EACH OTHER AND NOT ANYBODY ELSE.

>> Braude: TARA GROVE, YOU HAVE 30 SECONDS, LITERALLY.

DOESN'T THAT -- DON'T THOSE KIND OF NUMBERS MERIT SOME RESPONSE?

>> I DO NOT BELIEVE THAT EXPANDING THE SUPREME COURT WILL APPROVE THE LEGITIMACY OR THE PUBLIC REPUTATION OF THE COURT.

I THINK IT COULD ACTUALLY CAUSE IT TO GO WAY DOWN.

>> Braude: TARA GROVE AND NANCY GERTNER, I APPRECIATE YOUR TIME ON THAT COMMISSION.

AND THANK YOU SO MUCH.

>> THANK YOU.

>> THANK YOU.

Captioned by Media Access Group at WGBH access.wgbh.org OF THE INTERNATIONAL ORGANIZATION, SEAN O'BRIEN, WILL JOIN ME ON HIS PUSH TO UNIONIZE AMAZON AND THE BROADER FIGHT FOR WORKERS ACROSS THE COUNTRY.

THAT AND MORE, TOMORROW AT 7:00.

THANKS FOR WATCHING, AND PLEASE STAY SAFE.

Captioned by Media Access Group at WGBH access.wgbh.org