♪ >>> THIS IS "METROFOCUS," WITH RAFAEL PI ROMAN, JACK FORD AND JENNA FLANAGAN.

>>> "METROFOCUS" IS MADE POSSIBLE BY -- SUE AND EDGAR WACHENHEIM III, THE PETER G. PETERSON AND JOAN GANZ COONEY FUND, BERNARD AND DENISE SCHWARTZ, BARBARA HOPE ZUCKERBERG, THE AMBROSE MONELL FOUNDATION.

AND BY -- >>> GOOD EVENING AND WELCOME TO "METROFOCUS," I AM JACK FORD.

SUPREME COURT JUSTICE STEPHEN BREYER, THE LONGEST SERVING LIBERAL MEMBER OF THE COURT ANNOUNCED THAT HE WILL RETIRE AT THE END OF THE TERM, GIVING PRESIDENT BIDEN HIS FIRST OPPORTUNITY FOR A SUPREME COURT JUSTICE PICK OF HIS PRESIDENCY.

NOW, CHOOSING A SUPREME COURT JUSTICE IS ONE OF THE MOST IMPORTANT DECISIONS A PRESIDENT CAN MAKE DURING THEIR TERMS, AS THE JUSTICES SERVE IN THEIR POSITIONS PERHAPS, IF THEY CHOOSE, FOR LIFE.

PRESIDENT BIDEN HAS ALREADY PROMISED TO NOMINATE THE FIRST EVER BLACK WOMAN TO THE HIGHEST COURT IN THE NATION, AND WITH DEMOCRATS IN CONTROL OF THE SENATE, THEY ARE IN A POSITION TO APPROVE WHOMEVER PRESIDENT BIDEN CHOOSES, SO LONG AS THE DEMOCRATS STICK TOGETHER.

THOUGH THE ADDITION OF THIS NEW JUSTICE WILL NOT CHANGE THE OVERALL IDEOLOGICAL BALANCE OF THE COURT, IT WILL STILL HAVE SIGNIFICANT IMPLICATIONS FOR THE BIGGEST ISSUES FACING AMERICANS TODAY.

JOINING US NOW TO DISCUSS JUSTICE BRAAIER'S RETIREMENT, HIS POTENTIAL REPLACEMENTS AND WHY THIS DOES, INDEED, MATTER TO ALL OF US, IS CONSTITUTIONAL LAW PROFESSOR FROM JON JAY COLLEGE OF CRIMINAL JUSTICE, GLORIA BROWNE-MARSHALL, ALSO THE AUTHOR OF MOST RECENTLY "SHE TOOK JUSTICE: THE BLACK WOMAN LAW AND POWER."

PROFESSOR, GOOD TO SEE YOU.

>> THANK YOU.

>> SO, LET'S START OFF WITH JUSTICE BREYER'S ANNOUNCEMENT.

AS YOU KNOW, AND WE'VE HEARD, AT LEAST IT'S BEEN REPORTED, THAT THERE HAD BEEN SOME PRESSURE PUT ON HIM TO STEP AWAY WHILE PRESIDENT BIDEN WOULD HAVE THE ABILITY TO APPOINT SOMEBODY NEW.

HE'S RESISTED FOR AWHILE, AT LEAST THAT'S WHAT WE'VE HEARD AND NOW HE HAS SAID, I WILL STEP AWAY.

WHY DO YOU THINK HE CHANGED HIS MIND?

>> I THINK HE SAW THE POLITICAL WINDS AND HE UNDERSTOOD, WITH ALL THIS RUMORING GOING ON THAT THE DEMOCRATS ARE GOING TO DO POORLY IN THE MIDTERM ELECTIONS, THAT THEY MAY, THE DEMOCRATS, LOSE THE SENATE OR NOT HAVE THE SAME POSITION THEY'RE IN RIGHT NOW TO ACTUALLY GET A NOMINEE THROUGH.

AND I THINK HE ALSO IS FEELING HIS AGE.

I MEAN, HE'S HAD SEVERAL ACCIDENTS IN THE PAST.

HE'S FALLEN OFF HIS BICYCLE A COUPLE OF TIMES, TRIPPED ON THE SIDEWALK.

AND HE KNOWS HE'S IN A FRAILER CONDITION THAT IF HE HAD TO STAY IN THAT SEAT THROUGH ANOTHER PRESIDENCY, THAT, YOU KNOW, HE MAY NOT HAVE MADE IT.

WE HAVE TO THINK ABOUT THIS, YOU KNOW, FOR EXAMPLE, JUSTICE THURGOOD MARSHALL, YOU KNOW, HIS SEAT WAS THEN VACATED THROUGH DEATH, HE STAYED AND WHEN HE FINALLY RETIRED, HE RETIRED SO LATE THAT IT WAS IN ANOTHER PRESIDENCY WITH GEORGE BUSH AND GEORGE BUSH GIVES US CLARENCE THOMAS.

SO, HE'S POLITICAL ENOUGH, AS MANY OF THE JUSTICES ARE, TO GET INTO THE OFFICE, SO I'M GLAD THAT HE'S POLITICAL ENOUGH TO READ THE WINDS AND KNOW THAT IT'S TIME FOR HIM TO LEAVE THE OFFICE.

>> HOW MUCH DO YOU THINK THE SCENARIO INVOLVING THE LATE JUSTICE GINSBERG, WHERE WE HAVE LEARNED AFTER HER PASSING THAT THERE WAS ALSO PRESSURE APPLIED TO HER, SUGGESTING THAT SHE SHOULD STEP AWAY WHILE IT WAS CLEAR THAT THERE WAS A DEMOCRAT IN THE HOUSE AND THAT THE SENATE WOULD ALLOW HER REPLACEMENT TO BE SEATED, SHE CHOSE NOT TO AND AS WE ALL KNOW, THERE WAS JUST A CHANGE IN POWER IN THE WHITE HOUSE AND NOW THERE IS A SOMEWHAT OF A SHIFT.

YOU CAN'T SAY A COMPLETE SEISMIC SHIFT, BUT SOMEWHAT OF A SHIFT, GIVEN THE APPOINTMENT TO FOLLOW HER.

HOW MUCH DO YOU THINK JUSTICE BREYER MIGHT HAVE LOOKED AT THAT AND SAID, YOU KNOW WHAT, MAYBE I HAVE TO REALLY, SERIOUSLY CONSIDER THIS NOW?

>> I THINK HE PROBABLY DID.

THERE WAS PRESSURE ON HIM, AS WELL AS GINSBERG, AND IT WAS PRESSURE THAT WAS KNOWN, I MEAN, IT WAS NOT A SECRET, PEOPLE WERE ASKING GINSBERG TO STEP DOWN, ESPECIALLY DURING THE OBAMA ADMINISTRATION AND IT WOULD GIVE HIM THE OPPORTUNITY TO FILL HER SEAT.

SHE SAID, AND I QUOTE, I -- THERE'S NO ONE SHE COULD SEE THAT WOULD DO A BETTER JOB.

YOU KNOW, SHE THOUGHT SHE WAS THE ONE, THAT SHE WAS THE ONLY PERSON THAT COULD SPEAK AND WRITE AND TAKE THE POSITIONS SHE TOOK TO THE LEVEL THAT SHE TOOK THEM, AND WITH THAT, WE HAD SOME DECISIONS IN AFFIRMATIVE ACTION AND IN CRIMINAL JUSTICE THAT HAD HER VOICE AND HER VOTE, BUT IN THE END, WE HAVE VERY CONSERVATIVE FUNDAMENTALIST CHRISTIAN IN AMY CONEY BARRETT WHO HAS TAKEN HER SEAT.

>> YOU MENTIONED JUSTICE GINSBERG AND HER THOUGHTS FOR WHAT HER LEGACY AND WHY SHE WANTED TO STAY ON.

HOW ABOUT JUSTICE BREYER'S LEGACY?

AS A CONSTITUTIONAL SCHOLAR, HOW DO YOU THINK HE'LL BE REMEMBERED?

>> HE SHOULD BE REMEMBERED NOT JUST AS THE LIBERAL JUSTICE.

HE WROTE MANY OPINIONS ON THE FIRST AMENDMENT, FOR FREE SPEECH.

HIS OPINION THAT HE WROTE IN THE CHEERLEADING CASE, IN WHICH WE HAD THE CHEERLEADER WHO MADE THE COMMENTS AND DIDN'T GET THE HIGH SCHOOL VARSITY SPOT SHE WANTED AND SAID ALL THESE PROFANE THINGS ON FACEBOOK AND HE WROTE ABOUT THAT, BUT HE ALSO WAS A CHAMPION FOR PEOPLE WHO OPPOSED THE DEATH PENALTY.

AND NO ONE'S REALLY SAID ANYTHING ABOUT THIS.

BUT HE WAS ONE WHO WAS VERY OUTSPOKEN WITH SAYING THERE SHOULDN'T BE A DEATH PENALTY.

AND HE WANTED US TO GO BACK AND REVISIT SOME OF THOSE SUPREME COURT CASES THAT ALLOWED THE DEATH PENALTY TO BE RE-ESTABLISHED IN THIS COUNTRY AFTER A DELAY, YOU KNOW, HIATUS OF NOT EXECUTING PEOPLE.

HE SHOULD BE KNOWN FOR THAT.

HE SHOULD ALSO BE KNOWN FOR BEING SUPPORTIVE OF WOMEN'S RIGHTS AND OF GAY RIGHTS.

AND, OF COURSE, CIVIL RIGHTS, FOR AFRICAN AMERICANS.

I REMEMBER BEING IN THE COURT MANY, MANY TIMES WHEN HE WOULD GIVE THESE VERY CONVOLUTED HYPOTHETICALS THAT WOULD LEAVE THE ATTORNEYS TRYING TO FIGURE OUT, WHAT IS HE REALLY ASKING?

AND HE WOULD ALWAYS END THEM WITH, "AND THERE IT IS."

"IT'S JUST THAT SIMPLE."

HE HAD A BRILLIANT INTELLECT.

AND HE WAS ALSO PLAYFUL.

I REMEMBER BEING IN THE PRESS ROOM WHEN JUSTICE BREYER -- AND I WAS NEW TO THE SUPREME COURT PRESS ROOM, AND THE JUSTICE CAME IN AND TOOK THE PRESS, THE SEASONED PRESS OUT TO LUNCH.

YOU KNOW, YES, BECAUSE HE REALLY WANTED -- AND I HAVE ONE OF HIS BOOKS RIGHT HERE, HE REALLY WANTED THE AMERICAN PEOPLE TO UNDERSTAND THE COURT.

UNDERSTAND THEIR ROLE.

AND THAT'S WHY HE WROTE BOOK AFTER BOOK, TALKING ABOUT THIS CONNECTION BETWEEN THE SUPREME COURT AND DEMOCRACY.

AND SO, THAT'S WHAT HE SHOULD BE KNOWN FOR, .

HIS OPINIONS, BUT ALSO, HIS DESIRE TO MAKE THE COURT ACCESSIBLE TO PEOPLE AND HELP PEOPLE TO BETTER UNDERSTAND THE ROLE OF THE COURT AND THAT'S SOMETHING THAT I GREATLY ADMIRE AND I TRY TO STAND BY IN MY OWN CLASSES, AS WELL.

>> ALSO NICE WHEN WE HEARD SO OFTEN ABOUT HIM AND WE HEARD THIS ABOUT OTHER JUSTICES, ABOUT HIS SENSE OF COLLEGIALITY.

HIS RESPECT FOR THE INSTITUTION OF THE SUPREME COURT AND HIS ATTEMPT TO MAINTAIN EVEN IN INSTANCES WHEN THERE WERE DEEP DIVIDES IN THOUGHT, IN JUDICIAL THOUGHT, TO MAINTAIN THAT COLLEGIALITY.

AND SOMETHING, IN AN ENTITY SO CONTENTIOUS, YOU KNOW THAT, OF COURSE.

LET ME ASK YOU A QUESTION, I MENTIONED THIS IN THE INTRODUCTION.

SO, IT'S REASONABLE FOR US TO ASSUME THAT WHOEVER IT IS WHO IS APPOINTED EVENTUALLY TAKES THE SEAT WOULD FALL ON THE LIBERAL END OF THE SPECTRUM, IDEOLOGICAL SPECTRUM.

SO WITH JUSTICE BREYER RIGHT NOW, YOU ESSENTIALLY HAVE A 6-3 BREAKDOWN IN TERMS OF MORE CONSERVATIVE, MORE LIBERAL.

WITH A NEW APPOINTMENT, YOU'LL MAINTAIN A 6-3 BREAKDOWN.

IF THAT'S THE CASE, WHY IS THIS APPOINTMENT SO IMPORTANT?

AND WHY SHOULD THE GENERAL PUBLIC BE CONCERNED ABOUT WHO IT IS THAT TAKES THIS SEAT?

>> WELL, I -- ONE OF THE THINGS THAT JUSTICE BREYER WANTED WAS TO REACH ACROSS THE AISLE.

I THINK IN THESE YOUNGER CONSERVATIVES, HE'S NOT SEEING THE ABILITY TO DO THAT.

AND THAT MIGHT ALSO HAVE PROMPTED HIM TO SAY, YOU KNOW, IF I CAN'T BE THAT BRIDGE, THEN WHY AM I HERE?

BUT THE OTHER THING THAT HE IS, AS, YOU KNOW, A PERSON WHO IS IN THE MINORITY, IS SOMEONE WHO CAN WRITE THE OPINIONS THAT WILL BE HISTORY, AND THAT'S WHAT JUSTICE GINSBERG TALKED ABOUT.

SHE USED TO SAY THAT SHE WAS WRITING THE OPINIONS THAT ARE IN DISSENT NOW BUT WILL BE THE MAJORITY OPINIONS IN THE FUTURE.

SO, EVEN THOUGH THE SO-CALLED LIBERAL JUSTICES ARE IN THE MINORITY NOW, THEIR MINORITY OR DISSENTING OPINIONS COULD BE THE OPINIONS THAT WE READ AS MAJORITY OPINIONS THAT BECOME THE LAW OF THE LAND IN THE FUTURE.

I ALSO THINK IT'S IMPORTANT FOR US TO KNOW THAT NO ONE CAN PREDICT HOW, WHEN AND WHY A SUPREME COURT JUSTICE DECIDES TO LEAVE.

IN A POSITION OF SUCH POWER, IN WHICH THEY SIT FOR LIFE.

AND SO, WE DON'T KNOW WHEN JUSTICE THOMAS MAY LEAVE OR WHEN GOD DECIDES TO HAVE LIFE LEAVE HIS BODY, GOD FORBID, UH-HUH.

SO, I WOULD SAY, GENERALLY, THAT WE NEED TO HAVE A BALANCED COURT, BUT WE ALSO NEED TO KNOW THAT THE POLITICAL SIDE OF THIS IS THAT YOU WANT TO HAVE AS MANY PEOPLE WHO ARE REPRESENTATIVE OF THE IDEOLOGY OF THAT PRESIDENT ON THE COURT AS POSSIBLE.

EVEN IF -- EVEN IF THEY ARE IN THE DISSENT OR THE MINORITY ON THE COURT.

SO, YOU DON'T GIVE UP A CHANCE LIKE THIS, BECAUSE THIS IS A LIFETIME APPOINTMENT.

>> RIGHT.

LET'S TALK ABOUT THAT SELECTION PROCESS A LITTLE BIT.

GIVE US A QUICK SENSE OF WHEN A PRESIDENT, HERE PRESIDENT BIDEN, IS FACED WITH THIS, WHAT'S THE PROCESS THAT THE PRESIDENT AND THE PRESIDENT'S ADVISERS, WILL FOLLOW IN ORDER FOR THEM TO SAY, OKAY, HERE'S THE PERSON, THIS IS THE PERSON I WANT.

>> WELL, THE U.S. CONSTITUTION GIVES THE PRESIDENT AS THE EXECUTIVE IN ARTICLE TWO THE POWER TO APPOINT, AND SO THAT THEY CAN APPOINT A NOMINEE.

SO, THEY CAN PRESENT A NAME, BUT IT'S WITH THE ADVICE AND CONSENT OF THE SENATE, AND THAT'S THE HEARING PROCESS THAT WE SEE.

SO, THERE'S A COMMITTEE, AND THIS IS WHAT WE SAW WITH MERRICK GARLAND.

SO, THE NAME WAS PUT FORWARD BY PRESIDENT OBAMA, MERRICK GARLAND'S NAME WAS THEN SUPPOSED TOED BE ONE -- THERE WERE INTERVIEWS OF HIM BY COMMITTEES IN THE SENATE AND THEN WITH A CERTAIN VOTE, HE IS SUPPOSED TO BE ALLOWED TO HAVE HIS INTERVIEW PROCESS BEFORE THE WHOLE SENATE.

AND, OF COURSE, THE AMERICAN PEOPLE.

UNFORTUNATELY, HIS QUESTIONING AND THE INTERVIEW PROCESS THAT WAS TAKING PLACE BEHIND CLOSED DOORS, WE'LL PUT IT THAT WAY, NEVER LED TO A VOTE THAT WOULD ALLOW HIM TO BE BEFORE THE WHOLE SENATE AND THE AMERICAN PEOPLE.

SO, WHAT WE HAVE NOW, AS YOU POINTED OUT, IS A DEMOCRATIC, YOU KNOW, ACTUALLY, IT'S TIED, BUT WITH A DEMOCRATIC VICE PRESIDENT WHO THEN BREAKS ANY TIES IN THE SENATE, WE KNOW THAT THE DEMOCRATS HAVE THE VOTE TO NOT ONLY HAVE THE NOMINEE OF PRESIDENT BIDEN GO THROUGH THE PROCESS BEHIND CLOSED DOORS, BUT TO BE VOTED OUT, SO THAT THERE WILL BE A HEARING, AND THAT'S THE ADVICE AND CONSENT, THE ACTUAL HEARING.

IT'S LIKE A GLORIFIED JOB INTERVIEW IN WHICH THE CANDIDATE IS BEING INTERVIEWED BY MEMBERS OF THE JUDICIARY COMMITTEE OF THE SENATE AND ASKED THESE QUESTIONS ABOUT HOW THEY'RE QUALIFIED, WHY THEY WANT THE JOB, WHAT THEIR BACKGROUND HAS BEEN AND WHAT THEY MIGHT DO IN THE FUTURE.

>> AGAIN, LET ME ASK, AS A CONSTITUTIONAL SCHOLAR, I'M GOING TO GET IN A MOMENT TO SOME OF THE SPECIFIC PEOPLE WHO ARE BEING MENTIONED HERE, BUT AS WE TALK ABOUT THE PROCESS AND THE HISTORY OF THE PROCESS, WE'VE SEEN IN THE LAST FEW DECADES THAT THESE HEARINGS FOR NOMINEES TO THE SUPREME COURT HAVE BEEN EXTRAORDINARILY CONTENTIOUS.

YOU CAN GO BACK TO, CERTAINLY A LOT OF PEOPLE WILL POINT TO THE HEARINGS WITH REGARD TO JUDGE ROBERT BORK AND SOME PEOPLE MAY SAY THAT WAS THE SPRINGBOARD FOR THIS, I'M NOT SURE ABOUT THAT, BUT HISTORICALLY, HAS AN APPOINTMENT BILL A PRESIDENT TO THE SUPREME COURT ALWAYS BEEN SUCH A SIGNIFICANT BATTLEGROUND?

>> WELL, REMEMBER, THERE HAVE BEEN SUPREME COURT NOMINEES WHO HAVE BEEN REJECTED OVER TIME.

ROBERT BORK WAS NOT THE FIRST ONE IN THE 1980s TO BE REJECTED.

THERE HAVE BEEN SUPREME COURT NOMINEES REJECTED OVER 100 YEARS AGO.

AND SO, AS WE START LOOKING AT THESE SUPREME COURT NOMINEES FOR WHATEVER POLITICAL REASON, AND WE HAVE TO GO BACK TO THE FACT THAT EVEN THOUGH IT'S NOT SUPPOSED TO BE ON ITS FACE A POLITICAL PROCESS, IT IS, BECAUSE WE HAVE A POLITICIAN WHO IS PUTTING FORWARD A NAME AND THAT NAME HAS TO BE THEN SCRUTINIZED BY OTHER POLITICIANS.

AND THOSE OTHER POLITICIANS CAN DECIDE IF THEY BELIEVE THIS PERSON IS GOING TO TILT THE COURT AWAY FROM THEIR INTERESTS AND, OF COURSE, WE HAVE A WIDE VARIETY OF POLITICIANS IN CONGRESS.

AND THE SENATE'S GOING TO DECIDE THIS WITH THEIR VOTE AND SO NO, IT WAS NOT AS CONTENTIOUS.

I MEAN, THE FACT THAT WE HAVE GINSBERG AND JUSTICE GINSBERG WHEN SHE WAS AN ATTORNEY WAS KNOWN FOR BEING A LEADER IN THE AREA OF WOMEN'S RIGHTS.

AND YET, SHE WAS, YOU KNOW, BECAME APART OF OUR HIGHEST COURT.

WE -- >> AND BY THE WAY, PEOPLE MIGHT BE SURPRISED THAT SHE GOT AN EXTRAORDINARILY LARGE NUMBER OF VOTES IN THE SENATE.

YES?

>> YEAH.

AND WE HAVE TO THINK OF JUSTICE SCALIA.

AND I REMEMBER BEING IN THE COURTROOM WHEN HE WAS READING SOME OF THE AFFIRMATIVE ACTION DISSENTS AND VOTING RIGHTS AND HE WOULD SAY, WELL, YOU KNOW, THEY WERE PRESSURED INTO IT, HERE WE HAVE ALL THE SENATORS, YOU KNOW, BUT TWO VOTING, BUT WHEN HE WENT UP THERE IN HIS, YOU KNOW, HEARING, THERE WAS UNANIMOUS DECISION MADE ON HIS BEHALF, SO, THE SAME VOTING PROCESS THAT GOT HIM SENT TO THE HIGHEST COURT WAS WHAT ACTUALLY HAD THE REAUTHORIZATION OF THE VOTING RIGHTS ACT.

SO, MANY PEOPLE, AND THEY WERE -- HE WAS KNOWN AS A CONSERVATIVE, HE WAS KNOWN, MANY PEOPLE UNDERSTOOD THAT JUSTICE SCALIA, WHEN HE WAS AN ATTORNEY, WAS A CONSERVATIVE.

HE WAS ONE OF THE FOUNDERS OF THE FEDERALEST S IST SOCIETY.

YET, HE HAD THE VOTE TO GET TO BE A U.S. SUPREME COURT JUSTICE.

THOSE LIBERAL VOTES.

WE CAN SEE IT ON BOTH SIDES, BUT I BELIEVE IT IS AFTER ROBERT BORK AND WHO WAS REJECTED WAS THE WORD FOR IT, HE WAS REJECTED AS A NOMINEE, EVEN THOUGH HE HAD STELLAR BACKGROUND, BUT HE WAS VERY CONSERVATIVE IN A VERY ARROGANT MANNER, THAT TURNED A LOT OF CONSERVATIVES, WE'LL SAY REPUBLICANS AT THAT POINT, THIS IS BEFORE THEY WERE CONSIDERED CONSERVATIVE AND REPUBLICAN WERE THE SAME THING, HE TURNED OFF A LOT OF PEOPLE WITH HIS PERSONALITY.

WE DON'T KNOW IF IT WAS JUST HIS POLITICS, HIS POSITION OR HIS PERSONALITY THAT TURNED OFF THE SENATE AND THEREFORE HE WAS REJECTED.

>> BUT IT IS INTERESTING, HISTORICALLY SPEAKING, AS YOU MENTIONED, YOU LOOK AT JUSTICE SCALIA, A CHAMPION OF THE CONSERVATIVE APPROACH TO THE SUPREME COURT AND JUSTICE GINSBERG, A CHAMPION OF THE LIBERAL APPROACH IN TERMS OF HER JUDICIAL PHILOSOPHY, BOTH OVERWHELMING APPROVED BY THE SENATE.

AND I WONDER IF THOSE DAYS HAVE GONE BY.

LET ME ASK YOU THIS QUESTION.

I MENTIONED, AND WE KNOW, THAT PRESIDENT BIDEN HAS SAID, AND HE SAID THIS WHEN HE WAS CAMPAIGNING, IF HE IS PRESIDENT, HIS FIRST OPPORTUNITY, HE WILL APPOINT A BLACK WOMAN TO THE BENCH.

HE SAID, IT CLEARLY IS TIME FOR THAT TO HAPPEN.

WE'VE SEEN SOME PUSH-BACK AND PROBABLY NOT SURPRISING, GIVEN THIS ERA OF HYPERPARTISANSHIP WE LIVE IN.

WE'VE SEEN PUSH-BACK BY SOME PEOPLE SAYING, YOU SHOULDN'T DECLARE IN ADVANCE.

YOU SHOULD SAY, I'M GOING TO TAKE THE MOST QUALIFIED PERSON, AND IF IT HAPPENS TO BE A BLACK WOMAN, IT'S WONDER EFL.

SENATOR CRUZ CAME OUT AND SAID, THIS IS AN INSULT TO BLACK WOMEN TO SAY THIS IN ADVANCE.

SO, YOU'RE, AGAIN, PERHAPS NOT SURPRISINGLY, THE PUSH-BACK.

WHAT ARE YOUR THOUGHTS ON THE NOTION OF A PRESIDENT, NOT SAYING, AS SUGGESTED, I'M GOING TO TAKE THE BEST PERSON, BUT SAYING I'M SPECIFICALLY GOING TO POINT TO A BLACK PERSON FOR THIS POSITION.

>> I WOULD SAY, GO BACK TO RONALD REAGAN.

I'M LOOKING FOR A WOMAN TO APPOINT TO THE U.S. SUPREME COURT AND CHOSE SANDRA DAY O'CONNOR.

THAT'S NOT SAYING SHE WAS NOT A STELLAR CANDIDATE, SHE GARAGE WALTED SECOND IN HER CLASS IN LAW SCHOOL FROM STANFORD AND SHE COULDN'T GET A JOB BECAUSE SHE WAS A WOMAN DURING THAT TIME PERIOD.

SO, THERE WAS A NEED FOR THAT FEMALE VOICE, THE NEED FOR HER PARTICULAR VOICE ON THE COURT AND YET SHE WAS A CONSERVATIVE AND THERE WAS NO PROBLEM WITH SAYING, THIS IS THE FIRST WOMAN ON THE COURT.

SO, I DON'T SEE A PROBLEM.

I THINK TED CRUZ REALLY SHOULD NOT SPEAK FOR BLACK WOMEN, BECAUSE HE CAN'T, BUT ALSO, BECAUSE HE DOESN'T HAVE ANY FIRM POSITION WHEN IT COMES TO THIS OR KNOWLEDGE.

BUT I ALSO HAVE TO SAY, THERE ARE PEOPLE WHO WILL SAY, WELL, WAIT A MINUTE, A BLACK WOMAN, YOU DON'T SAY, YOU DON'T FORECAST AHEAD OF TIME, YOU PRETEND THE POLITICAL GAME, THE RUSE OF SAYING, WE'RE GOING TO PICK THE SAME PERSON AND THEN PICK WHO YOU WANT, BUT WE KNOW THAT DONALD TRUMP SAID HE WANTED THE MOST CONSERVATIVE PERSON, HE HAD THE FEDERALIST SOCIETY VET A LIST OF CONSERVATIVES WHO WOULD BE CONSERVATIVE ON ABORTION, CONSERVATIVE ON VOTING RIGHTS, AND LOYAL TO HIM.

HE DIDN'T LOOK AT THE NAMES HIMSELF.

HE JUST TOOK THE LIST THAT WAS VOTED FOR HIM AND YET OUTSOURCED THIS TO THE FEDERALIST SOCIETY, A CONSERVATIVE LEGAL ENTITY AND THERE WAS NOT THIS SENSE AMONG TED CRUZ AND OTHERS THAT THERE WAS A PROBLEM.

SO, CONSERVATIVES SHOULD HAVE BEEN INSULTED, YOU KNOW, GIVEN THE CONCERNS THAT TED CRUZ HAS GIVEN US ABOUT JOE BIDEN'S FORECASTING OF A BLACK WOMAN NOMINEE.

>> AND AS YOU SAID, HISTORICALLY, WE'VE SEEN OTHER PRESIDENTS, INCLUDING REPUBLICAN PRESIDENTS, SAY, YOU MENTIONED WITH PRESIDENT REAGAN, IT'S TIME FOR A WOMAN TO BE THERE.

AND WE'VE SEEN THAT IN THE PAST.

LET'S TALK ABOUT SOME OF THE PEOPLE WHOSE NAMES WE HAVE HEARD HERE.

AND THE ONE THAT SEEMS TO POP UP MOST OFTEN IS JUDGE KETANJI BROWN JACKSON OF THE U.S. COURT OF APPEALS, THE DISING TICKET OF COLUMBIA.

PEOPLE OFTEN CALL THAT THE SECOND-MOST POWERFUL COURT IN THE LAND AFTER THE SUPREME COURT, BECAUSE SO MUCH COMES -- IS FUNNELED INTO THAT COURT SINCE THEY'RE IN WASHINGTON AND THE SEAT OF GOVERNMENT.

TELL US A LITTLE BIT ABOUT HER AND THE CREDENTIALS THAT SHE WOULD BRING TO THE POSITION.

>> WELL, THIS IS WHAT I FIND VERY FASCINATING ABOUT THIS WHOLE DISCUSSION, BECAUSE SOME PEOPLE HAVE SAID BECAUSE BIDEN SAID THIS, THIS IS AN AFFIRMATIVE ACTION HIRE, YOU KNOW, OF SOME KIND, WHEN THE FIRST BLACK FEMALE ATTORNEY WAS CHARLOTTE RAY IN 1872.

THE FIRST BLACK FEMALE JUDGE WAS JANE BOLAND HERE IN NEW YORK AND OF COURSE WE HAVE CONSTANCE BAKER MOTLEY, THE FIRST BLACK WOMAN TO ASCEND TO THE FEDERAL BENCH.

SO, KETANJI BROWN JACKSON FOLLOWS SUIT WITH THIS, AS SHE'S ON THE D.C. COURT OF APPEALS, MAYBE THE SECOND CIRCUIT COURT OF APPEALS, OURS, MIGHT BE AS POWERFUL, BUT THE D.C. COURT IS PROBABLY SAYING THE SAME.

BUT HERE SHE IS AT HARVARD UNIVERSITY, HARVARD LAW SCHOOL.

I MEAN, WE'RE NOT TALKING ABOUT SOMEONE THEY JUST SNATCHED OFF THE STREET.

AND I'M NOT TRYING TO BE SNIDE ABOUT THIS WHEN I SAY THAT AMY CONEYER BA BARRETT GRADUATED FROM NOTRE DAME LAW SCHOOL.

IF WE'RE GOING TO BE TALKING ABOUT CREDENTIALS, WE'RE TALKING ABOUT PEOPLE WHO HAVE SHOWN THEY ARE BRILLIANT IN THE JOB, AND WHAT WE NEED IN A U.S. SUPREME COURT JUSTICE IS SOMEONE OF EXCELLENT INTELLECT AND INTEGRITY AND KETANJI BROWN JACKSON HAS THAT.

>> I THINK, AND I SAY THIS -- I'M AN INDEPENDENT, BUT I SAY THAT SOMEBODY WHO MADE A LIVING INSIDE OF THE COURTROOM FOR A LOT OF YEARS AS A TRIAL LAWYER AND PROSECUTOR, ONE OF THE THINGS THAT I SEE IN JUDGE KETANJI BROWN JACKSON IS, IN ADIX TO THOSE CREDENTIALS, AND AS YOU SAID, I THINK FOR EVERY ONE OF THE NAMES I'VE SEEN PUT OUT THERE SO FAR, IF YOU STRIPPED AWAY AN IDENTITY, IF YOU DIDN'T KNOW WHO THEY WERE, WHAT THEIR NAME WAS, ONLY SAW THEIR KRE DENNEN HERBALS, YOU D SAY, WOW, SHE'S IMPRESSIVE.

WHAT I REALLY LIKED ABOUT HER, SHE WAS A FEDERAL PUBLIC DEFENDER.

THAT SHE WAS INSIDE A COURTROOM AND AS YOU KNOW, AND I KNOW, AND I'VE SAID THIS IN THE PAST, SOME OF THE BEST TRIAL LAWYERS I EVER SAW WERE PUBLIC DEFENDERS.

NOT NECESSARILY THE HIGH PRICED LAWYERS FROM THE BIG FIRM, BUT PUBLIC DEFENDERS.

YOU KNOW, THIS NOTION, AND WE HAVEN'T SEEN MUCH OF IT RECENTLY, BUT THE NOTION OF, LET'S GET SOMEBODY WHO MADE A LIVING IN A COURTROOM TO SIT UP IN THAT BENCH.

WHAT'S THE VALUE OF THAT, DO YOU THINK?

>> I THINK IT'S VERY VALUABLE, ESPECIALLY WHEN YOU READ SOME OF THE SUPREME COURT DECISIONS AND YOU REALIZE THAT STATE AND CITIES AND SMALL METROPOLITAN JURISDICTIONS, POLICE OFFICERS, INDIVIDUALS HAVE TO LIVE BY THESE DECISIONS.

THE U.S. SUPREME COURT CREATES THE LAW OF THE LAND, EQUAL TO THEBORDERS OF THE PRESIDENT, EQUAL TO THE FEDERAL LAWS CREATED BY THE CONGRESS, AND YET THESE WRITE IN THESE WAYS IN WHICH AN AVERAGE HUMAN BEING DOESN'T NOW HOW TO FOLLOW THEM.

HOW DOES SOMEONE IN LAW ENFORCEMENT KNOW WHAT THE LAW IS, SO THEY CAN FOLLOW IT?

SO, I THINK IT'S NECESSARY, NOT JUST THAT THEY HAVE THE SENSE OF WRITING ACCESSIBLE LAW OPINIONS FROM THE DECISIONS OF THE HIGHEST COURT, BUT THEY'VE HAD SOME BACKGROUND TO UNDERSTAND THE IMPORTANCE OF HAVING ACCESSIBLE OPINIONS THAT A REGULAR PERSON CAN UNDERSTAND.

AND ALSO, JUDGE BROWN JACKSON HAS WORKED WITH THE SENTENCING COMMISSION.

SHE HAS RELATIVES, I'VE READ, WHO ARE IN LAW ENFORCEMENT.

SHE'S HAD A RELATIVE, UNFORTUNATELY, WHO HAS BEEN INCARCERATED.

SO, SHE HAS REAL-LIFE EXPERIENCE TO UNDERSTAND THAT WHEN SOMETHING HAPPENS TO A HUMAN BEING, IT'S NOT JUST A WRITTEN DECISION, THE PERSON IS HUMAN AND THERE ARE CONSEQUENCES TO THESE SUPREME COURT DECISIONS THAT GO WELL BEYOND THE TEXTBOOK OR THE LAW BOOK IN WHICH THEY ARE PUBLISHED AND PRINTED.

>> THERE IS A WIDE ARRAY OF PEOPLE THAT ARE OUT THERE, I DON'T MENTION HER BECAUSE WE'RE LOBBYING FOR HER.

WE'VE GOT THREE MINUTES LEFT.

LET ME ASK YOU ONE QUICK QUE QUESTION.

ONE OF THE NAMES WE'VE SEEN OUT THERE IS A WOMAN WHO IS NOT A JUDGE.

THE PRESIDENT, DIRECTOR COUNSEL OF THE NAACP LEGAL DEFENSE FUND AND PEOPLE MIGHT BE SURPRISED.

I SUSPECT PEOPLE ON THE STREET WOULD SAY, YOU HAVE TO BE A JUDGE FIRST TO BE ON THE SUPREME COURT.

NOT TRUE?

>> NOT TRUE.

REMEMBER, EARL WARREN.

I THINK HAVING A BACKGROUND IN LAW IS ABOUT IT, YOU KNOW?

YOU DON'T EVEN HAVE TO BE -- IT DOESN'T SAY THAT ONE HAS TO BE A CITIZEN OF THE UNITED STATES.

>> OR A LAWYER.

>> OR A LAWYER.

>> FOR THAT MATTER.

>> YES.

AND EVEN THE PRESIDENT OF THE UNITED STATES HAS TO BE A NATURAL BORN CITIZEN, BUT SOMEONE COULD BE BORN IN ANOTHER COUNTRY AND STILL ASCEND TO THE HIGHEST COURT.

THIS IS A POSITION OF POWER THAT REQUIRES INTELLECT AND REASONING, BUT IT ALSO REQUIRES A SENSE OF WHAT THE REGULAR PERSON IS GOING THROUGH, HOW DO YOU BUILD THE BRIDGE BETWEEN WHAT THE LIFE IS IN THIS COUNTRY AND WHAT THE LAW SHOULD BE?

>> GOT A MINUTE AND A HALF LEFT HERE, SO, LAST QUESTION FOR YOU, AS I MENTIONED, YOU'VE WRITTEN ON THESE ISSUES, YOU ARE A CONSTITUTIONAL SCHOLAR, YOU WORKED YOURSELF IN, IF YOU WILL, IN THE REALITY, THE REAL WORLD OF THE LAW.

SO, WITH THIS APPOINTMENT PENDING AND THE NOTION OF A BLACK WOMAN GOING TO BE SEATED ON THE SUPREME COURT, WHAT DO YOU SAY TO YOUR STUDENTS?

WHAT DO YOU SAY THE MESSAGE IS ABOUT THIS?

>> I THINK THE MESSAGE IS, IT'S ABOUT TIME.

THIS IS A NATURAL ASCENSION.

FROM THE 1960s FROM CONSTANCE BAKER MOTLEY, I SAY, YES, THE TIME SHOULD HAVE COME.

A BLOCK WOMAN NOMINEE TO THE SUPREME COURT WAS PRESENTED TO PRESIDENT OBAMA AND HE CHOSE MERRICK GARLAND.

SO, THIS IS NOT NEW, BUT I ALSO THINK IT'S A MOMENT OF PRIDE AND UNDERSTANDING THAT THE EXCELLENCE OF THE BLACK FEMALE IS SOMETHING THAT THIS COUNTRY HAS WITNESSED IN EVERY ASPECT, IN CORPORATE ENTITIES, AS WELL AS IN ARTS, NONPROFITNONPROFITS EDUCATION.

SO, WHY NOT LEADER OF THE U.S. SUPREME COURT?

WHY NOT?

>> AND I THINK ASSUMING THIS IS GOING TO HAPPEN, YOU MIGHT NEED TO DO A NEW EDITION OF YOUR BOOK OVER YOUR SHOULDER THERE.

"SHE TOOK JUSTICE: THE BLACK WOMAN IN POWER."

TO INCLUDE THE FIRST BLACK WOMAN ON THE SUPREME COURT.

PROFESSOR GLORIA BROWNE-MARSHALL, ALWAYS A PLEASURE TO SPEND SOME TIME WITH US.

I ALWAYS FEEL LIKE NOT ONLY OUR AUDIENCE, BUT I GET TO LEARN MUCH WHEN WE HAVE A CHANCE TO CHAT WITH YOU ABOUT THIS.

WE'LL LOOK FORWARD TO TALKING WITH YOU AGAIN AS THIS WHOLE PROCESS MOVES DOWN THE ROAD AND WE CAN GET YOUR THOUGHTS ON THE DEVELOPMENT AND WHERE WE'RE HEADING AND THE CONSEQUENCES OF ALL THIS.

SO, FPROFESSOR, TAKE CARE AND WE'LL TALK TO YOU AGAIN SOON.

>> THANK YOU SO MUCH.

>> YOU BE WELL.

♪ >>> "METROFOCUS" IS MADE POSSIBLE BY -- SUE AND EDGAR WACHENHEIM III, THE PETER G. PETERSON AND JOAN GANZ COONEY FUND, BERNARD AND DENISE SCHWARTZ, BARBARA HOPE ZUCKERBERG, THE AMBROSE MONELL FOUNDATION.

AND BY --